Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 180 1.08M
Business-Combination Transaction
2: EX-3.1 Certificate of Formation 1 15K
3: EX-3.2 Limited Liability Company Agreemen 35 137K
4: EX-3.3 Articles of Incorporation 2 18K
5: EX-3.4 Acme Intermediate Finance, Inc. By-Laws 14 56K
6: EX-4.1 Indenture 148 473K
7: EX-4.2 Indenture 135 432K
9: EX-5.1-INT Exhibit 5.1-Int - Opinion Re: Legality 3 23K
8: EX-5.1-INT Intermediate Opinion 3 24K
10: EX-10.1 Stock Purchase Agreement 46 204K
19: EX-10.10 Management Agreement 14 53K
20: EX-10.11 Exhibit 10.11 - Amendment (Channel 32) 2 20K
21: EX-10.12 Exhibit 10.12 - Noncompetition Agreement for Kwbp 5 28K
22: EX-10.13 Exhibit 10.13 - Management Agreement for Station 16 50K
23: EX-10.14 Management Agreement 14 47K
24: EX-10.15 Exhibit 10.15-Wint Escrow 9 43K
25: EX-10.18 Exhibit 10.18 - Affiliation Agreement for Kwbp 21 67K
26: EX-10.19 Exhibit 10.19 - Commitment Letter From Wb 1 18K
11: EX-10.2 Exhibit 10.2 - Escrow Agreement for Kplr 14 61K
27: EX-10.20 Exhibit 10.20 - Employment Agreement With Gealy 6 33K
28: EX-10.21 Exhibit 10.21 - Employment Agreement With Allen 6 32K
29: EX-10.22 Exhibit 10.22 - Consulting Agreement With Kellner 6 30K
30: EX-10.23 Exhibit 10.23 - Commercial Building Lease for Kwbp 15 68K
31: EX-10.24 Exhibit 10.24 - Lease Agreement for Kwbp Tower 16 65K
32: EX-10.25 Exhibit 10.25 - Lease Agreement for Wbxx 22 74K
33: EX-10.26 Exhibit 10.26 - Tower Lease for Wbxx 13 38K
34: EX-10.27 Exhibit 10.27 - First Modification to Agreement 4 24K
12: EX-10.3 Exhibit 10.3 - Time Brokerage Agreement 19 69K
35: EX-10.30 Exhibit 10.30 - Studio Lease for Kplr 4 27K
36: EX-10.31 Exhibit 10.31 - Tower Lease for Kplr 26 51K
37: EX-10.32 Exhibit 10.32 - Amendment to Tower Leases for Kplr 3 22K
38: EX-10.33 Exhibit 10.33 - Koplar/Roberts - Agreement 15 69K
39: EX-10.35-INT Exhibit 10.35 - Registration Rights Agreement 34 119K
40: EX-10.36-INT Exhibit 10.36 - Membership Unitholders Agreement 31 108K
41: EX-10.37 Purchase Agreement for Intermediate 41 152K
42: EX-10.38-INT Exhibit 10.38 - Securities Pledge Agreement 21 73K
13: EX-10.4 Membership Contribution Agreement 28 102K
14: EX-10.5 Exhibit 10.5 - Asset Purchase Agreement 25 87K
15: EX-10.6 Exhibit 10.6 - Purchase Agreement for Wbxx 63 133K
16: EX-10.7 Exhibit 10.7-Asset Purchase Agreement for Kwbp 38 163K
17: EX-10.8 Exhibit 10.8 - Amendment 3 20K
18: EX-10.9 Exhibit 10.9 - Amendment (Acme) 3 18K
43: EX-21.1-INT Exhibit 21.1 - Subsidiaries 1 15K
44: EX-23.2 Consent of Experts and Counsel 1 15K
45: EX-23.3 Consents of Experts 1 15K
46: EX-23.4 Consent of Experts and Counsel 1 15K
47: EX-24.1-INT Power of Attorney - Allen 1 16K
48: EX-24.2-INT Power of Attorney - Gealy 1 16K
49: EX-24.3-INT Power of Attorney - Kellner 1 16K
50: EX-25.1-INT Exhibit 25.1-Int - Statement of Eligibility 30 106K
51: EX-27.1 Financial Data Schedule 1 19K
52: EX-99.1-INT Exhibit 99.1-Int - Letter of Transmittal 20 68K
53: EX-99.2-INT Exhibit 99.2-Int - Notice of Guaranteed Delivery 5 26K
54: EX-99.3-INT Exhibit 99.3-Int - Letter to Brokers 2 19K
55: EX-99.4-INT Exhibit 99.4-Int - Letter to Clients 2 18K
56: EX-99.5-INT Exhibit 99.5-Int - Instruction to Holder 2 19K
57: EX-99.6-INT Exhibit 99.6-Int - Guidelines for Certification 7 27K
58: EX-99.7 Consent as Member-Koplar 1 16K
59: EX-99.8 Consent as Member-Roberts 1 16K
EX-10.37 — Purchase Agreement for Intermediate
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ACME INTERMEDIATE HOLDINGS, LLC
ACME INTERMEDIATE FINANCE INC.
Units Consisting of
$71,634,000 Principal Amount at Maturity of
12% Senior Secured Discount Notes due 2005
and
71,634 Membership Units
PURCHASE AGREEMENT
September 24, 1997
CIBC WOOD GUNDY SECURITIES CORP.
425 Lexington Avenue
3rd Floor
New York, New York 10017
Ladies and Gentlemen:
ACME Intermediate Holdings, LLC, a Delaware limited liability
company (the "Company"), and ACME Intermediate Finance Inc., a Delaware
corporation ("Finance" and, together with the Company, the "Issuers"), hereby
confirm their agreement with you (the "Initial Purchaser"), as set forth below.
1. THE SECURITIES. Subject to the terms and conditions herein
contained, the Issuers propose to issue and sell to the Initial Purchaser 71,634
units (the "Units"), each Unit consisting of $1,000 aggregate principal amount
at maturity of the Issuers' 12% Senior Secured Discount Notes due 2005 (the
"Notes") and one membership unit of the Company (each, a "Membership Unit"). The
Notes are to be issued pursuant to the Indenture (the "Indenture"), dated as of
September 30, 1997, among the Issuers and Wilmington Trust Company, as trustee
(the "Trustee"). The Units, Notes and Membership Units are hereinafter referred
to collectively as the "Securities."
The Securities will be offered and sold to the Initial Purchaser
without such offers and sales being registered under the Securities Act of 1933,
as amended (together with the rules and regulations of the Securities and
Exchange Commission (the "Commission") promulgated thereunder, the "Securities
Act"), in reliance on exemptions therefrom.
In connection with the sale of the Securities, the Issuers have
prepared a preliminary offering memorandum dated
September 17, 1997, the "Preliminary Memorandum") and a final offering
memorandum dated September 24, 1997 (the "Final Memorandum"; the Preliminary
Memorandum and the Final Memorandum each herein being referred to as a
"Memorandum"), each setting forth or including a description of the terms of the
Securities, the terms of the offering of the Securities, a description of the
Company and its subsidiaries and any material developments relating to the
Company and its subsidiaries occurring after the date of the most recent
historical financial statements included therein.
The Issuers understand that the Initial Purchaser proposes to
make an offering of the Securities only on the terms and in the manner set forth
in the Memorandum and Section 9 hereof as soon as the Initial Purchaser deems
advisable after this Agreement has been executed and delivered, to persons in
the United States whom the Initial Purchaser reasonably believes to be qualified
institutional buyers ("QIBs") as defined in Rule 144A under the Securities Act,
as such rule may be amended from time to time ("Rule 144A"), in transactions
under Rule 144A, and to a limited number of institutional "accredited investors"
("Accredited Investors"), as defined in Rule 501(a)(1), (2), (3) and (7) under
Regulation D of the Securities Act, in private sales exempt from registration
under the Securities Act, and outside the United States to certain persons in
reliance on Regulation S under the Securities Act.
The Initial Purchaser and its direct and indirect transferees of
the Notes will be entitled to the benefits of the Registration Rights Agreement
dated as of the Closing Date among the parties hereto (the "Registration Rights
Agreement") pursuant to which the Issuers have agreed, among other things, to
file (i) a registration statement (the "Registration Statement") with the
Commission registering the Notes or the Exchange Notes (as defined in the
Registration Rights Agreement) under the Securities Act or (ii) a shelf
registration statement pursuant to Rule 415 under the Securities Act relating to
the resale of the Notes by holders thereof or, if applicable, relating to the
resale of Private Exchange Notes (as defined in the Registration Rights
Agreement) by the Initial Purchaser pursuant to an exchange of the Notes for
Private Exchange Notes. The
Initial Purchaser and its direct and indirect transferees of the Membership
Units will be entitled to the benefits of a Membership Unitholders Agreement
dated as of the Closing Date among the Company, ACME Parent (as defined) and the
Initial Purchaser (the "Membership Unitholders Agreement").
2
The Securities, the Indenture, the Pledge Agreement (as defined
in the Indenture), the Registration Rights Agreement, the Membership Unitholders
Agreement and this Agreement are herein collectively referred to as the "Basic
Documents".
ACME Television Holdings, LLC, a Delaware limited liability
company ("ACME Parent"), has entered into an acquisition agreement dated July
29, 1997 (the "St. Louis Acquisition Agreement") pursuant which ACME Television,
LLC, a Delaware limited liability company ("ACME Television"), has agreed to
acquire (the "St. Louis Acquisition") Station KPLR, St. Louis, Missouri (the
"St. Louis Station") and ACME Television has entered into a local marketing
agreement with respect to the St. Louis Station (the "St. Louis LMA"). In
addition, ACME Television or one of its subsidiaries has entered into (i) an
agreement dated August 22, 1997 (the "Salt Lake City Acquisition Agreement") to
construct and acquire (the "Salt Lake City Acquisition") a new television
broadcast station in Salt Lake City, Utah (the "Salt Lake City Station") (each
as described in the Final Memorandum), (ii) an agreement dated August 22, 1997
(the "Albuquerque Acquisition Agreement") to construct and acquire (the
"Albuquerque Acquisition") a new television broadcast station in Albuquerque,
New Mexico (the "Albuquerque Station") (each as described in the Final
Memorandum) and (iii) an agreement dated May 28, 1997 (the "Knoxville
Acquisition") to upgrade the studio and transmitting capabilities and acquire
(the "Knoxville Acquisition") Station WINT, Knoxville, Tennessee (the "Knoxville
Station") (each as described in the Final Memorandum). The St. Louis Acquisition
Agreement, the Salt Lake City Acquisition Agreement, the Albuquerque Acquisition
Agreement and the Knoxville Acquisition Agreement are collectively referred to
herein as the "Acquisition Agreements." The St. Louis Acquisition, the Salt Lake
City Acquisition, the Albuquerque Acquisition and the Knoxville Acquisition are
collectively referred to herein as the "Acquisitions." The St. Louis Station,
the Salt Lake City Station, the Albuquerque Station and the Knoxville Station
are collectively referred to herein as the "Acquisition Stations."
On the Closing Date, prior to or simultaneously with the closing
hereunder, (i) ACME Parent will make a capital contribution to the Company of
$21.7 million, which the Company will simultaneously contribute to the capital
of ACME Television (the "Parent Equity Contribution"), and (ii) ACME Television
and ACME Finance Corporation will issue $175,000,000 principal amount at
maturity of their 10-7/8% Senior Discount Notes due 2004 (the "ACME Television
Offering").
3
The offer, purchase and sale of the Securities as contemplated by
this Agreement, the consummation of the Revolving Credit Facility and the
Capital Lease Facilities (each as defined and described in the Final
Memorandum), the Parent Equity Contribution, the ACME Television Offering, the
St. Louis LMA and the Acquisitions are collectively referred to herein as the
"Transactions."
2. REPRESENTATIONS AND WARRANTIES OF THE ISSUERS. The Issuers,
jointly and severally, represent and warrant to and agree with the Initial
Purchaser that:
(a) Neither the Preliminary Memorandum as of the date thereof nor
the Final Memorandum nor any amendment or supplement thereto as of the
date thereof and at all times subsequent thereto up to the Closing Date
contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that the representations and warranties set forth
in this Section 2 do not apply to statements or omissions made in
reliance upon and in conformity with information relating to the Initial
Purchaser furnished to the Company in writing by the Initial Purchaser
expressly for use in the Preliminary Memorandum, the Final Memorandum or
any amendment or supplement thereto.
(b) Each of the Company and its subsidiaries set forth in EXHIBIT
A hereto (the "Subsidiaries") has been duly incorporated or otherwise
organized and each of the Company and the Subsidiaries is validly
existing and in good standing as a corporation, limited partnership or
limited liability company, as the case may be, under the laws of its
jurisdiction of incorporation or organization, with the requisite
corporate or other power and authority to own its properties and conduct
its business as now conducted as described in the Final Memorandum and
is duly qualified to do business as a foreign corporation, limited
partnership or limited liability company, as the case may be, in good
standing in all other jurisdictions where the ownership or leasing of
its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified would not,
individually or in the aggregate, have a material adverse effect on the
general affairs, management, business, condition (financial or other),
properties, prospects or results of operations of the Company and the
Subsidiaries, taken as a whole,
4
both before and after giving effect to each of the Acquisitions (any
such event, a "Material Adverse Effect"); as of the Closing Date, the
Company will have the authorized, issued and outstanding capitalization
set forth in the Final Memorandum (or, if the Final Memorandum is not in
existence, the most recent Preliminary Memorandum); except as set forth
in EXHIBIT A hereto, the Company does not have any subsidiaries or own
directly or indirectly any of the capital stock or other equity or
long-term debt securities of or have any equity interest in any other
person; all of the outstanding shares of capital stock, partnership
interests or membership units, as the case may be, of the Company and
the Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable and were not issued in violation of any
preemptive or similar rights and, except as disclosed in the Final
Memorandum, all of the outstanding shares of capital stock, partnership
interests or membership units, as the case may be, of the Subsidiaries
are owned, directly or indirectly, by the Company free and clear of all
liens, encumbrances, equities and restrictions on transferability (other
than those imposed by the Securities Act and the state securities or
"Blue Sky" laws) or voting; except as set forth in the Final Memorandum,
no options, warrants or other rights to purchase from the Company or any
Subsidiary, agreements or other obligations of the Company or any
Subsidiary to issue or other rights to convert any obligation into, or
exchange any securities for, shares of capital stock, partnership
interests or membership units of, or ownership interests in, the Company
or any Subsidiary are outstanding and no holder of securities of the
Company or any Subsidiary is entitled to have such securities registered
under the Registration Statement; and except as set forth in the Final
Memorandum, there is no agreement, understanding or arrangement among
the Company or any Subsidiary and each of their respective stockholders,
partnership interest holders or membership unit holders, as the case may
be, or any other person relating to the ownership or disposition of any
capital stock, partnership interests or membership units of the Company
or any Subsidiary or the election of directors or similar officers of
the Company or any Subsidiary or the governance of the Company's or any
Subsidiary's affairs, and, if any, such agreements, understandings and
arrangements will not be breached or violated as a result of the
execution and delivery of, or the consummation of the transactions
contemplated by, the Basic Documents or the consummation of any of the
other Transactions.
5
(c) Each of the Issuers has the requisite corporate power and
authority to execute, deliver and perform its obligations under the
Notes. The Notes have been duly and validly authorized by the Issuers
for issuance and, when executed by the Issuers and authenticated by the
Trustee in accordance with the provisions of the Indenture, and
delivered to and paid for by the Initial Purchaser in accordance with
the terms hereof, will have been duly executed, issued and delivered and
will constitute valid and legally binding obligations of the Issuers,
entitled to the benefits of the Indenture and enforceable against the
Issuers in accordance with their terms except that the enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally or (ii) general principles of
equity and the discretion of the court before which any proceeding
therefor may be brought (regardless of whether such enforcement is
considered in a proceeding at law or in equity) (collectively, the
"Enforceability Exceptions"); the Notes are in the form contemplated by
the Indenture.
(d) Each of the Issuers has the requisite corporate power and
authority to execute, deliver and perform its obligations under the
Indenture. The Indenture has been duly and validly authorized by the
Issuers and meets the requirements for qualification under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, when
executed and delivered by the Issuers (assuming the due authorization,
execution and delivery by the Trustee), will constitute a valid and
legally binding agreement of the Issuers, enforceable against the
Issuers in accordance with its terms, except that the enforcement
thereof may be limited by the Enforceability Exceptions.
(e) Each of the Company and ACME Subsidiary Holdings II, LLC
(together, the "Pledgors") has the requisite power and authority to
execute, deliver and perform its obligations under the Pledge Agreement.
The Pledge Agreement has been duly and validly authorized by the
Pledgors and, when executed and delivered by the Pledgors (assuming the
due authorization, execution and delivery by the Trustee), will
constitute a valid and legally binding agreement of the Pledgors,
enforceable against the Pledgors in accordance with its terms, except
that the enforcement thereof may be limited by the Enforceability
Exceptions.
6
(f) The Membership Units have been duly and validly authorized
for issuance by the Company and, when delivered to and paid for by the
Initial Purchaser in accordance with the terms hereof, will be validly
issued, fully paid and non-assessable; the Membership Units are in the
form contemplated by the limited liability company agreement of the
Company; no holder of a Membership Unit will be subject to personal
liability by reason of being such a holder.
(g) Each of the Company and ACME Parent has the requisite power
and authority to execute, deliver and perform its obligations under the
Membership Unitholders Agreement. The Membership Unitholders Agreement
has been duly and validly authorized by the Company and ACME Parent and,
when executed and delivered by the Company and ACME Parent, will
constitute a valid and legally binding agreement of the Company and ACME
Parent, enforceable against them in accordance with its terms, except
that the enforcement thereof may be limited by the Enforceability
Exceptions and except as any rights to indemnity or contribution
may be limited by federal and state securities laws and public policy
considerations.
(h) Each of the Issuers has the requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement. This Agreement has been duly and validly authorized by the
Issuers and, when executed and delivered by the Issuers, will constitute
a valid and legally binding agreement of the Issuers, enforceable
against the Issuers in accordance with its terms, except that the
enforcement thereof may be limited by the Enforceability Exceptions and
except as any rights to indemnity or contribution hereunder may be
limited by federal and state securities laws and public policy
considerations.
(i) Each of the Issuers has the requisite corporate power and
authority to execute, deliver and perform its obligations under the
Registration Rights Agreement. The Registration Rights Agreement has
been duly and validly authorized by the Issuers and, when executed and
delivered by the Issuers, will constitute a valid and legally binding
agreement of the Issuers, enforceable against the Issuers in accordance
with its terms, except that the enforcement thereof may be limited by
the Enforceability Exceptions and except as any rights to indemnity or
contri-
7
bution thereunder may be limited by federal and state securities laws
and public policy considerations.
(j) The Securities, the Indenture, the Membership Unitholders
Agreement and the Registration Rights Agreement conform in all material
respects to the descriptions thereof in the Final Memorandum.
(k) Each of the Limited Liability Company Agreement and Investors
Agreement of ACME Parent conforms in all material respects to the
description thereof in the Final Memorandum.
(l) (i) The Issuers have delivered to the Initial Purchaser a
true and correct copy of each of the Acquisition Agreements and the St.
Louis LMA, together with all related agreements and all schedules and
exhibits thereto, and as of the date hereof there have been no material
amendments, alterations, modifications or waivers of any of the
provisions of any of the Acquisition Agreements or the St. Louis LMA
since their date of execution or from the form in which any such
agreement has been delivered to the Initial Purchaser except for any
such amendment, modification or waiver a copy of which has been
delivered to the Initial Purchaser; and (ii) there exists as of the date
hereof (after giving effect to the transactions contemplated by each of
the Basic Documents and the other Transactions) no event or condition
that would constitute a default or an event of default by any of the
Obligors under any of the Acquisition Agreements or the St. Louis LMA
that would result in a Material Adverse Effect or materially adversely
affect the ability to consummate any of the Transactions.
(m) Except as disclosed in the Final Memorandum (including the
absence of FCC approvals with respect to the Station Acquisitions), no
consent, approval, authorization, license, qualification, exemption or
order of any court or governmental agency or body or third party is
required for the performance of any of the Basic Documents by any of the
Issuers or ACME Parent or for the consummation of any of the other
Transactions, except as has already been acquired or as may be required
under state securities or "Blue Sky" laws in connection with the
purchase and distribution of the Securities by the Initial Purchaser;
all such consents, approvals, authorizations, licenses, qualifications,
exemptions and orders set forth in the Final Memorandum which are
required to be obtained
8
by the Closing Date have been obtained or made, as the case may be, and
are in full force and effect and not the subject of any pending or, to
the best knowledge of the Issuers, threatened attack by appeal or direct
proceeding or otherwise.
(n) None of the Company or any of the Subsidiaries or ACME Parent
is (i) in violation of its certificate of incorporation or bylaws (or
similar organizational document), (ii) in breach or violation of any
statute, judgment, decree, order, rule or regulation applicable to it or
any of its properties or assets, which breach or violation would,
individually or in the aggregate, have a Material Adverse Effect, or
(iii) in default (nor has any event occurred which with notice or
passage of time, or both, would constitute a default) in the performance
or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease, license, franchise agreement, permit,
certificate or agreement or instrument to which it is a party or to
which it is subject, which default could, individually or in the
aggregate, have a Material Adverse Effect.
(o) (x) The execution, delivery and performance of Basic
Documents by the Issuers or ACME Parent and (y) except for receipt of
applicable final governmental and regulatory approvals relating to the
consummation of the Acquisitions which have not yet been obtained, the
consummation of the other Transactions will not (a) violate, conflict
with or constitute or result in a breach of or a default under (or an
event that, with notice or lapse of time, or both, would constitute a
breach of or a default under) any of (i) the terms or provisions of any
contract, indenture, mortgage, deed of trust, loan agreement, note,
lease, license, franchise agreement, permit, certificate or agreement or
instrument to which any of ACME Parent, the Company or any of the
Subsidiaries is a party or to which any of their respective properties
or assets are subject, (ii) the certificate of incorporation or bylaws
of any of ACME Parent, the Company or any of the Subsidiaries (or
similar organizational document) or (iii) (assuming compliance with all
applicable state securities or "Blue Sky" laws) any statute, judgment,
decree, order, rule or regulation of any court or governmental agency or
other body applicable to ACME Parent, the Company or any of the
Subsidiaries or any of their respective properties or assets or (b)
except as disclosed in the Fi-
9
nal Memorandum, result in the imposition of any lien upon or with
respect to any of the properties or assets now owned or hereafter
acquired by ACME Parent, the Company or any of the Subsidiaries, which
violation, conflict, breach, default or lien could, individually or in
the aggregate, have a Material Adverse Effect.
(p) The audited consolidated financial statements included in the
Final Memorandum present fairly the consolidated financial position,
results of operations and cash flows of such entities at the dates and
for the periods to which they relate and have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis; the interim unaudited consolidated financial
statements included in the Final Memorandum present fairly the
consolidated financial position, results of operations and cash flows of
such entities at the dates and for the periods to which they relate
subject to year-end audit adjustments and have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis with the audited consolidated financial statements
included therein; the summary and selected financial and statistical
data included in the Final Memorandum present fairly the information
shown therein and have been prepared and compiled on a basis consistent
with the audited financial statements included therein, except as
otherwise stated therein; and the auditors which have examined certain
of such financial statements as set forth in their reports included in
the Final Memorandum are an independent public accounting firm as
required by the Securities Act.
(q) The pro forma financial statements and other pro forma
financial information (including the notes thereto) included in the
Final Memorandum (A) have been prepared in accordance with applicable
requirements of Regulation S-X promulgated under the Securities Exchange
Act of 1934, as amended (together with the rules and regulations of the
Commission promulgated thereunder, the "Exchange Act") (other than the
information under the caption "Projected Financial Data"), and (B) have
been properly computed on the bases described therein; and the
assumptions used in the preparation of the pro forma financial
statements and other pro forma financial information included in the
Final Memorandum are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred
to therein. The Company believes that the assumptions used in the
preparation of the
10
Projected Financial Data included in the Final Memorandum are
reasonable.
(r) Except as described in the Final Memorandum, there is not
pending or, to the best knowledge of the Issuers, threatened any action,
suit, proceeding, inquiry or investigation, governmental or otherwise,
to which any of the Company or any of the Subsidiaries is a party, or to
which their respective properties or assets or, to the knowledge of the
Issuers, any of the Acquisition Stations are subject, before or brought
by any court, arbitrator or governmental agency or body, that, if
determined adversely to the Company or any such Subsidiary or with
respect to any such Acquisition Station could, individually or in the
aggregate, have a Material Adverse Effect or that seeks to restrain,
enjoin, prevent the consummation of or otherwise challenge any of the
Transactions.
(s) None of the Company or any of the Subsidiaries has, and,
after giving effect to the Transactions, will not have, any liability
for any prohibited transaction or funding deficiency or any complete or
partial withdrawal liability with respect to any pension, profit sharing
or other plan which is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), to which any of the Company
or any of the Subsidiaries makes or ever has made a contribution or in
which any employee of any of the Company or the Subsidiaries or, to the
knowledge of the Issuers, any employee of an Acquisition Station is or
has ever been a participant. With respect to such plans, the Company and
any of the Subsidiaries are, and, after giving effect to the
Transactions, will be, in compliance in all material respects with all
provisions of ERISA.
(t) Except as described in the Final Memorandum, the Company and
the Subsidiaries own or possess adequate licenses or other rights to use
all patents, trademarks, service marks, trade names, copyrights and
know-how that are necessary to conduct their business as described in
the Final Memorandum. None of the Company or any of the Subsidiaries has
received any notice of infringement of or conflict with (or knows of any
such infringement of or conflict with) asserted rights of others with
respect to any patents, trademarks, service marks, trade names,
copyrights or know-how that, if such assertion of infringement or
conflict were sustained, would, individually or in the aggregate, have a
Material Adverse Effect.
11
(u) Except as described in the Final Memorandum (including the
absence of FCC approvals with respect to the Station Acquisitions), each
of the Company and the Subsidiaries possesses all licenses, permits,
certificates, consents, orders, approvals and other authorizations from,
and has made all declarations and filings with, all federal, state,
local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals presently required or
necessary to own or lease, as the case may be, and to operate its
respective properties and to carry on its respective businesses as now
or proposed to be conducted as set forth in the Final Memorandum
("Permits"), except where the failure to obtain such Permits would not,
individually or in the aggregate, have a Material Adverse Effect; each
of the Company and the Subsidiaries has fulfilled and performed all of
its obligations with respect to such Permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of
the rights of the holder of any such Permit; and none of the Company or
the Subsidiaries has received any notice of any proceeding relating to
revocation or modification of any such Permit, except as described in
the Final Memorandum and except where such revocation or modification
would not, individually or in the aggregate, have a Material Adverse
Effect.
(v) Subsequent to the respective dates as of which information
is given in the Final Memorandum and except as described therein, (i)
the Company, the Subsidiaries and, to the knowledge of the Issuers, the
Acquisition Stations have not incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions, in either case whether or not in the ordinary course of
business, (ii) the Company and the Subsidiaries have not purchased any
of their respective outstanding capital stock, or declared, paid or
otherwise made any dividend or distribution of any kind on any of their
respective capital stock or otherwise (other than, with respect to any
of such Subsidiaries, the purchase of, or dividend or distribution on,
capital stock owned by the Company) and (iii) there shall not have been
any change in the capital stock or long-term indebtedness of the Company
or any of the Subsidiaries.
(w) There are no legal or governmental proceedings, nor are there
any contracts or other documents that would be required by the
Securities Act to be described in a
12
prospectus relating to the Securities that are not described in the
Final Memorandum.
(x) None of the Company or the Subsidiaries has taken or will
take any action that would cause this Agreement or the issuance or sale
of the Securities to violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System, in each case as in effect, or
as the same may hereafter be in effect, on the Closing Date.
(y) Each of the Company and the Subsidiaries has good and
marketable title to all real property described in the Final Memorandum
as being owned by it and good and marketable title to the leasehold
estate in the real property described therein as being leased by it,
free and clear of all liens, charges, encumbrances or restrictions,
except, in each case, as described in the Final Memorandum or such as
would not, individually or in the aggregate, have a Material Adverse
Effect. All leases, contracts and agreements, including those referred
to in the Final Memorandum to which the Company or any of the
Subsidiaries is a party or by which any of them is bound are valid and
enforceable against the Company or any such Subsidiary except that the
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally or (ii)
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought (regardless of whether such
enforcement is considered in a proceeding at law or in equity)
(collectively, the "Enforceability Exceptions"), and are, to the
knowledge of the Issuers, valid and enforceable against the other party
or parties thereto (subject to the Enforceability Exceptions) and are in
full force and effect.
(z) Each of the Company and the Subsidiaries has filed all
necessary federal, state and foreign income and franchise tax returns,
except where the failure to so file such returns would not, individually
or in the aggregate, have a Material Adverse Effect, and have paid all
taxes shown as due thereon; and other than tax deficiencies which the
Company or any Subsidiary is contesting in good faith and for which
adequate reserves have been provided in accordance with generally
accepted accounting principles, there is no tax deficiency that has been
asserted against the Company or any Subsidiary that would, indi-
13
vidually or in the aggregate, have a Material Adverse Effect.
(aa) (i) To the best knowledge of the Company, immediately after
the consummation of the Transactions, the fair value and present fair
salable value of the assets of each of the Issuers will exceed the sum
of its stated liabilities and identified contingent liabilities; and
(ii) each of the Issuers is not, nor will it be, after giving effect to
the consummation of the Transactions, (a) left with unreasonably small
capital with which to carry on its business as it is proposed to be
conducted, (b) unable to pay its debts (contingent or otherwise) as they
mature or (c) otherwise insolvent.
(bb) Except as disclosed in the Final Memorandum and except as
would not, individually or in the aggregate, have a Material Adverse
Effect, (A) each of the Company, the Subsidiaries and to the knowledge
of the Issuers, the Acquisition Stations is in compliance with all
applicable Environmental Laws, (B) each of the Company, the Subsidiaries
and to the knowledge of the Issuers, the Acquisition Stations has made
all filings and provided all notices required under any applicable
Environmental Law, and has all permits, authorizations and approvals
required to be in effect as of the date hereof under any applicable
Environmental Laws and is in compliance with their requirements, (C)
there is no civil, criminal or administrative action, suit, demand,
claim, hearing, notice of violation, investigation, proceeding, notice
or demand letter or request for information pending or, to the knowledge
of the Issuers, threatened against the Company, any of the Subsidiaries
or, to the knowledge of the Issuers, any of the Acquisition Stations
under any Environmental Law, (D) no lien, charge, encumbrance or
restriction has been recorded under any Environmental Law with respect
to any assets, facility or property owned, operated, leased or
controlled by the Company or any of the Subsidiaries or, to the
knowledge of the Issuers, any of the Acquisition Stations, (E) neither
the Company nor any of the Subsidiaries nor, to the knowledge of the
Issuers, any of the Acquisition Stations has received notice that it has
been identified as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), or any comparable state law, and (F) no
property or facility of the Company or any of the Subsidiaries or, to
the knowledge of the Issuers, any of the Acquisition Stations is (i)
listed or proposed for
14
listing on the National Priorities List under CERCLA or (ii) listed in
the Comprehensive Environmental Response, Compensation, Liability
Information System List promulgated pursuant to CERCLA, or on any
comparable list maintained by any state or local governmental authority.
For purposes of this Agreement, the following terms shall have
the following meanings: "Environmental Law" means any federal, state,
local or municipal statute, law, rule, regulation, ordinance, code,
policy or rule of common law and any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent decree or judgment binding on any of the Company or the
Subsidiaries or, to the knowledge of the Issuers, any of the Acquisition
Stations, relating to pollution or protection of the environment or
health or safety or any chemical, material or substance, that is subject
to regulation thereunder. "Environmental Claims" means any and all
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, notices of responsibility, information requests, liens,
notices of noncompliance or violation, investigations or proceedings
relating in any way to any Environmental Law.
(cc) None of the Company or the Subsidiaries is, or immediately
after the Closing Date will be, required to register as an "investment
company" or a company "controlled by" an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(dd) None of the Company or the Subsidiaries or any of such
entities' directors, officers, employees, agents or controlling persons
has taken, directly or indirectly, any action designed, or that might
reasonably be expected, to cause or result, under the Securities Act or
otherwise, in, or that has constituted, stabilization or manipulation of
the price of the Securities.
(ee) None of the Company, the Subsidiaries or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under
the Securities Act) directly, or through any agent, (i) sold, offered
for sale, solicited offers to buy or otherwise negotiated in respect of
any "security" (as defined in the Securities Act) which is or could be
integrated with the sale of the Securities in a manner that would
require the registration under the Securities Act of the Securities or
(ii) engaged in any form of general solicitation or general advertising
(as those
15
terms are used in Regulation D under the Securities Act) in connection
with the offering of the Securities or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act.
Assuming the accuracy of the representations and warranties of the
Initial Purchaser in Section 9 hereof, it is not necessary in connection
with the offer, sale and delivery of the Securities to the Initial
Purchaser in the manner contemplated by this Agreement to register any
of the Securities under the Securities Act or to qualify the Indenture
under the Trust Indenture Act.
(ff) No securities of any Issuer are of the same class (within
the meaning of Rule 144A under the Securities Act) as the Securities and
listed on a national securities exchange registered under Section 6 of
the Exchange Act, or quoted in a U.S. automated inter-dealer quotation
system.
(gg) Except as set forth in the Final Memorandum, there is no
strike, labor dispute, slowdown or work stoppage with the employees of
the Company or any of the Subsidiaries or, to the knowledge of the
Issuers, of any of the Acquisition Stations which is pending or, to the
best knowledge of the Issuers, threatened.
(hh) Each of the Company and the Subsidiaries and, to the
knowledge of the Issuers, the Acquisition Stations carries insurance
(including self-insurance) in such amounts and covering such risks as in
its reasonable determination is adequate for the conduct of its business
and the value of its properties.
(ii) Each of the Company and the Subsidiaries and, to the
knowledge of the Issuers, the Acquisition Stations (i) makes and keeps
accurate books and records and (ii) maintains internal accounting
controls which provide reasonable assurance that (A) transactions are
executed in accordance with management's authorization, (B) transactions
are recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, (C) access to
its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(jj) No holder of securities of ACME Parent, the Company or any
Subsidiary will be entitled to have such
16
securities registered under the registration statements required to be
filed by the Company pursuant to the Registration Rights Agreement other
than as expressly permitted thereby.
(kk) The statistical and market and industry-related data
included in the Final Memorandum are based on or derived from sources
which the Issuers believe to be reliable and accurate or represent the
Issuers' good faith estimates that are made on the basis of data derived
from such sources.
(ll) Except as stated in the Final Memorandum, the Issuers do not
know of any claims for services, either in the nature of a finder's fee
or financial advisory fee, with respect to the offering of the
Securities or any of the other Transactions.
(mm) None of the Company, the Subsidiaries, any of their
respective Affiliates or any person acting on its or their behalf (other
than the Initial Purchaser) has engaged in any directed selling efforts
(as that term is defined in Regulation S under the Securities Act
("Regulation S")) with respect to the Securities and the Company, the
Subsidiaries and their respective Affiliates and any person acting on
its or their behalf have acted in accordance with the offering
restrictions requirement of Regulation S.
Any certificate signed by any officer of ACME Parent, the Company
or any Subsidiary and delivered to the Initial Purchaser or to counsel for the
Initial Purchaser shall be deemed a joint and several representation and
warranty by the Issuers to the Initial Purchaser as to the matters covered
thereby.
3. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. On the basis of
the representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Issuers agree to issue
and sell to the Initial Purchaser, and the Initial Purchaser agrees to purchase
from the Issuers, the Units, at $541.60 per Unit. One or more certificates in
definitive form for the Notes and the Membership Units that the Initial
Purchaser has agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Initial Purchaser
requests upon notice to the Company at least 48 hours prior to the Closing Date
(as defined) shall be delivered by or on behalf of the Company, against payment
by or on behalf of the Initial Pur-
17
chaser, of the purchase price therefor by wire transfer of immediately available
funds to the account of the Company previously designated by it in writing. Such
delivery of and payment for the Notes and the Membership Units shall be made at
the offices of Cahill Gordon & Reindel, 80 Pine Street, New York, New York
10005, at 9:00 A.M., New York time, on September 30, 1997, or at such date as
the Initial Purchaser and the Company may agree upon, such time and date of
delivery against payment being herein referred to as the "Closing Date." The
Company will make such certificate or certificates for the Notes and the
Membership Units available for checking and packaging by the Initial Purchaser
at the offices in New York, New York of CIBC Wood Gundy Securities Corp. at
least 24 hours prior to the Closing Date.
4. OFFERING BY THE INITIAL PURCHASER. The Initial Purchaser
proposes to make an offering of the Securities at the price and upon the terms
set forth in the Final Memorandum as soon as practicable after this Agreement is
entered into and as in the judgment of the Initial Purchaser is advisable.
5. CERTAIN COVENANTS. The Issuers jointly and severally covenant
and agree with the Initial Purchaser that:
(i) The Issuers will not amend or supplement the Final
Memorandum or any amendment or supplement thereto of which the Initial
Purchaser shall not have been advised and furnished a copy for a
reasonable period of time prior to the proposed amendment or supplement
and as to which the Initial Purchaser shall not have given its consent
(which consent shall not be unreasonably withheld). The Issuers will
promptly, upon the reasonable request of the Initial Purchaser or
counsel for the Initial Purchaser, make any amendments or supplements to
the Preliminary Memorandum or the Final Memorandum that may be necessary
in connection with the resale of the Securities by the Initial
Purchaser.
(ii) The Issuers will cooperate with the Initial Purchaser in
arranging for the qualification of the Securities for offering and sale
under the securities or "Blue Sky" laws of such jurisdictions as the
Initial Purchaser may designate and will continue such qualifications in
effect for as long as may be necessary to complete the resale of the
Securities by the Initial Purchaser; PROVIDED, HOWEVER, that in
connection therewith neither Issuer shall be required to qualify as a
foreign corporation or to execute a general consent to service of
process in any juris-
18
diction or to take any other action that would subject it to general
service of process or to taxation in excess of a nominal amount in
respect of doing business in any jurisdiction in which it is not
otherwise subject.
(iii) If, at any time prior to the completion of the resale by
the Initial Purchaser of the Securities, any event shall occur as a
result of which it is necessary, in the reasonable opinion of counsel
for the Initial Purchaser, to amend or supplement the Final Memorandum
in order to make such Final Memorandum not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser,
or if for any other reason it shall be necessary to amend or supplement
the Final Memorandum in order to comply with applicable laws, rules or
regulations, the Issuers shall (subject to Section 5(i)) forthwith amend
or supplement such Final Memorandum at their own expense so that, as so
amended or supplemented, such Final Memorandum will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading and will comply with all applicable laws, rules or
regulations.
(iv) The Issuers will, without charge, provide to the Initial
Purchaser and to counsel for the Initial Purchaser as many copies of
each Preliminary Memorandum or Final Memorandum or any amendment or
supplement thereto as they may reasonably request.
(v) Neither of the Issuers or any of their respective Affiliates
will sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any "security" (as defined in the Securities
Act) which could be integrated with the sale of the Securities in a
manner which would require the registration under the Securities Act of
the Securities.
(vi) For so long as any of the Securities remain outstanding, the
Company will furnish to the Initial Purchaser (a) as soon as available,
a copy of each report or other communication (financial or otherwise) of
the Company mailed to the Trustee or holders of the Securities or
holders of other publicly traded securities of the Company or filed with
the Commission or any national securities exchange on which any class of
securities of the Company may be listed, and (b) from time to time such
other infor-
19
mation concerning the Issuers as the Initial Purchaser may reasonably
request.
(vii) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(viii) Prior to the Closing Date, the Company will furnish to the
Initial Purchaser, as soon as they have been prepared by or are
available to the Company, a copy of any unaudited interim consolidated
financial statements of the Company and the Subsidiaries, for any period
subsequent to the period covered by the most recent financial statements
appearing in the Final Memorandum.
(ix) The Company will not, and will not permit any of
Subsidiaries to, engage in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the
Securities Act) in connection with the offering of the Securities or in
any manner involving a public offering of the Securities within the
meaning of Section 4(2) of the Securities Act.
(x) For so long as any of the Securities remain outstanding, the
Company will make available at its expense, upon request, to any holder
of Securities and any prospective purchasers thereof the information
specified in Rule 144A(d)(4) under the Securities Act, unless the
Company is then subject to Section 13 or 15(d) of the Exchange Act.
(xi) The Issuers will use their best efforts to (i) permit the
Notes to be designated PORTAL securities in accordance with the rules
and regulations adopted by the National Association of Securities
Dealers, Inc. (the "NASD") relating to trading in the Private Offerings,
Resales and Trading through Automated Linkages market (the "Portal
Market") and (ii) permit the Notes to be eligible for clearance and
settlement through The Depository Trust Company.
(xii) In connection with Securities offered and sold in an
offshore transaction (as defined in Regulation S), the Issuers will not
register any transfer of such Securities not made in accordance with the
provisions of Regulation S and will not, except in accordance with the
provisions of Regulation S, if applicable, issue any such Securities in
the form of definitive securities.
20
(xiii) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provision hereof (other than by reason
of a default or omission by the Initial Purchaser of its obligations
hereunder) or if this Agreement shall be terminated by the Initial
Purchaser because of any failure or refusal on the part of the Issuers
to comply with the terms or fulfill any of the conditions of this
Agreement, the Issuers, jointly and severally, agree to reimburse the
Initial Purchaser for all reasonable out-of-pocket expenses (including
fees and expenses of counsel for the Initial Purchaser) incurred by the
Initial Purchaser in connection herewith, but in no event will the
Issuers be liable to the Initial Purchaser for damages on account of
loss of anticipated profits from the sale of the Securities.
6. EXPENSES. Notwithstanding any termination of this Agreement
(pursuant to Section 11 or otherwise), the Issuers, jointly and severally, agree
to pay the following costs and expenses and all other costs and expenses
incident to the performance by the Issuers of their obligations hereunder: (i)
the negotiation, preparation, printing, typing, reproduction, execution and
delivery of this Agreement and of the other Basic Documents, any amendment or
supplement to or modification of any of the foregoing and any and all other
documents furnished pursuant hereto or thereto or in connection herewith or
therewith; (ii) the preparation, printing or reproduction of each Preliminary
Memorandum, the Final Memorandum and each amendment or supplement to any of
them; (iii) the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies of each
Preliminary Memorandum, the Final Memorandum and all amendments or supplements
to any of them as may be reasonably requested for use in connection with the
offering and sale of the Securities; (iv) the preparation, printing,
authentication, issuance and delivery of certificates for the Notes and the
Membership Units, including any stamp taxes in connection with the original
issuance and sale of the Securities and trustees' fees; (v) the reproduction and
delivery of this Agreement and the other Basic Documents, the preliminary and
supplemental "Blue Sky" memoranda and all other agreements or documents
reproduced and delivered in connection with the offering of the Securities; (vi)
the registration or qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the several states (including filing fees and the
fees, expenses and disbursements of Cahill Gordon & Reindel, counsel to the
Initial Purchaser, relating to such registration and qualification); (vii) the
transportation and other expenses incurred
21
by or on behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (viii) the fees and expenses of the
Company's and the St. Louis Station's accountants and the fees and expenses of
counsel (including local and special counsel) for the Issuers; (ix) fees and
expenses of the Trustee including fees and expenses of its counsel; (x) all
expenses and listing fees incurred in connection with the application for
quotation of the Securities on the PORTAL Market; and (xi) any fees charged by
investment rating agencies for the rating of the Securities.
Subject to the completion of the closing hereunder, as
adjustments to the foregoing paragraph, the Issuers will not be required to
reimburse the out-of-pocket expenses of the Initial Purchaser, except for 50% of
the airplane expenses relating to item (vii), above.
7. CONDITIONS OF THE INITIAL PURCHASER'S OBLIGATIONS. The
obligation of the Initial Purchaser to purchase and pay for the Securities is
subject to the accuracy of the representations and warranties contained herein,
to the performance by the Issuers of their respective covenants and agreements
hereunder and to the following additional conditions unless waived in writing by
the Initial Purchaser:
(i) The Initial Purchaser shall have received an opinion of
counsel to the Issuers in form and substance satisfactory to the Initial
Purchaser and Cahill Gordon & Reindel, counsel to the Initial Purchaser,
dated the Closing Date, of Dickstein Shapiro Morin & Oshinsky LLP,
substantially in the form of EXHIBIT B hereto. In rendering such
opinion, Dickstein Shapiro Morin & Oshinsky LLP shall have received and
may rely upon such certificates and other documents and information,
including one or more opinions of local counsel reasonably acceptable to
the Initial Purchaser and Cahill Gordon & Reindel, counsel to the
Initial Purchaser, as they may reasonably request to pass upon such
matters.
(ii) The Initial Purchaser shall have received an opinion, dated
the Closing Date, of Cahill Gordon & Reindel, counsel to the Initial
Purchaser, with respect to the sufficiency of certain legal matters
relating to this Agreement and such other related matters as the Initial
Purchaser may require. In rendering such opinion, Cahill Gordon &
Reindel shall have received and may rely upon such certificates and
other documents and information as they may reasonably request to pass
upon such matters. In
22
addition, in rendering their opinion, Cahill Gordon & Reindel may state
that their opinion is limited to matters of New York, Delaware corporate
and federal law.
(iii) The Initial Purchaser shall have received from Coopers &
Lybrand L.L.P. and KPMG Peat Marwick LLP, independent public accountants
for the St. Louis Station and Channel 32, Incorporated, respectively,
"comfort" letters dated the date hereof and the Closing Date, in form
and substance reasonably satisfactory to the Initial Purchaser and
Cahill Gordon & Reindel, counsel to the Initial Purchaser.
(iv) The representations and warranties of the Issuers contained
in this Agreement shall be true and correct on and as of the Closing
Date; the Issuers shall have complied in all material respects with all
agreements and satisfied all conditions on their part to be performed or
satisfied hereunder at or prior to the Closing Date.
(v) (a) There shall not have been any change in the capital
stock or partners or members equity of the Company or any of the
Subsidiaries or any material increase in the consolidated short-term or
long-term debt of the Company from that set forth or contemplated in the
Final Memorandum and (b) the Company, the Subsidiaries and the
Acquisition Stations shall not have any liabilities or obligations,
contingent or otherwise (whether or not in the ordinary course of
business), that are material to the Company and the Subsidiaries, taken
as a whole, both before and after giving effect to each Acquisition,
other than those reflected in the Final Memorandum.
(vi) None of the Transactions shall be enjoined (temporarily or
permanently) and no restraining order or other injunctive order with
respect thereto shall have been issued; and there shall not have been
any legal action, order, decree or other administrative proceeding
instituted or threatened against any of the Issuers or the Acquisition
Stations or against the Initial Purchaser relating to any of the
Transactions.
(vii) Subsequent to the date of this Agreement and since the date
of the most recent financial statements in the Final Memorandum
(exclusive of any amendment or supplement thereto after the date
hereof), there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting the general
affairs,
23
management, business, condition (financial or other), properties,
prospects or results of operations of the Company and the Subsidiaries,
taken as a whole, both before and after giving effect to each
Acquisition, not contemplated by the Final Memorandum that, in the
opinion of the Initial Purchaser, would materially adversely affect the
market for the Securities, or (ii) any event or development relating to
or involving any of the Company or the Subsidiaries or any of the
officers or directors of the Company or the Subsidiaries or any of the
Acquisition Stations that makes any statement made in the Final
Memorandum untrue or that, in the opinion of the Issuers and their
counsel or the Initial Purchaser and its counsel, requires the making of
any addition to or change in the Final Memorandum in order to state a
material fact required by any applicable law, rule or regulation to be
stated therein or necessary in order to make the statements made therein
not misleading.
(viii) The Initial Purchaser shall have received certificates,
dated the Closing Date and signed by the president and the chief
financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set
forth in this Agreement are true and correct as if made on and as
of the Closing Date and the Issuers have complied in all material
respects with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to the
Closing Date.
b. The issuance and sale of the Securities pursuant to this
Agreement and the Final Memorandum and the consummation of the
Transactions have not been enjoined (temporarily or permanently)
and no restraining order or other injunctive order has been
issued and there has not been any legal action, order, decree or
other administrative proceeding instituted or threatened against
any of the Issuers relating to the issuance of the Securities or
in connection with any of the other Transactions.
c. Subsequent to the date of this Agreement and since the date of
the most recent financial statements in the Final Memorandum
(exclusive of any amendment or supplement thereto after the
24
date hereof), there has not occurred (i) any change, or any
development involving a prospective change, in or affecting the
general affairs, management, business, condition (financial or
other), properties, prospects or results of operations of the
Company and the Subsidiaries, taken as a whole, both before and
after giving effect to each Acquisition, not contemplated by the
Final Memorandum that would materially adversely affect the
market for the Securities, or (ii) any event or development
relating to or involving any of the Company or the Subsidiaries
or any of the respective officers or directors of the Company or
the Subsidiaries or any Acquisition Station that makes any
statement made in the Final Memorandum untrue or that requires
the making of any addition to or change in the Final Memorandum
in order to state a material fact required by any applicable law,
rule or regulation to be stated therein or necessary in order to
make the statements made therein not misleading.
d. (a) There has not been any change in the capital stock or
members or partners equity of the Company or any of the
Subsidiaries nor any material increase in the consolidated
short-term or long-term debt of the Company from that set forth
or contemplated in the Final Memorandum and (b) the Company, the
Subsidiaries, and the Acquisition Stations have no liabilities or
obligations, contingent or otherwise (whether or not in the
ordinary course of business), that are material to the Company
and the Subsidiaries, taken as a whole, both before and after
giving effect to our Acquisition, other than those reflected in
the Final Memorandum.
(ix) Each of the Acquisition Agreements and the St. Louis LMA
shall be in full force and effect, and there shall have been no material
amendments, alterations, modifications or waivers of any provision
thereof since the date of this Agreement (unless consented to in writing
by the Initial Purchaser).
(x) All proceedings taken in connection with the issuance of the
Securities and the transactions contemplated by this Agreement and the
other Basic Documents and all
25
documents and papers relating thereto shall be reasonably satisfactory
to the Initial Purchaser and counsel to the Initial Purchaser.
(xi) ACME Parent shall have contributed and assigned to ACME
Television all of ACME Parent's assets and rights relating to the
Acquisition Agreement, the St. Louis LMA and the Acquisition Stations
pursuant to documents satisfactory to the Initial Purchaser and its
counsel.
(xii) The Company shall have received at least $21.7 million
aggregate cash proceeds from the Parent Equity Contribution.
(xiii) The ACME Television Offering shall have been consummated
with gross proceeds to ACME Television of at least $115,000,000.
(xiv) There shall not have been any announcement by any
"nationally recognized statistical rating organization," as defined for
purposes of Rule 436(g) under the Securities Act, that (A) it is
downgrading its rating assigned to any debt securities of the Company or
any of its Subsidiaries, or (B) it is reviewing its rating assigned to
any debt securities of the Company or any of its Subsidiaries with a
view to possible downgrading, or with negative implications, or
direction not determined.
(xv) The Initial Purchaser shall have received the Registration
Rights Agreement executed by the Issuers and such agreement shall be in
full force and effect.
(xvi) The Initial Purchaser shall have received the Membership
Unitholders Agreement executed by the Company and ACME Parent and such
agreement shall be in full force and effect.
(xvii) The Trustee shall have received the Pledge Agreement duly
executed by the Pledgors, together with (i) certificates representing
all of the outstanding membership units of ACME Television and all of
the outstanding capital stock, partnership interests or membership
units, as the case may be, owned directly by the Company of each
Subsidiary (collectively, the "Pledged Securities") and (ii) UCC-1
Financing Statements with respect to each Pledgor to be filed in the
State of New York, the state of such Pledgor's incorporation or
formation and the state of such Pledgor's principal place of business.
26
(xviii) The Issuers shall have furnished or caused to be furnished
to the Initial Purchaser such further certificates and documents as the
Initial Purchaser shall have reasonably requested.
8. INDEMNIFICATION AND CONTRIBUTION. (a) Each Issuer jointly and
severally agrees to indemnify and hold harmless the Initial Purchaser, each
director, officer, employee or agent of the Initial Purchaser and each person,
if any, who controls the Initial Purchaser within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages, liabilities or expenses to which theInitial Purchaser or such
director, officer, employee, agent or controlling person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as any such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in any Preliminary Memorandum or the Final
Memorandum or any amendment or supplement thereto; or
(ii) the omission or alleged omission to state in any
Preliminary Memorandum or the Final Memorandum or any amendment or
supplement thereto, a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and will
reimburse, as incurred, the Initial Purchaser and each such director,
officer, employee, agent or controlling person for any legal or other
expenses reasonably incurred by the Initial Purchaser or such director,
officer, employee, agent or controlling person in connection with
investigating, defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability, expense or
action; PROVIDED, HOWEVER, that neither of the Issuers will be liable in
any such case to the Initial Purchaser or any director, officer,
employee, agent or controlling person of the Initial Purchaser to the
extent that any such loss, claim, damages, liability, expense or action
arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Memorandum or the Final Memorandum or any amendment or supplement
thereto in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Initial Purchaser
specifically for use therein; and PROVIDED, FURTHER, that
27
neither of the Issuers will be liable to the Initial Purchaser or any
director, officer, employee, agent or any person controlling the Initial
Purchaser with respect to any such untrue statement or omission made in
any Preliminary Memorandum that is corrected in the Final Memorandum (or
any amendment or supplement thereto) if the person asserting any such
loss, claim, damage, expense or liability purchased Securities from the
Initial Purchaser in reliance upon the Preliminary Memorandum but was
not sent or given a copy of the Final Memorandum (as amended or
supplemented) that was made available by the Company to the Initial
Purchaser at or prior to the written confirmation of the sale of the
Securities to such person, unless such failure to deliver such Final
Memorandum (as amended or supplemented) was a result of noncompliance by
the Issuers with Section 5(iv) of this Agreement. This indemnity
agreement will be in addition to any liability that the Issuers may
otherwise have to the indemnified parties. The Issuers further agree
that the indemnification, contribution and reimbursement commitments set
forth in this Section 8 shall apply whether or not the Initial Purchaser
is a formal party to any such lawsuits, claims or other proceedings.
Neither of the Issuers will without the prior written consent of the
Initial Purchaser, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification by the Initial Purchaser may be
sought hereunder (whether or not the Initial Purchaser or any person who
controls the Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act is a party to such
claim, action, suit or proceeding), unless such settlement, compromise
or consent includes an unconditional release of the Initial Purchaser
and each such director, officer, employee, agent or controlling person
from all liability arising out of such claim, action, suit or
proceeding.
(b) The Initial Purchaser will indemnify and hold harmless the
Issuers, their respective directors, officers, employees and agents and each
person, if any, who controls either of the Issuers within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act against any losses,
claims, damages or liabilities to which either of the Issuers or any such
director, officer, employee, agent or controlling person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue
28
statement of any material fact contained in any Preliminary Memorandum or the
Final Memorandum or any amendment or supplement thereto, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement was made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Initial Purchaser specifically
for use therein; and, subject to the limitation set forth immediately preceding
this clause, will reimburse, as incurred, any legal or other expenses reasonably
incurred by either of the Issuers or any such director, officer, employee, agent
or controlling person in connection with investigating or defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. This indemnity agreement will be
in addition to any liability that the Initial Purchaser may otherwise have to
the indemnified parties.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability that it may have to any indemnified party except to the extent
that such omission results in the forfeiture by the indemnifying party of
substantial rights and defenses. In case any such action is brought against any
indemnified party, and such indemnified party notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; PROVIDED, HOWEVER, that if the named
parties in any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties that are different from or additional to
those available to any such indemnifying party, then the indemnifying parties
shall not have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not
29
be liable to such indemnified party under this Section 8 for any legal or other
expenses, other than reasonable out-of-pocket costs of investigation, incurred
by such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that in connection with such action the indemnifying party shall not be liable
for the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances,
representing the indemnified parties under such paragraph (a) or paragraph (b),
as the case may be, who are parties to such action or actions); (ii) the
indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying parties; or (iii) the
indemnifying party shall have failed to assume the defense or retain counsel
reasonably satisfactory to the indemnified party. After such notice from the
indemnifying parties to such indemnified party (so long as the indemnified party
shall have informed the indemnifying parties of such action in accordance with
this Section 8 on a timely basis prior to the indemnified party seeking
indemnification hereunder), the indemnifying parties will not be liable under
this Section 8 for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party, unless such indemnified party waived its rights under this Section 8, in
which case the indemnified party may effect such a settlement without such
consent.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 8 is unavailable or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages,
expenses or liabilities (or actions in respect thereof), each indemnifying
party, in order to provide for just and equitable contribution, shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, expenses or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect (i) the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or
30
omissions or alleged statements or omissions that resulted in such losses,
claims, damages, expenses or liabilities (or actions in respect thereof). The
relative benefits received by the Issuers on the one hand and the Initial
Purchaser on the other shall be deemed to be in the same proportion as the total
proceeds from the offering of the Securities (before deducting expenses)
received by the Company bear to the total discounts and commissions received by
the Initial Purchaser. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuers on the one hand or the Initial
Purchaser on the other, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
and any other equitable considerations appropriate in the circumstances. The
amount paid or payable by a party as a result of the losses, claims, damages and
liabilities referred to above shall be deemed to include any legal or other fees
or expenses incurred by such party in connection with investigating or defending
any such claim. The Issuers and the Initial Purchaser agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Issuers on the one hand and the Initial Purchaser
on the other hand were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), the Initial Purchaser
shall not be obligated to make contributions hereunder that in the aggregate
exceed the total discounts and commissions received by the Initial Purchaser
under this Agreement, less the aggregate amount of any damages that the Initial
Purchaser has otherwise been required to pay by reason of the untrue or alleged
untrue statements, and no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each director, officer,
employee or agent of and each person, if any, who controls the Initial Purchaser
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Initial
Purchaser, and each director, officer, employee and agent of either of the
Issuers and each person, if any, who controls either of the Issuers within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Issuers.
31
(e) Notwithstanding anything to the contrary in this Section 8,
the indemnification and contribution provisions of each of the Registration
Rights Agreement and the Membership Unitholders Agreement shall govern any claim
with respect thereto.
9. OFFERING OF SECURITIES; RESTRICTIONS ON TRANSFER. (a) The
Initial Purchaser represents and warrants that it is a QIB. The Initial
Purchaser agrees with the Issuers that (i) it has not and will not solicit
offers for, or offer or sell, the Securities by any form of general solicitation
or general advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Securities Act; and (ii) it has and will solicit offers
for the Securities only from, and will offer the Securities only to, (A) in the
case of offers inside the United States (x) persons whom the Initial Purchaser
reasonably believes to be QIBs or, if any such person is buying for one or more
institutional accounts for which the person is acting as fiduciary or agent,
only when such person has represented to the Initial Purchaser that each such
account is a QIB, to whom notice has been given that such sale or delivery is
being made in reliance on Rule 144A and, in each case, in transactions under
Rule 144A or (y) a limited number of other institutional investors reasonably
believed by the Initial Purchaser to be Accredited Investors that, prior to
their purchase of the Securities, deliver to the Initial Purchaser a letter
containing the representations and agreements set forth in Appendix A to the
Final Memorandum and (B) in the case of offers outside the United States, to
persons other than U.S. persons ("foreign purchasers," which term shall include
dealers or other professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners (other than an estate or
trust)); PROVIDED, HOWEVER, that, in the case of this clause (B), in purchasing
such Securities such persons are deemed to have represented and agreed as
provided under the caption "Notice to Investors" contained in the Final
Memorandum (or, if the Final Memorandum is not in existence, the most recent
Preliminary Memorandum).
(b) The Initial Purchaser represents and warrants with respect to
offers and sales outside the United States that (i) it has and will comply with
all applicable laws and regulations in each jurisdiction in which it acquires,
offers, sells or delivers Securities or has in its possession or distributes any
Memorandum or any such other material, in all cases at its own expense; (ii) the
Securities have not been and will not be offered or sold within the United
States or to, or for the ac-
32
count or benefit of, U.S. persons except in accordance with Regulation S under
the Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act; (iii) it has offered the Securities and will
offer and sell the Securities (A) as part of its distribution at any time and
(B) otherwise until 40 days after the later of the commencement of the offering
and the Closing Date, only in accordance with Rule 903 of Regulation S and,
accordingly, neither it nor any persons acting on its behalf have engaged or
will engage in any directed selling efforts (within the meaning of Regulation S)
with respect to the Securities, and any such persons have complied and will
comply with the offering restrictions requirement of Regulation S; and (iv) it
agrees that, at or prior to confirmation of sales of the Securities, it will
have sent to each distributor, dealer or person receiving a selling concession,
fee or other remuneration that purchases Securities from it during the
restricted period a confirmation or notice to substantially the following
effect:
"The securities covered hereby have not been registered under the United
States Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of the distribution of the
securities at any time or (ii) otherwise until 40 days after the later
of the commencement of the offering and the closing date of the
offering, except in either case in accordance with Regulation S (or Rule
144A if available) under the Securities Act. Terms used above have the
meaning given to them in Regulation S."
Terms used in this Section 9 and not defined in this Agreement have the meanings
given to them in Regulation S.
10. SURVIVAL CLAUSE. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Issuers, their
respective officers and the Initial Purchaser set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Issuers, any of their respective officers or directors, the
Initial Purchaser or any controlling person referred to in Section 8 hereof and
(ii) delivery of, payment for or disposition of the Securities, and shall be
binding upon and shall inure to the benefit of any successors, assigns, heirs or
personal representatives of the Issuers, the Initial Purchaser and indemnified
parties referred
33
to in Section 8 hereof. The respective agreements, covenants, indemnities and
other statements set forth in Sections 6 and 8 hereof shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement.
11. TERMINATION. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchaser by notice to the Company given in the event
that the Issuers shall have failed, refused or been unable to satisfy all
conditions on their part to be performed or satisfied hereunder on or prior to
the Closing Date or if at or prior to the Closing Date:
(i) any of the Company, the Subsidiaries or the Acquisition
Stations shall have sustained any loss or interference with respect to
their respective businesses or properties from fire, flood, hurricane,
earthquake, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental
proceeding, which loss or interference, in the sole judgment of the
Initial Purchaser, has had or has a material adverse effect on the
general affairs, management, business, condition (financial or other),
properties, prospects or results of operations of the Company and the
Subsidiaries, taken as a whole, both before and after giving effect to
each Acquisition, or there shall have been any material adverse change,
or any development involving a prospective material adverse change
(including without limitation a change in management or control of the
Company or any Subsidiary), in the general affairs, management,
business, condition (financial or other), properties, prospects or
results of operations of the Company and the Subsidiaries, taken as a
whole, both before and after giving effect to each Acquisition, except
as described in or contemplated by the Final Memorandum (exclusive of
any amendment or supplement thereto);
(ii) trading in securities of the Company or any Subsidiary or in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the NASDAQ National Market shall have been suspended or
minimum or maximum prices shall have been established on any such
exchange;
(iii) a banking moratorium shall have been declared by New York
or United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any for-
34
eign power, (B) an outbreak or escalation of any other insurrection or
armed conflict involving the United States or any other national or
international calamity or emergency, or (C) any material change in the
financial markets of the United States that, in the case of (A), (B) or
(C) above, in the sole judgment of the Initial Purchaser, makes it
impracticable or inadvisable to proceed with the delivery of the
Securities as contemplated by the Final Memorandum, as amended as of the
date hereof; or
(v) any securities of the Company or any of the Subsidiaries
shall have been downgraded or placed on any "watch list" for possible
downgrading by any nationally recognized statistical rating
organization.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided in
Section 10 hereof.
12. NOTICES. All communications hereunder shall be in writing
and, if sent to the Initial Purchaser, shall be hand delivered, mailed by
first-class mail, couriered by next-day air courier or telecopied and confirmed
in writing to CIBC Wood Gundy Securities Corp., 425 Lexington Avenue, 3rd Floor,
New York, New York 10017, Attention: Corporate Finance Department, and with a
copy to Cahill Gordon & Reindel, 80 Pine Street, New York, New York 10005,
Attention: Roger Meltzer, Esq. If sent to either of the Issuers, shall be
mailed, delivered or telecopied and confirmed in writing, to ACME Intermediate
Holdings, LLC, c/o ACME Television, LLC, Suite 850, 650 Town Center Drive, Costa
Mesa, California 92626, Attention: Chief Financial Officer, and with a copy to
Dickstein Shapiro Morin & Oshinsky, 2101 L Street NW, Washington, DC 20037,
Attention: Emanuel Faust, Jr., Esq.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being timely delivered to a next-day air courier guaranteeing overnight
delivery; and when receipt is acknowledged by the addressee, if telecopied.
13. SUCCESSORS. This Agreement shall inure to the benefit of and
be binding upon the Initial Purchaser and each of the Issuers and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person
35
any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Issuers contained in Section 8 of this Agreement shall
also be for the benefit of the directors, officers, employees and agents and any
person or persons who control the Initial Purchaser within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Initial Purchaser contained in Section 8 of this Agreement
shall also be for the benefit of the directors, officers, employees and agents
of the Issuers and any person or persons who control either Issuer within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.
No purchaser of Securities from theInitial Purchaser will be deemed a successor
because of such purchase.
14. NO WAIVER; MODIFICATIONS IN WRITING. No failure or delay on
the part of either Issuer or the Initial Purchaser in exercising any right,
power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to either Issuer or the Initial Purchaser at law
or in equity or otherwise. No waiver of or consent to any departure by either
Issuer or the Initial Purchaser from any provision of this Agreement shall be
effective unless signed in writing by the party entitled to the benefit thereof,
PROVIDED that notice of any such waiver shall be given to each party hereto as
set forth below. Except as otherwise provided herein, no amendment, modification
or termination of any provision of this Agreement shall be effective unless
signed in writing by or on behalf of each of the Issuers and the Initial
Purchaser. Any amendment, supplement or modification of or to any provision of
this Agreement, any waiver of any provision of this Agreement, and any consent
to any departure by the Issuers or the Initial Purchaser from the terms of any
provision of this Agreement shall be effective only in the specific instance and
for the specific purpose for which made or given. Except where notice is
specifically required by this Agreement, no notice to or demand on the Issuers
in any case shall entitle the Issuers to any other or further notice or demand
in similar or other circumstances.
36
15. INFORMATION SUPPLIED BY THE INITIAL PURCHASER. The statements
set forth in the last two sentences of the third paragraph and the third
sentence of the fifth paragraph, in each case under the heading "Plan of
Distribution" in the Final Memorandum (to the extent such statements relate to
the Initial Purchaser) constitute the only information furnished by the Initial
Purchaser to the Company for purposes of Section 8 hereof.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto and supersedes all prior agreements,
understandings and arrangements, oral or written, among the parties hereto with
respect to the subject matter hereof.
17. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19. JOINT AND SEVERAL OBLIGATIONS. All of the obligations of the
Issuers hereunder shall be joint and several obligations of each of them.
37
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this Agreement shall constitute a binding agreement among the Issuers
and the Initial Purchaser.
Very truly yours,
ACME INTERMEDIATE HOLDINGS, LLC
By: ACME Television Holdings, LLC
its majority member
By:/s/Douglas E. Gealy
--------------------------------
Name: Douglas E. Gealy
Title: President
ACME INTERMEDIATE FINANCE INC.
By:/s/Douglas E. Gealy
--------------------------------
Name: Douglas E. Gealy
Title: President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CIBC WOOD GUNDY SECURITIES CORP.
By:/s/Andrew R. Meyer
-----------------------------
Name: Andrew R. Meyer
Title: Managing Director
36
EXHIBIT A
[Enlarge/Download Table]
---------------------------- -------------------------- ---------------------------------
Outstanding Ownership of
SUBSIDIARIES EQUITY INTERESTS EQUITY INTERESTS
---------------------------- -------------------------- ---------------------------------
---------------------------- -------------------------- ---------------------------------
ACME Subsidiary Holdings Membership Units ACME Intermediate (100%)
II, LLC
---------------------------- -------------------------- ---------------------------------
---------------------------- -------------------------- ---------------------------------
ACME Intermediate Finance, Common Stock ACME Intermediate (100%)
Inc.
---------------------------- -------------------------- ---------------------------------
---------------------------- -------------------------- ---------------------------------
ACME Television, LLC Membership Units ACME Intermediate (99.5%)
ACME Subsidiary Holdings II
(0.5%)
---------------------------- -------------------------- ---------------------------------
---------------------------- -------------------------- ---------------------------------
ACME Finance Corporation Common Stock ACME Television (100%)
---------------------------- -------------------------- ---------------------------------
---------------------------- -------------------------- ---------------------------------
ACME Television Licenses Common Stock ACME Television (100%)1
of Missouri, Inc.
---------------------------- -------------------------- ---------------------------------
---------------------------- -------------------------- ---------------------------------
ACME Television Holdings Membership Units ACME Television (99%) ACME
of Oregon, LLC Licenses - Oregon (1%)
---------------------------- -------------------------- ---------------------------------
---------------------------- -------------------------- ---------------------------------
ACME Television Holdings Membership Units ACME Television (99%)
of Tennessee, LLC ACME Licenses - Tennessee (1%)
---------------------------- -------------------------- ---------------------------------
---------------------------- -------------------------- ---------------------------------
ACME Television Holdings Membership Units ACME Television (99.5%)
of Utah, LLC ACME Subsidiary Holdings III
(0.5%)
---------------------------- -------------------------- ---------------------------------
---------------------------- -------------------------- ---------------------------------
ACME Television Holdings Membership Units ACME Television (99.5%)
of New Mexico, LLC ACME Subsidiary Holdings III
(0.5%)
---------------------------- -------------------------- ---------------------------------
---------------------------- -------------------------- ---------------------------------
ACME Television Licenses Membership Units ACME Holdings - Oregon (99%)
of Oregon, LLC ACME Television - Oregon (1%)
---------------------------- -------------------------- ---------------------------------
---------------------------- -------------------------- ---------------------------------
ACME Television Licenses Membership Units ACME Holdings - Tennessee (99%)
of Tennessee, LLC ACME Television - Tennessee (1%)
---------------------------- -------------------------- ---------------------------------
---------------------------- -------------------------- ---------------------------------
ACME Television Licenses Membership Units ACME Television (99.5%)
of New Mexico, LLC ACME Subsidiary Holdings III
(0.5%)
---------------------------- -------------------------- ---------------------------------
---------------------------- -------------------------- ---------------------------------
ACME Television of Oregon, Membership Units ACME Holdings - Oregon (99%)
LLC ACME Licenses - Oregon (1%)
---------------------------- -------------------------- ---------------------------------
---------------------------- -------------------------- ---------------------------------
ACME Television of Membership Units ACME Holdings - Tennessee (99%)
Tennessee, LLC ACME Licenses - Tennessee (1%)
---------------------------- -------------------------- ---------------------------------
<FN>
---------------------------------------------
1 In addition, ACME Telvision will lend approximately $135 to $146 million to
ACME Licenses-Missouri on a long term basis.
</FN>
EXHIBIT B - FORM OF OPINION OF DICKSTEIN SHAPIRO MORIN & OSHINSKY LLP
has been intentionally omitted by the Registrants. A copy of this omitted
Exhibit B will be provided to the Securities and Exchange Commission upon
request.
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 11/19/97 | | | | | | | None on these Dates |
| Filed on: | | 11/14/97 |
| | 9/30/97 | | 1 | | 18 |
| | 9/24/97 | | 1 | | 2 |
| | 9/17/97 | | 2 |
| | 8/22/97 | | 3 |
| | 7/29/97 | | 3 |
| | 5/28/97 | | 3 |
| List all Filings |
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