<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACTS OF 1934
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1998
COMMISSION FILE NUMBERS:
ACME Intermediate Holdings, LLC 333-40277
ACME Television, LLC 333-40281
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ACME TELEVISION, LLC
AND
ACME INTERMEDIATE HOLDINGS, LLC
(Exact name of registrants as specified in their charter)
---------------
<TABLE>
Delaware ACME Intermediate Holdings, LLC 52-2050589
Delaware ACME Television, LLC 52-2050588
<S> <C> <C>
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
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2101 E. FOURTH STREET, SUITE 202
SANTA ANA, CA 92705
(714) 245-9499
(Address and Telephone Number of Principal Executive Offices)
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Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrants (1) have filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) have been subject to such filing
requirements for the past 90 days. Yes [ ] No [X]
100% of the membership units of ACME TELEVISION, LLC are owned directly or
indirectly by ACME INTERMEDIATE HOLDINGS, LLC. 92% of the membership units of
ACME INTERMEDIATE HOLDINGS, LLC are owned by ACME Television Holdings, LLC. Such
membership units are not publicly traded and have no quantifiable market value.
The number of membership units outstanding of each of ACME Television, LLC's
classes of equity at March 31, 1999, were 200 membership units, without par
value.
The number of membership units outstanding of each of ACME Intermediate
Holdings, LLC's classes of equity at March 31, 1999, were 910,986 membership
units without par value.
<PAGE> 2
ACME TELEVISION, LLC AND
ACME INTERMEDIATE HOLDINGS, LLC
ANNUAL REPORT ON FORM 10-K
For the year ended December 31, 1998
INDEX
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Page
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PART I
Item 1. Description of Business ............................................................ 3
Item 2. Properties ......................................................................... 11
Item 3. Legal Proceedings .................................................................. 11
Item 4. Submission of Matters to a Vote of Security Holders ................................ 11
PART II
Item 5. Market for Membership Units and Related Member Matters ............................. 12
Item 6. Selected Financial Data ............................................................ 12
Item 7. Management's Discussion and Analysis ............................................... 12
Item 8. Financial Statements and Supplementary Data:
Independent Auditors' Report ....................................................... 15
Consolidated Balance Sheets ........................................................ 16
Consolidated Statements of Operations .............................................. 17
Consolidated Statements of Members' Capital ........................................ 18
Consolidated Statements of Cash Flows .............................................. 19
Notes to Consolidated Financial Statements ......................................... 20
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure 30
PART III
Item 10. Directors and Executive Officers of the Registrant ............................... 30
Item 11. Executive Compensation ........................................................... 31
Item 12. Security Ownership of Certain Beneficial Owners and Management ................... 33
Item 13. Certain Relationships and Related Transactions ................................... 34
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K .................. 34
Exhibit
Exhibit 21.0 Subsidiaries
Schedule II - Valuation and Qualifying Accounts
</TABLE>
<PAGE> 3
This document contains forward-looking statements. In addition, when used in
this document, the words "intends to", "believes", "anticipates", "expects" and
similar expressions are intended to identify forward-looking statements. Such
statements are subject to a number of risks and uncertainties. Actual results in
the future could differ materially and adversely from those described in the
forward-looking statements. Differences could come about as a result of various
important factors including but not limited to: the impact of changes in
national and regional economies, successful integration of acquired television
stations, completion of pending acquisitions, pricing fluctuations in local and
national advertising, implementation of Year 2000 compliance measures, and
volatility in programming costs. The Company undertakes no obligation to
publicly release the result of any revisions to these forward-looking statements
that may be made to reflect any future events or circumstances.
Certain Definitions and Market and Industry Data
Unless otherwise indicated, information set forth herein as to designated market
area, rank demographic statistics, station audience and revenue share and number
of commercial broadcasters is as currently reported by BIA Publications, Inc. or
by A.C. Nielsen Company. Set forth below are certain terms commonly used in the
broadcast television industry that are used throughout this report. Unless the
context otherwise requires, such terms shall have the respective meanings set
forth below.
<TABLE>
<S> <C>
DMA.............................. Designated Market Area. There are 211 DMAs
in the United States with each county in the
continental United States assigned uniquely
to one DMA. Ranking of DMAs is based upon
Nielsen Media Research estimates of the
number of television households.
LMA.............................. Local marketing agreement, time brokerage
agreement or similar arrangement between a
broadcaster and a station licensee pursuant
to which the broadcaster provides
programming to, sells advertising time for
and funds operating expenses for the
applicable station, manages certain station
activities, and retains the advertising
revenues of such station, in exchange for
fees paid to the licensee.
Syndicated programming........... Programming purchased from production
studios to be broadcast during non-network
time periods. Syndicated programming
includes both original programming and
previously broadcast programming.
</TABLE>
PART 1
ITEM 1. BUSINESS
This integrated Form 10-K is filed pursuant to the Securities Exchange Act of
1934, as amended, for each of ACME Intermediate Holdings, LLC ("ACME
Intermediate") and its subsidiary, ACME Television, LLC ("ACME Television").
Separate financial information has been provided for each entity and, where
appropriate, separate disclosure. Unless the context requires otherwise,
references to the "Company" refers to both ACME Intermediate and ACME
Television.
ACME Intermediate is a holding company with no assets or independent operations
other than its investment in it's wholly-owned subsidiary, ACME Television. The
Company, through its subsidiaries, owns and/or operates six commercially
licensed broadcast television stations (the "Stations" or "Subsidiaries")
located throughout the United States.
Formation
ACME Intermediate and ACME Television were formed in August 1997. Upon
formation, ACME Intermediate received a contribution from its parent holding
company, ACME Television Holdings, LLC ("ACME Parent"), of ACME Parent's wholly
owned subsidiaries - ACME Television of Oregon, LLC ("ACME Oregon") and ACME
Television of Tennessee, LLC ("ACME Tennessee") and certain other net assets.
This contribution of $25.4 million (including cash of $2.4 million) was made in
exchange for membership units in ACME Intermediate and was treated as a
transaction between entities under common control. ACME Intermediate, in turn,
contributed these assets to ACME Television in exchange for membership units in
ACME Television.
In addition, in September 1997, ACME Parent made an additional contribution of
$21.7 million in exchange for membership units in ACME Intermediate. ACME
Intermediate, on that same date, made a contribution of $60 million to ACME
Television in exchange for membership units in ACME Television.
ACME Parent owns, directly and indirectly, approximately 92% of the outstanding
members units of ACME Intermediate. ACME Intermediate owns, directly or
indirectly, 100% of the outstanding members units of the Company.
Strategy
The Company's general strategy is to selectively acquire either underperforming
stations or construction permits ("CP's") and operate them as affiliates of The
WB Network. The Company seeks to improve operating results, maximize revenues
and EBITDA and thereby increase the value of its stations.
The Company targets stations or CP's in markets with estimated television
advertising revenue of $40 million to $225 million and where its stations can
operate as one of five to seven commercial broadcasters in the market. The
Company believes that medium-sized markets are generally less competitive than
are larger markets because of the more limited number of commercial broadcasters
in medium-sized markets. As a result, the Company believes that operating
television stations in less competitive markets offers greater opportunities to
build and maintain audience share and generate revenues. The Company targets
markets with diversified economies and favorable projections of population and
television advertising revenue growth.
The Company centralizes its program scheduling, purchases of syndicated
programming, national sales and certain treasury and accounting functions
within its corporate offices. Management believes that by using the purchasing
power of its current six stations, it will be able to reduce overall costs
and enjoy significantly lower rates than would be available on an individual
station basis.
Station Overview
The Company owns and operates six television stations as described in the
table below. All of the Company's stations operate in medium-sized markets
ranked on a television household basis, between the 20th and 85th largest in the
U.S. Each station is affiliated with The WB Network.
<PAGE> 4
The following table sets forth certain information with regard to each of the
Company's operating subsidiaries as of December 31, 1998:
<TABLE>
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STATION
CALL CHANNEL MARKET DATE OF DATE
STATIONS DMA LETTERS NUMBER RANK LMA ACQUIRED
-------- ------------ ------- ------ ---- ------------ ------------------
<S> <C> <C> <C> <C> <C> <C>
ACME Television of Missouri, Inc. St. Louis KPLR 11 21 October 1997 March 1998
ACME Television of Oregon, LLC Portland KWBP 32 23 January 1997 June 1997
ACME Television of Utah, LLC Salt Lake City KUWB 30 36 April 1998 January 1998(1)
KUPX 16 36 January 1998(1)(2)
ACME Television of New Mexico, LLC Albuquerque KWBQ 19 49 N/A January 1998(3)
ACME Television of Tennessee, LLC Knoxville WBXX 20 63 N/A October 1997
ACME Television of Florida, LLC Ft. Myers/Naples WTVK 46 83 March 1998 June 1998
</TABLE>
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(1) The Company has entered into a transaction to acquire KUWB in exchange for
KUPX pursuant to an asset swap arrangement.
(2) The Company owned a 49% interest as of December 31, 1998 and has
subsequently acquired the remaining 51% in February 1999.
(3) Station KWBQ began broadcasting in March 1999.
KPLR-11: St. Louis, MO
Station KPLR operates in the St. Louis market, which is the 21st largest DMA in
the U.S. The St. Louis DMA has approximately 1.1 million television households
and a total population of approximately 2.8 million. KPLR commenced broadcasting
in 1959 and has been affiliated with The WB Network since its launch in 1995.
The station currently competes against four other commercial television
broadcasters in the market. For the November 1998 sweep period, Station KPLR
ranked 4th in its market (7:00 a.m. to 1:00 a.m.) in terms of audience ratings
amongst adults aged 18-49, a key selling demographic. Among all domestic
broadcast stations affiliated with The WB Network, UPN or operated as an
independent station, KPLR was ranked the number four station in the U.S.,
sign-on to sign-off, on the basis of household ratings and audience share.
Station KPLR's non-network programming emphasizes both programs of local appeal,
such as St. Louis Cardinals baseball, St. Louis Blues hockey, late evening
newscasts, and quality syndicated programs, such as Friends, Seinfeld, Cheers,
Living Single, Martin, Boy Meets World and Mad About You.
KWBP-32: Portland, OR
Station KWBP operates in the Portland market, which is the 23rd largest DMA in
the U.S. The Portland DMA has approximately 1.0 million television households
and a total population of approximately 2.5 million. Station KWBP competes
against six other commercial broadcasters in the market. The station has been
affiliated with The WB Network since the network's launch in 1995. The station's
syndicated programming and future broadcast rights include: Cops, Full House,
Star Trek: The Next Generation, The Drew Carey Show, Jerry Springer, Caroline in
the City and King of the Hill.
<PAGE> 5
KUWB-30: Salt Lake City, UT
The Company commenced managing Station KUWB in Salt Lake City during the second
quarter of 1998. The Salt Lake City market is the 36th largest DMA in the U.S.
The Salt Lake DMA has approximately 707,000 television households and a total
population of approximately 2.1 million. KUWB competes against six other
commercial television broadcasters in the market, and has been affiliated with
The WB Network since April 1998. The station's syndicated programming and future
broadcast rights include: Cheers, Full House, Fresh Prince of Bel Air, Jerry
Springer, Sister Sister, Drew Carey, Star Trek: The Next Generation, Sabrina the
Teenage Witch and Spin City.
KWBQ-19: Albuquerque-Santa Fe, NM
Station KWBQ is a newly constructed station that began broadcast operations
subsequent to the year ended December 31, 1998 and serves the Albuquerque/Santa
Fe market. The Albuquerque/Santa Fe market is the 49th largest DMA in the U.S.
with approximately 566,000 television households and a total population of 1.5
million. This station competes against six other commercial television
broadcasters. The station has syndicated programming and future broadcast rights
that include: Full House, Roseanne, Step by Step, Star Trek: The Next
Generation, Caroline in the City, Spin City, Sabrina the Teenage Witch, King of
the Hill and StarTrek: Voyager.
WBXX-20: Knoxville, TN
The Knoxville, TN, market in which WBXX operates is the 63rd largest DMA in the
U.S. The Knoxville DMA has approximately 447,000 television households and a
total population of 1.1 million. WBXX has been affiliated with The WB Network
since the station re-commenced full-power broadcasting in the fourth quarter of
1997 and competes against four other commercial television broadcasters in the
market. The station's syndicated programming and future broadcast rights
include: Cheers, Friends, Full House, M*A*S*H, Star Trek: The Next Generation
and the Drew Carey Show, Caroline in the City, Spin City, Sabrina the Teenage
Witch and King of the Hill.
WTVK-46: Fort Myers/Naples, FL
The Fort Myers/Naples, FL, market in which WTVK operates is the 83rd largest DMA
in the U.S. The Fort Myers/Naples DMA has approximately 330,000 television
households and a total population of approximately 782,000. WTVK has been
affiliated with The WB Network since March 1998. Prior to March 1998, WTVK was
an affiliate of UPN. Currently, WTVK competes against four other commercial
television broadcasters. The station's syndicated programming and future
broadcast rights include: Sister Sister, The Nanny, Mad About You, Cops, Star
Trek: The Next Generation, Drew Carey, Caroline in the City, Sabrina the Teenage
Witch, Suddenly Susan, Spin City and StarTrek: Voyager.
Affiliation Agreement
Each of the Stations has entered into a station affiliation agreement
("Affiliation Agreements") with The WB Network which provides the Stations the
exclusive rights to broadcast the WB Network Programming in their respective
DMA. These affiliate agreements generally have three to ten year terms.
Under the Affiliation Agreements, The WB Network has retained the right to
program and sell approximately 75% of the advertising time available during The
WB Network prime time schedule with the remaining 25% available for sale by the
stations. The WB Network retains approximately 50% of the advertising time
available during WB Network children's programs aired in other (i.e. non-prime
time) day parts.
In addition to the advertising time reserved for sale by The WB Network, each
station is also required to pay annual compensation to The WB Network according
to formulas taking into account the average station ratings among adults 18-49
during WB Network provided prime time programming and the number of prime time
programming hours provided per week by The WB Network. Pursuant to the
Affiliation Agreements, the Company participates in cooperative marketing
efforts with The WB Network whereby the network reimburses up to 50% of certain
approved advertising expenditures by a station to promote network programming.
The Affiliation Agreements also contain a clause entitling the applicable
station to the benefits of any more favorable terms agreed to by The WB Network
with any affiliate except for superstation WGN during the term of the
Affiliation Agreements, and any subsequent modifications thereto.
<PAGE> 6
Industry Overview
Commercial television broadcasting began in the United States on a regular basis
in the 1940s over a portion of the broadcast spectrum commonly know as the VHF
Band (very high frequency broadcast channels numbered 2 through 13 ("VHF"))
Television channels were later assigned by the FCC under an additional broadcast
spectrum commonly known as the UHF Band (ultra-high frequency broadcast channels
numbered 14 through 83 ("UHF")); channels 70 through 83 have been reassigned to
non-broadcast services). Currently, there are a limited number of channels
available for broadcasting in any one DMA, and the license to operate a
broadcast station is granted by the FCC.
Although UHF and VHF stations compete in the same market, UHF stations have
historically suffered a competitive disadvantage, as (i) UHF signals are more
subject to obstructions such as terrain than VHF signals and (ii) VHF stations
are able to provide higher quality signals to a wider area. Over time, the
disadvantage of UHF stations has gradually declined through: (i) UHF stations'
carriage on local cable systems, (ii) improvement in television receivers, (iii)
improvement in television transmitters, and (iv) increased availability of
quality programming.
All television stations throughout the United States are grouped into
approximately 211 generally recognized DMAs which are ranked in size according
to the estimated number of television households. Each DMA is determined as an
exclusive geographic area consisting of all counties in which the home-market
commercial stations receive the greatest percentage of total viewing hours.
A majority of the commercial television stations in the United States are
affiliated with NBC, CBS or ABC (collectively, the "Major Networks") or with
Fox. Each Major Network provides the majority of its affiliates' programming
each day without charge in exchange for a substantial majority of the available
advertising time in the programs supplied. The Fox Network has operating
characteristics which are similar to ABC, CBS and NBC, although the hours of
network programming produced for Fox affiliates is less than that produced by
the other Major Networks. Each Major Network sells this advertising time and
retains the revenue. The affiliate typically receives compensation from the
Major Network and retains the revenue from advertising time sold in and between
network programs and in programming the affiliate produces or purchases from
non-network sources.
Stations which are not affiliated with one of the Major Networks were previously
considered independent stations. Independent stations generally rely on and
broadcast syndicated programming, which is acquired by the station for cash or
occasionally barter. The acquisition of syndicated programming generally grants
the acquiring station exclusive rights to broadcast a program in the market for
a specified period of time or a number of episodes agreed upon between the
independent station and the syndicator of the programming. Types of syndicated
programming include feature films, popular television series previously shown on
network television and current television series produced for direct
distribution to television stations. Through barter and cash-plus-barter
arrangements, a national syndicated program distributor typically retains a
portion of the available advertising time for programming it supplies, in
exchange for reduced fees to the station for such programming.
<PAGE> 7
Like Fox, UPN and The WB Network have each established an affiliation with
predominantly formerly independent, and in some cases, newly constructed
stations. However, the amount of programming per week supplied to the affiliates
by these networks is significantly less than that of ABC, CBS and NBC, and as a
result, these stations retain a significantly higher portion of the available
inventory of broadcast time for their own use than do Major Network affiliates.
In September 1998, Pax TV, a seventh broadcast network, was launched. Unlike the
Major Networks, UPN and The WB Network, Pax TV provides substantially all of the
programming to its affiliates, most of which were previously independent or
religious broadcasters or are newly built television stations.
Television stations derive their revenues primarily from the sale of national,
regional and local advertising. All network-affiliated stations, including those
affiliated with Fox, UPN and The WB Network, are required to carry national and
regional spot advertising sold by their networks. This reduces the amount of
advertising available for the sale directly by the network-affiliated stations.
Advertisers wishing to reach a national audience usually purchase time directly
from the Major Networks, Fox, UPN, The WB Network and Pax TV, or advertise
nationwide on an ad hoc basis. National advertisers who wish to reach a
particular region or local audience buy advertising time directly from local
stations through national advertising sales representative firms, or in the
cases of some large stations groups, from the station group itself.
Additionally, local businesses purchase advertising time directly from the
station's local sales staff. Advertising rates are based upon factors which
include the size of the DMA in which the station operates, a program's
popularity among the viewer that an advertiser wishes to attract, the number of
advertisers competing for the available time, demographic characteristics of the
DMA served by the station, the availability and pricing of alternative
advertising media in the DMA, aggressive and knowledgeable sales forces and the
development of projects, features and marketing programs that tie advertiser
messages to programming. Because broadcast television stations rely on
advertising revenues, declines in advertising budgets, particularly in
recessionary periods, may adversely affect the broadcast business.
Federal Regulation of Television Broadcasting
Television broadcasting is a regulated industry and is subject to the
jurisdiction of the FCC under the Communications Act, as amended from time to
time. The Communications Act prohibits the operation of television broadcasting
stations except under a license issued by the FCC. The Communications Act
empowers the FCC, among other things, to issue, revoke and modify broadcasting
licenses, determine the locations of stations, regulate the equipment used by
stations, adopt regulations to carry out the provisions of the Communications
Act and impose penalties for violation of such regulations. The Communications
Act provides penalties for violation of such regulations. The Communications Act
prohibits the assignment of a license or the transfer of control of a licensee
without prior approval of the FCC. On February 8, 1996, the President signed
into law the Telecom Act, which substantially amended the Communications Act.
Set forth below is a general description of some of the principal areas of FCC
regulations of the broadcast television industry.
License Grant and Renewal
A party must obtain a construction permit from the FCC in order to build a new
television station. Once a station is constructed and commences broadcast
operations, the permittee will receive a license which must be renewed by the
FCC at the end of each license term. On January 24, 1997, pursuant to the
Telecom Act, the FCC increased the terms of such licenses and their renewal to
eight years. The Telecom Act directs the FCC to grant renewal of a broadcast
license if it finds that the station has served the public interest,
convenience, and necessity and that there have been no serious violations (or
other violations which would constitute a "pattern of abuse") by the licensee of
the Communications Act of FCC rules and policies. If the FCC finds that a
licensee has failed to meet these standards, and there are no sufficient
mitigating factors, the FCC may deny renewal or condition renewal appropriately,
including renewing for less than a full term. Any other party with standing may
petition the FCC to deny a broadcaster's application for renewal. However, only
if the FCC issues an order denying renewal will the FCC accept and consider
applications from other parties for a construction permit for a new station to
<PAGE> 8
operate on the channel subject to such denial. The FCC may not consider any such
applicant in making determinations concerning the grant or denial of the
licensee's renewal application.
Local Marketing Agreements
The Company has, from time to time, entered into LMAs, generally in connection
with pending station acquisitions. By using LMAs, the Company gains the ability
to provide programming and other services to a station proposed to be acquired
prior to and pending receipt of all applicable FCC approvals with respect to the
actual transfer of control or assignment of the applicable station license.
FCC rules and policies generally require that the Company's LMAs permit the
station licensee to retain ultimate control of the applicable station, including
programming, and there can be no assurance that the Company will be able to air
all of its scheduled programming on a station with which it has an LMA, or that
in such event, the Company will receive the anticipated revenue from the sale of
advertising for such programming. In addition, LMAs sometimes require that
existing programming contracts of the licensee be honored. Accordingly, there
can be no assurance that early termination of an LMA or unanticipated
preemptions by a licensee of all or a significant portion of the Company's
scheduled programming for a station subject to an LMA will not occur.
Termination of an LMA or material preemptions of programming thereunder could
adversely affect the Company. The FCC has initiated several proceedings in which
it is reviewing its rules and policies with regards to LMAs. The Company cannot
predict the overall effect of the outcome of these proceedings.
Multiple- and Cross-Ownership Restrictions
Current FCC regulations and policies impose significant restrictions on certain
positional and ownership interests in broadcast companies and other media. The
officers, directors and certain equity owners of a broadcast company are deemed
to have "attributable interests" in the broadcast company. In the case of a
corporation, ownership is generally attributed to officers, directors and equity
holders who own 5% or more of the company's outstanding voting stock.
Institutional investors, including mutual funds, insurance companies and banks
acting in a fiduciary capacity, may own up to 10% of the outstanding voting
stock without being subject to attribution, provided that such equity holders
exercise no control over the management or policies of the broadcasting company.
Limited liability companies are generally treated as limited partnership for
purposes of the FCC rules. These rules do not attribute limited partnership
interests as long as the partnership certifies that the limited partners are
insulated from management in accordance with the FCC's established criteria; if
the certification is properly made, only the general partner (or managing
member) of the partnership is deemed to have an attributable interest.
Under current FCC rules governing multiple ownership of broadcast stations, a
license to operate a television station will not be granted (unless established
waiver standards are met) to any party (or parties under common control) that
has an attributable interest in another television station with an over lapping
service contour (the "Duopoly Rule"). FCC regulations also prohibit one owner
from having attributable interests in television broadcast stations that reach
in the aggregate more than 35% of the nation's television households. For
purposes of this calculation, stations in the UHF band (channels 14-69) are
attributed with only 50% of the households attributed to stations in the VHF
band (channels 2-13). The rules further prohibit (with certain qualifications)
the holder of an attributable interest in a television station from also having
an attributable interest in a radio station, daily newspaper or cable television
system serving a community located within the relevant coverage area of that
television station. Separately, the FCC's "cross-interest" policy may, in
certain circumstances, prohibit the common ownership of an attributable interest
in one media outlet and a non-attributable equity interest in another media
outlet in the same market. In pending rulemaking proceedings, the FCC is
considering, among other possible changes, (i) the modification of its
attribution rules and the "cross-interest" policy, (ii) the relaxation of
Duopoly Rule and (iii) specific rules regarding ownership attribution to govern
television LMAs comparable to those currently in force with respect to radio
LMAs.
<PAGE> 9
Review of "Must-Carry" Rules
FCC regulations implementing the Cable Television Consumer Protection and
Competition Act of 1992 (the "1992 Cable Act") require each television
broadcaster to elect, at three year intervals beginning October 1, 1993, to
either (i) require carriage of its signal by cable systems in the station's
market ("must carry") or (ii) negotiate the terms on which such broadcast
station would permit transmission of its signal by the cable systems within its
market ("retransmission consent"). The United States Supreme Court upheld the
must-carry rules in a 1997 decision.
Digital Television Services
The FCC has adopted rules for implementing digital television ("DTV") service in
the United States. Implementation of DTV will improve the technical quality of
television signals and will provide broadcasters the flexibility to offer new
services, including high-definition television ("HDTV") and data broadcasting.
The FCC has established service rules and adopted a Table of Allotments for
digital television. Under the Table, all eligible broadcasters with a full-power
television station are allocated a separate channel for DTV operation. Stations
will be permitted to phase in their DTV operations over a period of years
following the adoption of a final table of allotments, after which they will be
required to surrender their non-DTV channel. Affiliates of the top four networks
in the top ten markets must be on the air with a digital signal by May 1, 1999.
Affiliates of the top four networks in the next twenty largest markets must be
on the air with a digital signal by November 1, 1999. Current ACME stations must
be on the air with a digital signal by May 1, 2002. The FCC has set a target of
2006 as the end-date of analog broadcasts. Meanwhile, Congress has from time to
time considered proposals that would require incumbent broadcasters to bid at
auction for the additional spectrum required to effect a transition to DTV, or,
alternatively, would assign DTV spectrum to incumbent broadcasters and require
the early surrender of their non-DTV channel for sale by public auction.
The Telecom Act and the FCC's rules impose certain conditions on the FCC's
implementation of DTV service. Among other requirements, the FCC must (i) limit
the initial eligibility for licenses to existing television broadcast licensees
or permittees; (ii) allow DTV Licensees to offer ancillary and supplementary
services; (iii) charge appropriate fees to broadcasters that supply ancillary
and supplementary services for which such broadcasters derive certain
nonadvertising revenues; and (iv) recover at an unspecified time either the DTV
license or the original license (the "NTSC" license) held by the broadcaster.
The FCC has instituted a proceeding concerning cable television carriage of DTV
signals during the transition period.
There are details regarding how interference levels will be calculated that the
FCC has not yet ruled on. Conversion to DTV operations could reduce a station's
geographical coverage area after such rules are adopted if the interference
standards are changed. Equipment and other costs associated with the DTV
transition, including the necessity of temporary dual-mode operations, will
impose some near-term financial costs on television stations providing the
services. The potential also exists for new sources of revenue to be derived
from DTV. The Company cannot predict the overall effect the transition to DTV
might have on the Company's business.
Other Pending FCC Proceedings
In 1995, the FCC issued notices of proposed rulemaking proposing to modify or
eliminate most of its remaining rules governing the broadcast network-affiliate
relationship. The network-affiliate rules were originally intended to limit
networks' ability to control programming aired by affiliates or to set station
advertising rates and to reduce barriers to entry by networks. These proceedings
are pending. The dual network rule, which generally prevents a single entity
from owning more than one broadcast television network, is among the rules under
consideration in these proceedings. However, the Telecom Act substantially
relaxed the dual network rule by providing that an entity may own more than one
television network; however, no two national television networks in existence on
February 8, 1996 may merge or be acquired by the same party. The Company is
unable to predict how or when the FCC proceeding will be resolved or how those
proceedings or the relaxation of the dual network rule ma affect the Company's
business.
<PAGE> 10
Pursuant to a Congressional directive contained in the Telecom Act, the FCC has
on-going proceedings to devise rules to implement universal closed captioning of
video programming.
The FCC continues to enforce strictly its regulations concerning broadcasters'
"indecent" programming, political advertising, environmental concerns, technical
operating matters and antenna tower maintenance.
The FCC has initiated a proceeding to reexamine its rules and responsibilities
with regard to equal employment opportunity, in light of a decision of the U.S.
Court of Appeals for the District of Columbia Circuit which struck down the
FCC's Equal Employment Opportunity rules. The FCC has temporarily suspended
requirements to file certain information with the agency. This does not relieve
FCC licensees of the obligation to comply with other federal and state laws that
relate to employment discrimination and related matters.
There are additional FCC regulations as well as policies, and regulations and
policies of other federal agencies, affecting the business and operations of
broadcast stations. Proposals for additional or revised rules are considered by
federal regulatory agencies and Congress from time to time. It is not possible
to predict the resolution of these issues or other issues discussed above,
although their outcome could, over a period of time, affect, either adversely or
favorable, the broadcasting industry generally or the Company specifically.
The foregoing does not purport to be a complete summary of all the provisions of
the Communications Act, the Telecom Act or other Congressional acts or of the
regulations and policies of the FCC thereunder. Reference is made to the
Communications Act, the Telecom Act, other Congressional acts, such regulations
and policies, and the public notices promulgated by the FCC for further
information.
Competition
Broadcast television stations compete for advertising revenues primarily with
other broadcast television stations in their respective markets and, to a lesser
extent, with radio stations, cable television system operators, newspapers,
outdoor (i.e. billboard) companies, direct mail and internet sites. Major
Network and Fox programming generally achieves higher household audience levels
than those of UPN and The WB Network and other syndicated programming aired by
independent stations. This is attributable to a number of factors, including the
Major Networks' efforts to reach a broader audience, generally better signal
carriage when broadcasting over VHF channels versus UHF channels and the greater
amount of network programming being broadcast weekly and the fact that the major
networks have been in existence for a significantly longer period of time than
UPN and The WB Network. However, greater amounts of advertising time are
available for local station sale during UPN and The WB Network programming and
non-network syndicated programming, and as a result, the Company believes that
the Company's programming will achieve a share of television market advertising
revenues greater than its share of the market's audience.
Broadcast television stations compete with other television stations in their
DMAs for the acquisition of programming. Generally, cable systems do not compete
with local stations for programming, but various national cable networks do from
time to time acquire programming that could have been offered to local
television stations. Public broadcasting stations generally compete with
commercial broadcasters for viewers, but do not compete for advertising
revenues. Historically, the cost of programming had increased because of an
increase in the number of independent stations and a shortage of quality
programming.
Employees
At December 31, 1998, the Company had 220 employees, including 33 at station
KPLR in St. Louis who were subject to collective bargaining agreements. The
Company believes that its relationships with its employees are good.
<PAGE> 11
Item 2. Properties
Set forth below is certain information with respect to the Company's existing
studios and other facilities. All of the Company's leased studio, office and
tower facilities are leased pursuant to long-term leases. Management believes
that all facilities and equipment are adequate, with minor changes and
additions, for conducting operations as presently contemplated. Information as
to tower size reflects the height above average terrain (HAAT) of the antenna
radiation center.
<TABLE>
<CAPTION>
Location - Use Approximate Size Ownership
- -------------- ---------------- ---------
<S> <C> <C>
St. Louis, MO
Studio and office facilities (1) 36,000 sq. ft. Owned
Tower 1,011 ft. Owned
Corporate Office facilities 1,500 sq. ft. Leased
Beaverton, OR
Studio and office facilities 15,255 sq. ft. Leased(2)
Tower 1,785 ft. Leased
Knoxville, TN
Studio and office facilities 8,000 sq. ft. Leased
Tower 2,399 ft. Leased
Salt Lake City, UT
Studio and office facilities 9,500 sq. ft. Leased
Tower 3,839 ft. Leased
Ft. Myers, FL
Studio and office facilities 5,000 sq. ft. Leased
Tower 1,000 ft. Leased
Albuquerque, NM
Studio and office facilities 9,000 sq. ft. Owned
Tower 1234 ft. Leased
Santa Ana, CA
Corporate Office facilities 2,000sq. ft. Leased
</TABLE>
(1) Excludes 30,000 square feet of apartment space located above the studio and
office facilities.
(2) The Company purchased this facility from the lessor in February 1999.
Item 3. Legal Proceedings
The Company currently and from time to time is involved in litigation incidental
to the conduct of its business. The Company maintains comprehensive general
liability and other insurance which it believes to be adequate for the purpose.
The Company is not currently a party to any lawsuit or proceeding that
management believes would have a material adverse affect on its financial
condition or results of operations.
Item 4. Submission of Matters to a vote of Security Holders
Not applicable.
<PAGE> 12
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Not applicable.
ITEM 6. SELECTED FINANCIAL DATA
Following is ACME Intermediate's and ACME Television's inception-to-date
selected consolidated financial data. This data is derived from their respective
audited Consolidated Financial Statements of the Company and should be read in
conjunction with the Consolidated Financial Statements located at Item 8 of this
filing and with "Management's Discussion and Analysis of Financial Condition and
Results of Operations".
<TABLE>
<CAPTION>
ACME INTERMEDIATE ACME TELEVISION
---------------------- ----------------------
(IN THOUSANDS) DECEMBER 31, DECEMBER 31,
---------------------- ----------------------
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Statement of Operations Data:
Net revenues 43,928 11,347 43,928 11,347
Operating loss (2,799) (1,441) (2,799) (1,441)
Net loss (21,056) (6,634) (15,850) (5,418)
Balance Sheet Data:
Total assets 286,845 219,172 285,377 217,682
Long-term debt 195,499 167,698 153,448 130,833
Capital 5,472 735 5,472 735
Statement of Cash Flow Data
Net cash provided by (used in) operating activities 275 (398) 275 (501)
Net cash used in investing activities (15,504) (173,001) (15,504) (173,001)
Net cash provided by (used in) financing activities 7,362 182,219 7,362 182,322
Certain Other Financial Data:
Broadcast cash flow (1) 11,380 1,024 11,380 1,024
Adjusted EBITDA (2) 8,752 (421) 8,752 (421)
</TABLE>
(1) Broadcast cash flow is defined as operating income, plus depreciation and
amortization, program amortization and corporate overhead, less program
payments -- the latter as adjusted to reflect reductions for impaired or
expired rights in connection with acquisitions. The Company has included
broadcast cash flow data because the Company believes such data is
commonly used by investors in broadcast companies to measure a company's
ability to service debt and to assess the earning ability of a company's
station operations. Broadcast cash flow is not, and should not be used as
an indicator or alternative to operating income, net loss or cash flow as
reflected in the consolidated financial statements, is not a measure of
financial performance under generally accepted accounting principles and
should not be considered in isolation or as a substitute for measures of
performance prepared in accordance with generally accepted accounting
principles.
(2) Adjusted earnings before income taxes, depreciation and amortization
("Adjusted EBITDA") is defined as broadcast cash flow less corporate
overhead. The Company has included adjusted EBITDA data because the
Company believes such data is commonly used by investors to measure a
company's ability to service debt and to assess the earning ability of a
company's operations. Adjusted EBITDA is not, and should not be used as an
indicator or alternative to operating income, net loss or cash flow as
reflected in the consolidated financial statements, is not a measure of
financial performance under generally accepted accounting principles and
should not be considered in isolation or as a substitute for measures of
performance prepared in accordance with generally accepted accounting
principles.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Overview
The operating revenues of the Company are derived primarily from the sale of
advertising time and, to a lesser extent, from barter transactions for goods
and services. Revenue depends on the ability of the Company to provide popular
programming which attracts audiences in the demographic groups targeted by
advertisers, thereby allowing the Company to sell advertising time at
satisfactory rates. Revenue also depends significantly on factors such as the
national and local economy and the level of local competition.
Net revenues of the Company are generally higher during the fourth quarter of
each year, primarily due to increased expenditures by advertisers in
anticipation of holiday season consumer spending and an increase in viewership
during this period. The Company generally pays commissions to advertising
agencies on local, regional and national advertising and to national sales
representatives on national advertising. Net revenues reflect deductions from
gross revenues for commissions payable to advertising agencies and national
sales representatives.
The Company's primary operating expenses are employee compensation,
programming, advertising and promotion expenditures and depreciation and
amortization. Changes in compensation expense result primarily from increases
in total staffing levels, from adjustments to fixed salaries based on employee
performance and inflation and, to a lesser extent, from changes in sales
commissions paid based on levels of advertising revenues.
Programming expense consists primarily of amortization of program broadcast
rights. The Company purchases first run and off-network syndicated programming
to augment its WB Network provided programming on an ongoing basis. Barter
expense generally offsets barter revenue and reflects the fair market value of
goods and services received. Advertising and promotion expenses primarily
consist of media and related production costs in connection with the Company's
promotion of its station(s) and programs. This amount is net of any WB Network
co-op reimbursement received or due in connection with such advertisements.
Results of Operations
Net revenues for the year ended December 31,1998 increased $32.6 million (287%)
to $43.9 million as compared to $11.3 million for the year ended December 31,
1997. This increase is due primarily to the significant expansion in the number
of operating stations owned and/or operated by the Company during the last
quarter of 1997 and during 1998, particularly the acquisition of KPLR. The
Company's 1998 results include a full 12 months of operations for KPLR and WBXX,
whereas the 1997 operating results contain only the fourth quarter for each of
these operations. The addition of KUWB, Salt Lake City,UT and WTVK, Ft.
Myers/Naples, FL during 1998 also increased revenues.
Operating expenses increased to $46.7 million compared to the prior year's
operating expenses of $12.8 million. This increase was also due to the
additional stations added or launched since the third quarter of 1997.
Depreciation and amortization expense for the year includes $9.4 million in the
amortization of intangible assets. As of December 31, 1997, only Station KWBP
and Station WBXX stations had been acquired and, accordingly, there was only
$1.1 million in amortization expense for that period.
Interest expense for the current year was $16.2 million for the ACME Television
and $21.4 million for ACME Intermediate, primarily representing the amortization
of original issuance discount of ACME Television's 10-7/8% Senior Discount Notes
due 2004 (the "Television Notes") and ACME Intermediate's 12% Senior Secured
Discount Notes due 2005 (the "Intermediate Notes", and together with the
Television Notes, the "Senior Notes") along with related amortization of prepaid
financing costs. The interest expense of $4.2 million for ACME Television and
$5.5 million for ACME Intermediate during the 1997 year represents primarily the
interest expense on the Senior Notes, which were outstanding only during the
fourth quarter of the year.
<PAGE> 13
Apart from the Company's Missouri operations (which pertain solely to the
Company's investment in KPLR), which are organized as traditional "C"
corporations, the Company and its operating subsidiaries are organized as
limited liability companies. Accordingly, although the Company is subject to
various minimum state taxes, all federal tax attributes are passed through to
the members of the Company. The Company's Missouri operations, after deduction
of allocable interest charges, generated a net taxable loss, and a corresponding
deferred tax benefit of $2.4 million.
The net loss for ACME Television and for ACME Intermediate for the year ended
December 31, 1998 was $15.9 million and $21.1 million, respectively, compared to
a net loss of $5.4 million and $6.6 million, respectively, for the prior year.
These increased net losses are due primarily to the increased amortization of
intangible assets relating to the Companies' newly acquired and operating
stations and the substantially increased interest expense incurred in connection
with the September 1997 issuance of long-term debt to finance these
acquisitions, offset by improved operating performance attributable to the
inclusion of full year results related to Station KPLR.
The Company's Broadcast cash flow for the year ended December 31, 1998 was $11.4
million, compared to a $1.0 million broadcast cash flow in 1997. This increase
is primarily attributable to the profitable operations of Station KPLR, which
was operated under an LMA from October 1, 1997 and acquired on March 13, 1998,
and, to a lesser extent, significantly reduced losses at Station KWBP.
Liquidity And Capital Resources
Cash flows provided by operating activities for ACME Television and ACME
Intermediate were $275,000 for the year-ended December 31, 1998 compared to cash
flows used by operating activities of $501,000 and $398,000 for year-end 1997,
respectively, an increase of $776,000 and $673,000, respectively. The increase
was primarily due to higher broadcast cash flows offset by increases in working
capital needs and the payment of certain liabilities assumed in connection with
the Station KPLR and Station KWBP acquisitions.
Cash flows used in investing activities were $15,500,000 for the year-ended
December 31, 1998. The major cash flows used in investing activities during 1998
related to the Company's acquisition of WTVK in June 1998, and to capital
expenditures which principally related to the build-out of Station KUWB. These
outflows were partially offset by the purchase and subsequent sale at a gain of
$1.1 million of the construction permit for Channel 31 serving Springfield,
Missouri. Cash flows used in investing activities in 1997 were $173.0 million
and principally related to the Company's deposit in connection with the
acquisition of Station KPLR, the acquisition of Station WBXX and the build-out
of Station WBXX. The Company anticipates that future requirements for capital
expenditures will include those incurred in the continued build-out of its
station in Albuquerque, New Mexico (completed in March 1999) and the routine
maintenance and upgrade of its other stations which will be financed primarily
through its $20 million capital equipment facility.
Cash flows provided by financing activities for ACME Television and ACME
Intermediate of $7,362,000 related primarily to net bank borrowings in 1998
(related to the acquisition of Station WTVK) as compared to cash flows provided
by financing activities in 1997 of $182,322,000 and, $182,219,000, respectively,
relating primarily to the issuance of the Senior Notes and secondarily to
contributions from ACME Parent.
ACME Television's existing credit agreement allows for revolving credit
borrowings of up to a maximum of $40,000,000, dependent upon its meeting certain
financial ratio tests as set forth in the credit agreement. The revolving credit
facility can be used to fund future acquisitions of broadcast stations and for
general corporate purposes. At December 31, 1998, $8,000,000 was outstanding and
$32,000,000 was available under the facility. The interest rate at December 31,
1998 on this outstanding principal amount was 8.25% per annum.
The Company believes that internally generated funds from operations and
borrowings under its credit agreement, if necessary, will be sufficient to
satisfy the Company's cash requirements for its existing operations for at least
the next twelve months. The Company expects that any future acquisitions of
television stations would be financed through funds generated from operations,
through borrowings under the existing credit agreement and through additional
debt and equity financings. However there is no guarantee that such additional
debt and/or equity financing and/or equity contributions by ACME Parent will be
available or available at rates acceptable to the Company.
<PAGE> 14
Year 2000
The Year 2000 ("Y2K") issue is a result of computer software applications using
a two-digit format, as opposed to a four-digit format, to indicate the year.
These computer software applications will then be unable to uniquely distinguish
dates beyond the year 1999, which could cause a system failure or other computer
errors.
The Company is in the process of evaluating potential Year 2000 (Y2K) issues for
both its information technology (IT) and non-IT systems (non-IT systems include
but are not limited to, those systems that are not commonly thought of as IT
systems, such as telephone/PBX systems, fax machines, editing equipment,
cameras, microphones, etc). All internal software and hardware is purchased,
leased or licensed from third party vendors. Most of the Company's station
facilities are new or have been recently upgraded and the Company has polled all
of its significant software vendors and has been advised by them that their
software is Y2K compliant.
The Company has completed its assessment and planning phase of its Y2K readiness
project and has begun the testing phase, which consists of independently
verifying that the systems are, in fact, Y2K compliant. In addition to testing
internal systems for compliance, this phase also includes polling key suppliers,
such as program suppliers, utilities, etc., to determine their Y2K readiness.
At the conclusion of the testing phase, the Company will commence its final
phase of its Y2K project, implementation. During this phase, the Company will
fix, test and implement critical applications that were discovered to be Y2K
deficient during the preceding phases.
At this point in time, the Company is not aware of aware of any additional
significant upgrades or changes that will need to be made to its internal
software and hardware to become Y2K ready, nor is it aware of any material
supplier with Y2K readiness problem, but this is subject to change as the
evaluation and compliance testing process continues. The Company expects to be
able to implement the systems and programming changes necessary to address Y2K
IT and non-IT readiness issues and, based on preliminary estimates, does not
believe that the costs associated with such actions will have a material effect
on the Company's results of operations or financial condition. There can be no
assurance, however, that there will not be a delay in, or increased costs
associated with the implementation of such changes.
Pending Adoption of Accounting Standard
The FASB (Financial Accounting Standards Board) has issued FASB statement No.
133 "Accounting for Derivative Instruments and Hedging Activities" which the
Company will be required to adopt for its year ending December 31, 2000. This
pronouncement establishes accounting and reporting standards for derivative
instruments, including certain derivative instruments embedded in other
contracts, (collectively referred to as derivatives) and for hedging activities.
It requires that an entity recognize all derivatives as either assets or
liabilities in the statement of financial position and measure those instruments
at fair value. This pronouncement is not expected to have a significant impact
on the Company's financial statements since the Company currently has no
derivative instruments.
Recent Developments
On February 15, 1999, ACME Parent acquired a 25% membership interest in Sylvan
Tower, LLC. This interest permits ACME Parent to offer to ACME Television of
Oregon, LLC, a subsidiary of ACME Television which operates station KWBP, a
long-term lease at the Sylvan Tower facility for installation and operation of a
digital television antenna and transmitter.
On February 19, 1999, the Company entered into an Asset Purchase Agreement with
Ramar Communications, Inc. ("Ramar") pursuant to which it will acquire the
television broadcast assets of KASY-TV, in Albuquerque, California. The Company
will pay to Ramar at closing $25 million. In a related transaction, the Company
is selling to Ramar its station serving the Albuquerque market, KWBQ, for
$100,000. The closings of both the KASY and the KWBQ transactions are subject to
FCC approvals and various other conditions and are expected to occur
simultaneously. At the closing, the Company will begin operating KWBQ in
connection with an LMA with Ramar. The Company contemplates that this
transaction will be completed during the second quarter 1999.
On March 23, 1999, the Company entered into an agreement in principle to acquire
from Paxson Communications Corporation ("PCC") the television broadcast assets
of WDPX-TV, serving the Dayton, Ohio, market, WPXG-TV, serving the Green Bay
market and WPXU-TV, serving the Champaign-Decatur market in a $40 million cash
transaction. The transaction is subject to the execution of definitive
agreements, the Company's completion of due-diligence with respect to the assets
being acquired and the obtaining by the Company of financing on terms
satisfactory to the Company. The Company contemplates that this transaction will
be completed during the second quarter 1999. The Company and PCC also announced
that they have entered into an agreement in principle for Station WBXX to manage
the local advertising sales operations for PCC's Knoxville, TN station WPXK.
In February 16, 1999, the Company acquired the remaining 51% interest in Station
KUPX and in March 1999, the FCC approved the swap of station KUPX for station
KUWB, which is expected to close in May 1999. The Company intends to account for
the swap as a non-monetary transaction using its historical cost. The Company
believes that the fair value of station KUWB approximates the historical cost of
station KUPX.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
ACME Television's revolving credit facility has a variable interest rate.
Accordingly, the Company's interest expense can be materially affected by
future fluctuations in the applicable interest rate.
<PAGE> 15
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTAL DATA
INDEPENDENT AUDITORS' REPORT
The Members
ACME Intermediate Holdings, LLC
ACME Television, LLC
We have audited the accompanying consolidated balance sheets of ACME
Intermediate Holdings, LLC and Subsidiaries and ACME Television, LLC (a
wholly-owned subsidiary of ACME Intermediate Holdings, LLC) and Subsidiaries as
of December 31, 1998 and 1997, and the related consolidated statements of
operations, members' capital and cash flows for the years ended December 31,
1998 and 1997. In connection with our audit of the consolidated financial
statements, we have also audited the financial statement schedules listed in the
index at Item 14. These consolidated financial statements and financial
statement schedules are the responsibility of the Companies' management. Our
responsibility is to express an opinion on these consolidated financial
statements and financial schedules based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of ACME Intermediate
Holdings, LLC and Subsidiaries and ACME Television, LLC and Subsidiaries as of
December 31, 1998 and 1997 and the results of their operations and their cash
flows for each of the years then ended, in conformity with generally accepted
accounting principles. Also, in our opinion, the related financial statement
schedules, when considered in relation to the financial statements taken as a
whole, present fairly in all material respects, the information set forth
therein.
KPMG LLP
Los Angeles, California
February 24, 1999
<PAGE> 16
ACME INTERMEDIATE HOLDINGS, LLC AND SUBSIDIARIES
ACME TELEVISION, LLC AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
-------------------------------------------------------------------------
1998 1997
---------------------------------- ----------------------------------
ACME ACME
INTERMEDIATE ACME INTERMEDIATE ACME
HOLDINGS, LLC TELEVISION, LLC HOLDINGS, LLC TELEVISION, LLC
------------- --------------- ------------- ---------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $953 $953 $8,820 $8,820
Accounts receivable, net 10,609 10,609 677 699
Due from affiliates 4 131 54 162
Current portion of programming rights 6,357 6,357 614 614
Prepaid expenses and other current
assets 414 414 3,060 3,032
-------------- -------------- --------------- --------------
Total current assets 18,337 18,464 13,225 13,327
Property and equipment, net 16,441 16,441 7,346 7,346
Programing rights, net of current portion 8,046 8,046 587 587
Deposits 36 36 143,000 143,000
Deferred income taxes 3,811 3,811 0 0
Intangible assets, net 222,987 222,987 36,004 36,004
Other Assets 17,187 15,592 19,010 17,418
-------------- -------------- --------------- --------------
Total assets $286,845 $285,377 $219,172 $217,682
============== ============== =============== ==============
LIABILITIES AND MEMBERS' CAPITAL
Current Liabilities:
Accounts payable $ 4,425 $ 4,425 $ 3,363 $ 3,361
Accrued liabilities 4,210 4,210 651 651
Current portion of programming
rights payable 7,649 7,649 653 653
Current portion of obligations under
lease 1,273 1,273 292 292
-------------- -------------- --------------- --------------
Total current liabilities 17,557 17,557 4,959 4,957
Bank borrowings 8,000 8,000 0 0
Programming rights payable, net of current
portion 6,512 6,512 1,351 1,351
Obligations under lease, net of current
portion 4,199 4,199 443 443
Other liabilities 1,125 1,125 0 0
Deferred income taxes 31,241 31,241 0 0
Senior discount notes 145,448 145,448 130,833 130,833
Senior secured notes 42,051 0 36,865 0
-------------- -------------- --------------- --------------
Total liabilities 256,133 214,082 174,451 137,584
-------------- -------------- --------------- --------------
Members' Capital 58,402 92,563 51,355 85,516
Accumulated deficit (27,690) (21,268) (6,634) (5,418)
-------------- -------------- --------------- --------------
Total members' capital 30,712 71,295 44,721 80,098
============== ============== =============== ==============
Total liabilities and members'
capital $286,845 $285,377 $219,172 $217,682
============== ============== =============== ==============
</TABLE>
See accompanying notes to conolidated financial statements.
<PAGE> 17
ACME INTERMEDIATE HOLDINGS, LLC AND SUBSIDIARIES
ACME TELEVISION, LLC AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------------------------------------------------------
1998 1997
----------------------------------- ----------------------------------
ACME ACME
INTERMEDIATE ACME INTERMEDIATE ACME
HOLDINGS, LLC TELEVISION, LLC HOLDINGS, LLC TELEVISION, LLC
------------- --------------- ------------- ---------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
NET REVENUES $ 43,928 $ 43,928 $ 11,347 $ 11,347
-------- -------- -------- --------
OPERATING EXPENSES:
Programming & Promotion 17,480 17,480 3,608 3,608
Production and engineering 4,265 4,265 0 0
Selling, general and administrative 13,627 13,627 7,965 7,965
Depreciation and amortization 11,355 11,355 1,215 1,215
-------- -------- -------- --------
Total operating expenses 46,727 46,727 12,788 12,788
-------- -------- -------- --------
Operating loss (2,799) (2,799) (1,441) (1,441)
OTHER INCOME (EXPENSES)
Interest income 224 224 273 273
Interest expense (21,378) (16,172) (5,466) (4,250)
Gain on sale of assets 1,112 1,112 0 0
Other expense (608) (608) 0 0
-------- -------- -------- --------
Net other expenses (20,650) (15,444) (5,193) (3,977)
Net loss before income taxes (23,449) (18,243) (6,634) (5,418)
Income tax benefit 2,393 2,393 0 0
-------- -------- -------- --------
NET LOSS $(21,056) $(15,850) $ (6,634) $ (5,418)
======== ======== ======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE> 18
ACME INTERMEDIATE HOLDINGS, LLC AND SUBSIDIARIES
ACME TELEVISION, LLC AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF MEMBERS' CAPITAL
For the Years Ended December 31, 1998 and 1997
(In thousands)
ACME INTERMEDIATE HOLDINGS, LLC
<TABLE>
<CAPTION>
TOTAL
MEMBERS' ACCUMULATED MEMBERS'
CAPITAL DEFICIT CAPITAL
-------- ----------- --------
<S> <C> <C> <C>
Contribution of Parent $ 47,201 $ 0 $ 47,201
Unit Offering 4,154 0 4,154
Net Loss 0 (6,634) (6,634)
-------- -------- --------
Balance at December 31, 1997 51,355 (6,634) 44,721
Contribution of Parent 7,047 0 7,047
Net Loss 0 (21,056) (21,056)
-------- -------- --------
Balance at December 31, 1998 $ 58,402 $(27,690) $ 30,712
======== ======== ========
</TABLE>
ACME TELEVISION, LLC
<TABLE>
<CAPTION>
TOTAL
MEMBERS' ACCUMULATED MEMBERS'
CAPITAL DEFICIT CAPITAL
-------- ----------- ---------
<S> <C> <C> <C>
Contribution of Parent $ 85,516 $ 0 $ 85,516
Net Loss 0 (5,418) (5,418)
-------- -------- --------
Balance at December 31, 1997 85,516 (5,418) 80,098
Contribution of Parent 7,047 0 7,047
Net Loss 0 (15,850) (15,850)
-------- -------- --------
Balance at December 31, 1998 $ 92,563 $(21,268) $ 71,295
======== ======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE> 19
ACME INTERMEDIATE HOLDINGS, LLC AND SUBSIDIARIES
ACME TELEVISION, LLC AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-----------------------------------------------------------------
1998 1997
-------------------------------- -------------------------------
ACME ACME
INTERMEDIATE ACME INTERMEDIATE ACME
HOLDINGS, LLC TELEVISION, LLC HOLDINGS, LLC TELEVISION, LLC
------------- --------------- ------------- ---------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Cash flows from operating activities:
Net loss $(21,056) $(15,850) $ (6,634) $ (5,418)
Adjustments to reconcile net loss to net cash
provided by operating activities:
Depreciation and amortization 11,355 11,355 1,215 1,215
Amortization of discount on Senior Notes 20,226 15,037 5,121 3,908
Deferred Taxes (2,393) (2,393) 0 0
Gain on Sale of Assets (1,112) (1,112) 0 0
Changes in assets and liabilities, net of
purchase transactions:
Increase in accounts receivables, net (5,459) (5,459) (699) (699)
Increase in Program contracts (5,166) (5,166) (706) (706)
(Increase) decrease in prepaid expenses 334 317 (3,090) (3,194)
Increase in other assets (576) (576) 0 0
Increase in accounts payable 59 59 3,363 3,361
Increase in accrued expenses 2,639 2,639 651 651
Increase in programming rights payable 3,899 3,899 381 381
Decrease in other liabilities (2,475) (2,475) 0 0
-------- -------- -------- --------
Net cash provided by (used in) operating activities 275 275 (398) (501)
-------- -------- -------- --------
Cash flows from investing activities:
Purchase of property and equipment (2,945) (2,945) (6,077) (6,077)
Cash acquired in acquisition - St. Louis 779 779 0
Purchase of Ft. Myers Station, net of cash acquired (14,450) (14,450) 0
Purchase of Springfield, MO station (2,225) (2,225) 0
Proceeds from sale of Springfield, MO station 3,337 3,337 0
Deposit relating to acquisition agreement 0 0 (143,000) (143,000)
Purchase of Knoxville Station 0 0 (13,454) (13,454)
Other 0 0 (10,470) (10,470)
-------- -------- -------- --------
0
Net cash used in investing activities (15,504) (15,504) (173,001) (173,001)
-------- -------- -------- --------
Cash flows from financing activities:
Increase in notes payable to bank 11,000 11,000 0
Payments of notes payable to banks (3,000) (3,000) 0
Payments on capital leases (638) (638) (97) (97)
Contribution from Parent 0 0 24,126 62,441
Issuance of units 0 0 4,154 0
Issuance of Senior Discount Notes 0 0 127,370 127,370
Issuance of Senior Secured Notes 0 0 35,650 0
Debt issuance costs 0 0 (8,984) (7,392)
-------- -------- -------- --------
Net cash provided by financing activities 7,362 7,362 182,219 182,322
-------- -------- -------- --------
Net increase (decrease) in cash (7,867) (7,867) 8,820 8,820
Cash at beginning of period 8,820 8,820 0 0
-------- -------- -------- --------
Cash at end of period 953 953 8,820 8,820
======== ======== -------- ========
Cash Payments for:
Interest 864 864 514 514
Taxes 70 70 0 0
Non-Cash Transactions:
Contributions by Parent 7,047 7,047 23,075 23,075
Property and equipment acquired with
capital lease obligations 5,375 5,375 0 0
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE> 20
ACME INTERMEDIATE HOLDINGS, LLC AND SUBSIDIARIES
ACME TELEVISION, LLC AND SUBSIDIARIES
Notes to Consolidated Financial Statements
For the years ended December 31, 1998 and December 31, 1997
(1) DESCRIPTION OF THE BUSINESS AND FORMATION
Presentation
Financial statements are presented for each of ACME Intermediate Holdings, LLC
and its subsidiary, ACME Television, LLC. Unless the context requires otherwise,
references to the "Company" refers to both ACME Intermediate Holdings, LLC and
ACME Television, LLC. Segment information is not presented since all of the
Company's revenue is attributed to a single reportable segment.
Formation:
ACME Intermediate Holdings, LLC (ACME Intermediate) was formed on August 8,
1997. Upon formation, ACME Intermediate received a contribution from ACME
Television Holdings, LLC (ACME Parent), of ACME Parent's wholly owned
subsidiaries - ACME Television of Oregon, LLC (ACME Oregon) and ACME Television
of Tennessee, LLC (ACME Tennessee) and certain other net assets. This
Contribution of $25,455,000 (including cash of $2,380,000) was made in exchange
for membership units in ACME Intermediate and was treated as a transaction
between entities under common control, similar to a pooling of interests.
Accordingly, the transaction was recorded at historical cost and ACME
Intermediate has reflected the results of operations of the entities contributed
for the year ended December 31, 1997. In addition, on September 30, 1997, ACME
Parent made an additional contribution of $21,746,000 in exchange for membership
units in the Company.
ACME Television, LLC (ACME Television) was formed on August 8, 1997. Upon
formation, ACME Television received a contribution from ACME Television
Holdings, LLC (ACME Parent), through ACME Intermediate of ACME Parent's wholly
owned subsidiaries - ACME Oregon and ACME Tennessee and certain other net
assets. This Contribution of $25,455,000 (including cash of $2,380,000) was made
in exchange for membership units in the Company and was treated as a transaction
between entities under common control, similar to a pooling of interests.
Accordingly, the transaction was recorded at historical cost and ACME Television
has reflected the results of operations of the entities contributed for the year
ended December 31, 1997. In addition, on September 30, 1997, ACME Intermediate
made an additional contribution of $60,061,000 in exchange for membership units
in ACME Television.
ACME Parent owns, directly and indirectly, approximately 92% of the outstanding
members units of ACME Intermediate. ACME Intermediate owns, directly or
indirectly, 100% of the outstanding members units of the Company.
Nature of Business
ACME Intermediate Holdings, LLC is a holding company with no assets or
independent operations other than its investment in it's wholly-owned
subsidiary, ACME Television, LLC. The Company, through is subsidiaries, owns
and/or operates six commercially licensed broadcast television stations (the
"Stations" or "Subsidiaries") located throughout the United States.
<PAGE> 21
ACME INTERMEDIATE HOLDINGS, LLC AND SUBSIDIARIES
ACME TELEVISION, LLC AND SUBSIDIARIES
Notes to Consolidated Financial Statements -- Continued
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF CONSOLIDATION
The Consolidated Financial Statements include the accounts of the Company and
its subsidiaries. All Significant intercompany transactions have been
eliminated.
REVENUE RECOGNITION
Revenue from the sale of airtime related to advertising and contracted time is
recognized at the time of broadcast. The Company receives such revenues net of
commissions deducted by the advertising agencies and national sales
representatives.
CASH AND CASH EQUIVALENTS
For purposes of reporting the statement of cash flows, the Company considers all
highly liquid debt instruments purchased with an original maturity of three
months or less to be cash equivalents.
ACCOUNTS RECEIVABLE
Accounts receivable are presented net of the related allowance for doubtful
accounts which totaled $555,000 and $51,000 at December 31, 1998 and 1997,
respectively.
CONCENTRATION OF CREDIT RISK
Financial instruments that potentially subject the Company to concentration of
credit risk consist primarily of accounts receivable and cash. Due to the
short-term nature of these instruments, the carrying value approximates the fair
market value. The Company believes that concentrations of credit risk with
respect to accounts receivable, which are unsecured, are limited due to the
Company's ongoing relationship with its clients. The Company provides its
estimate of uncollectible accounts. The Company has not experienced significant
losses relating to accounts receivable.
PROGRAM BROADCAST RIGHTS
Program broadcast rights represent costs incurred for the right to broadcast
certain features and syndicated television programs. Program broadcast rights
are stated at the lower of amortized cost or estimated realizable value. The
cost of such program broadcast rights and the corresponding liability are
recorded when the initial program becomes available for broadcast under the
contract. Generally, program broadcast rights are amortized over the life of the
contract on a straight-line basis related to the usage of the program. The
portion of the cost estimated to be amortized within one year and after one year
rare reflected in the balance sheets as current and noncurrent assets,
respectively. The payments under these contracts that are due within one year
and after one year are similarly classified as current and noncurrent
liabilities.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost. The cost of maintenance is expensed
when incurred. Depreciation and amortization are computed using the
straight-line method over the estimated useful lives of the respective assets.
When property is retired or otherwise disposed of, the cost and accumulated
depreciation are removed from the appropriate accounts and any gain or loss is
included in the results of current operations. The principal lives used in
determining depreciation rates of various assets are as follows:
<TABLE>
<S> <C>
Buildings and Improvements 20 - 30 years
Broadcast and other equipment 3 - 20 years
Furniture and fixtures 5 - 7 years
Vehicles 5 years
</TABLE>
<PAGE> 22
ACME INTERMEDIATE HOLDINGS, LLC AND SUBSIDIARIES
ACME TELEVISION, LLC AND SUBSIDIARIES
Notes to Consolidated Financial Statements -- Continued
INTANGIBLE ASSETS
Intangible assets consist of broadcast licenses and goodwill, both of which are
amortized on a straight-line basis over a 20-year life. At December 31, 1998 and
1997, the total accumulated amortization for intangible assets was $10,172,000
and $761,000, respectively.
BARTER AND TRADE TRANSACTIONS
Revenue and expenses associated with barter agreements in which broadcast time
is exchanged for programming rights are recorded at the estimated average rate
of the airtime exchanged. Trade transactions, which represent the exchange of
advertising time for goods or services, are recorded at the estimated fair value
of the products or services received. Barter and trade revenue is recognized
when advertisements are broadcast. Merchandise or services received from airtime
trade sales are charged to expense or capitalized when used or received.
CARRYING VALUE OF LONG-LIVED ASSETS
The Company has adopted the provisions of Statement of Financial Accounting
Standards No. 121, "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to be Disposed Of." The carrying value of long-lived assets
(tangible and intangible) is reviewed if the facts and circumstances suggest
that they may be impaired. For purposes of this review, assets are grouped at
the operating company level, which is the lowest level for which there are
identifiable cash flows. If this review indicates that an asset's carrying value
will not be recoverable, as determined based on future expected, undiscounted
cash flows, the carrying value is reduced to fair market value.
INCOME TAXES
The Company is a limited liability company, therefore, no income taxes have been
provided for its operations other than at its subsidiary ACME Television of
Missouri, Inc. which is a "C" corporation subject to federal and state taxation.
Any liability or benefit from the Company's non-taxable entities' consolidated
income or loss is the responsibility of, or benefit to, the individual members.
USE OF ESTIMATES IN THE PREPARATION OF FINANCIAL STATEMENTS
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period. These
estimates include the allowance for doubtful accounts net of the realizable
value of programming rights and the evaluation of the recoverability of
intangible assets. Actual results could differ from those estimates.
RECLASSIFICATIONS
Certain amounts previously reported for 1997 have been reclassified to conform
to the 1998 financial statement presentation.
<PAGE> 23
ACME INTERMEDIATE HOLDINGS, LLC AND SUBSIDIARIES
ACME TELEVISION, LLC AND SUBSIDIARIES
Notes to Consolidated Financial Statements -- Continued
(3) PROPERTY AND EQUIPMENT
Property and equipment consist of the following:
<TABLE>
<CAPTION>
December 31,
----------------------
1998 1997
-------- --------
<S> <C> <C>
Land $ 553 $ 0
Buildings & Improvements 2,529 365
Broadcast and Other Equipment 13,163 7,201
Furniture and Fixtures 287 60
Vehicles 320 61
Construction in process 1,935 0
-------- --------
Total $ 18,652 $ 7,687
Less Accumulated Depreciation (2,211) (341)
-------- --------
Net Property and equipment $ 16,441 $ 7,346
======== ========
</TABLE>
Included in property and equipment are assets acquired under capital leases with
a total cost of $6,207,000 and the associated accumulated depreciation of
$767,000.
(4) ACQUISITIONS
On June 30, 1998, ACME Parent acquired substantially all the assets and assumed
certain liabilities of WTVK-Channel 46 serving the Fort Myers/Naples, Florida
marketplace for approximately $14.5 million in cash and 1,047 membership units
in ACME Parent (valued at approximately $1.0 million). The acquisition was
accounted for using the purchase method. The excess of the purchase price over
the fair value of the net assets assumed of approximately $15.5 million has been
recorded as an intangible asset and is being amortized over a period of 20
years. The Company had entered into an LMA agreement with WTVK wherein the
Company, effective March 3, 1998, retained all revenues generated by the
station, bore all operating expenses of the station and had the right to program
the station (subject to WTVK's ultimate authority for programming) and the
station's existing programming commitments. The LMA terminated upon the
consummation of the acquisition. Consequently, under the LMA the revenues and
operating expenses of the station are included in the Company's results of
operations from March 3, 1998 to June 30, 1998. The purchase transaction was
recorded on the consolidated balance sheet of the Company on June 30, 1998 and
the Company's results of operations includes revenues and expenses (including
amortization of intangible assets) beginning July 1, 1998.
On July 29, 1997, ACME Parent entered into and subsequently contributed to ACME
Missouri a stock purchase agreement to acquire Koplar Communications, Inc.
(KCI). On September 30, 1997, ACME Missouri placed $143 million in to an escrow
account (classified as a deposit on the December 31, 1997 consolidated balance
sheet). In connection with this acquisition, the Company entered into a
long-term LMA with Station KPLR and filed the requisite applications with the
FCC for the transfer of the Station's license to ACME Missouri.
Pursuant to the LMA relating to Station KPLR, The Company retained all revenues
generated by the station, bore substantially all operating expenses of the
station and was obligated to pay an LMA fee. These revenues and expenses for the
period October 1 through December 31, 1997 are included in the Company's
operating results for the year ended December 31, 1997.
<PAGE> 24
ACME INTERMEDIATE HOLDINGS, LLC AND SUBSIDIARIES
ACME TELEVISION, LLC AND SUBSIDIARIES
Notes to Consolidated Financial Statements -- Continued
On March 13, 1998, ACME Missouri completed its acquisition of Koplar
Communications, Inc. ("KCI") and acquired all of the outstanding stock of KCI
for a total consideration of approximately $146.3 million. The acquisition was
accounted for using the purchase method. Pursuant to the LMA referred to above,
all revenues and operating expenses of the station for the period from September
30, 1997 to March 31, 1998 (the effective date of the purchase transaction) are
included in the Company's operating results. The purchase transaction was
recorded on the consolidated balance sheet of the Company effective March 31,
1998 and the Company's results of operations includes revenues and expenses
(including amortization of intangible assets) beginning April 1, 1998.
The fair value of the assets acquired and liabilities assumed relating to the
acquisition of Station KPLR (in thousands):
<TABLE>
<S> <C>
Assets acquired:
Cash and cash equivalents 779
Accounts receivables, net 1,703
Program broadcast rights 8,490
Property and equipment 2,233
Prepaid expenses and other current
assets 416
FCC License 93,775
Goodwill 82,563
Other assets 395
--------
Total assets acquired 190,354
Liabilities assumed:
Accounts payable (1,005)
Accrued liabilities (1,332)
Program broadcast rights payable (8,258)
Deferred income taxes (29,889)
Other liabilities (3,531)
--------
Total liabilities assumed (44,015)
--------
Total purchase price 146,339
========
</TABLE>
During 1997, ACME Parent entered into and contributed to the Company the right
to: (i) acquire 49% of the licensee of Station KUPX (formerly KZAR) in exchange
for member units in ACME Parent valued at $6 million, (ii) pay $3 million for an
option to acquire the remaining 51% interest in the licensee of Station KUPX for
$5 million, exercisable immediately after the station commences on-air
operations. On December 15, 1997, the Company acquired the 49% interest in the
licensee of Station KUPX, paid $3 million to acquire the option and loaned the
sellers $4 million (to be applied to the subsequent majority interest purchase
price). On January 22, 1998, ACME Parent issued $6 million of its member units
to the sellers for the 49% interest in the license of Station KUPX in connection
with the above transaction. The amount of the issuance was based upon a fixed
dollar amount of consideration. ACME Parent contributed this investment to the
Company in exchange for membership units in the Company. The Company recorded
the $6 million investment and increase in capital in January 1998 when the
consideration was issued. The Company accounted for the 49% investment with the
equity method of accounting. The $4 million loan is to be applied against the
remaining purchase price when the Company exercises its option to acquire the
remaining 51% of the Station.
In May 1998 ACME Television and the majority owners of KUPX entered into an
agreement with another broadcaster in Salt Lake City to (i) swap station KUPX
for station KUWB, subject to FCC approval (ii) enable the Company to operate
station KUWB under an LMA and enable the owner of KUWB to operate KUPX under an
LMA agreement.
<PAGE> 25
ACME INTERMEDIATE HOLDINGS, LLC AND SUBSIDIARIES
ACME TELEVISION, LLC AND SUBSIDIARIES
Notes to Consolidated Financial Statements -- Continued
On August 22, 1997, ACME New Mexico entered into an agreement with affiliates of
the sellers of station KZAR to acquire 100% of the interests in the construction
permit for Station KAUO for a consideration of $10,000. This agreement was
consummated on January 22, 1998. Subsequently, the call letters of KAUO were
changed to KWBQ. Construction of station KWBQ was completed and the station
commenced broadcasting in March 1999.
On June 17, 1997, ACME Parent acquired substantially all of the assets and
assumed certain liabilities of Channel 32, Incorporated, relating to the
operations of Station KWBP, in exchange for $18,675,000 in cash and $4,400,000
of membership units in ACME Parent. The acquisition was accounted for using the
purchase method. The excess of the purchase price plus the fair value of net
liabilities assumed of approximately $23,478,000, has been recorded as an
intangible asset and is being amortized over a period of 20 years. In addition,
the results of station KWBP were recorded by the Company beginning January 1,
1997 pursuant to a Local Marketing Agreement whereby ACME Oregon effectively
operated the station and funded the station's losses during the period from
January 1, 1997 to June 17 1997 (the acquisition date).
On October 7, 1997, the Company acquired Crossville Limited Partnership, the
owner of Station WINT, in exchange for $13,200,000 in cash. Subsequent to the
acquisition, the Company changed the call letters of the station to WBXX. The
acquisition was accounted for using the purchase method. The excess of the
purchase price over the fair value of net assets acquired of approximately
$13,287,000, has been recorded as an intangible asset and is being amortized
over a period of 20 years.
The unaudited pro forma financial information for the year ended December 31,
1998 and 1997, set forth below reflects the net revenue and net loss assuming
the KWBP, WBXX, KPLR, WTVK and KWBQ transactions had taken place at the
beginning of each respective year. This unaudited pro forma financial
information does not necessarily reflect the results of operations that would
have occurred had the acquisitions occurred on January 1, 1998 and 1997.
<TABLE>
<CAPTION>
ACME Intermediate ACME Television
------------------- -------------------
Year Ended Dec 31, Year Ended Dec 31,
------------------- -------------------
1998 1997 1998 1997
-------- ------- -------- -------
<S> <C> <C> <C> <C>
Net Revenues $ 44,275 35,410 $ 44,275 35,410
Net loss (23,483) (24,948) (18,277) (21,332)
=================== ===================
</TABLE>
(5) UNIT OFFERING
On September 30, 1997, ACME Intermediate Holdings, LLC issued 71,634 Units (the
Unit Offering) consisting of 71,634 membership units (representing 8% of the
ACME Intermediate's outstanding membership equity) and $71,635,000 (par value at
maturity) in 12% Senior Secured Discount Notes Due 2005 (Intermediate Notes).
Cash interest on the Intermediate Notes is payable semi-annually in arrears,
commencing with the six-month period ending March 31, 2003. The net proceeds
from the Unit Offering, after the deduction of underwriter fees and other
related offering costs, were $38.3 million and were received by the Company on
September 30, 1997. The Company has allocated approximately $4.2 million of such
net proceeds to the membership units, $35.6 million to the discounted note
payable and $1.5 million to prepaid financing costs - the latter which is being
amortized over the eight year term of the notes. The Intermediate Notes contain
certain covenants and restrictions including restrictions on future indebtedness
and restricted payments, as defined, and limitations on liens, investments,
transactions with affiliates and certain asset sales. The Company was in
compliance with all such covenants and restrictions at December 31, 1998 and
1997.
The Intermediate Notes are secured by a first priority lien on the limited
liability company interests in ACME Television and ACME Subsidiary Holdings II,
LLC, both of which are direct wholly-owned subsidiaries of ACME Intermediate.
The consolidated financial statements of Acme Television are included herein.
ACME Subsidiary Holdings II, LLC was formed solely to own a 0.5% interest in
Acme Television, has no other assets or operations and does not constitute a
substantial portion of the collateral for the Intermediate Notes.
(6) SENIOR DISCOUNT NOTES
On September 30, 1997, ACME Television, LLC issued 10.875% Senior Discount Notes
Due 2004 (Notes) with a face value of $175,000,000 and received $127,370,000 in
gross proceeds from such issuance. These Notes provide for semi-annual cash
interest payments beginning in the fourth year with the first interest payment
due on March 31, 2001. The Notes are subordinated to ACME Television's bank
revolver (see Note 7) and to the ACME Television's capital equipment finance
facilities (see Note 8). The Notes mature on September 30, 2004 and may not be
prepaid without penalty.
The Notes contain certain covenants and restrictions including restrictions on
future indebtedness and limitations on investments, and transactions with
affiliates. ACME Television was in compliance with all such covenants and
restrictions at December 31, 1998 and December 31, 1997.
<PAGE> 26
ACME INTERMEDIATE HOLDINGS, LLC AND SUBSIDIARIES
ACME TELEVISION, LLC AND SUBSIDIARIES
Notes to Consolidated Financial Statements -- Continued
Costs associated with the issuance of these notes, including the underwriters
fees and related professional fees are included in long-term other assets and
will be amortized over the seven year term of the notes.
ACME Television's subsidiaries (hereinafter referred to in this section
collectively as Subsidiary Guarantors) are fully, unconditionally, and jointly
and severally liable for ACME Television's notes. The Subsidiary Guarantors are
wholly owned and constitute all of ACME Television's direct and indirect
subsidiaries except for ACME Finance Corporation, a wholly owned finance
subsidiary of ACME Television with essentially no independent operations that is
jointly and severally liable with the Company on the Notes (as defined). ACME
Television has not included separate financial statements of the aforementioned
subsidiaries because (i) ACME Television is a holding company with no assets or
independent operations other than its investments in its subsidiaries and (ii)
the separate financial statements and other disclosures concerning such
subsidiaries are not deemed material to investors.
Various agreements to which ACME Television and/or the subsidiary Guarantors are
parities restrict the activity of the Subsidiary Guarantors to make
distributions to the Company. The Investment and Loan Agreement (the Investment
Agreement), dated June 17, 1997, as amended, among ACME Parent and the parties
thereto and the Limited Liability Company Agreement (the LLC Agreement), dated
June 17, 1997, as amended, among ACME Parent and the parties thereto each
contain certain restrictions on the ability of the Subsidiary Guarantors to
declare or pay dividends to ACME Television in the absence of the consent of
certain parties thereto. The Indenture governing the Notes prevents the
Subsidiary Guarantors from declaring or paying any dividend or distribution to
ACME Television unless certain financial covenants are satisfied and there has
been no default thereof. The revolving credit facility with Canadian Imperial
Bank Corporation (see Note 7) also prohibits distributions from the Subsidiary
Guarantors to ACME Television except in certain circumstances during which
default has not occurred thereunder.
(7) BANK REVOLVER
On August 15, 1997, ACME Television entered into a $22.5 million revolving
credit facility (the Loan Agreement) with Canadian Imperial Bank Corporation
(CIBC), as agent and lead lender. Under the terms of the Loan Agreement,
advances bear interest at either the alternative base rate or the adjusted LIBOR
rate, as defined in the Loan Agreement. Commitment fees are charged at a rate of
.5% per annum, paid quarterly, of the unused portion of the facility. On
December 2, 1997, the Loan Agreement was amended to provide ACME Television with
an increased credit line to $40 million, more favorable interest rates and a
lengthened term. As of December 31, 1998 there was an outstanding balance of $8
million and $32.0 million available under the Loan Agreement. There was no
outstanding balance due at December 31, 1997.
The Loan Agreement contains certain covenants and restrictions including
restrictions on future indebtedness and limitations on investments and
transactions with affiliates. ACME Television was in compliance with all such
covenants and restrictions at December 31, 1998 and 1997.
Costs associated with the procuring of bank credit facilities, including loan
fees and related professional fees, are included in long-term other assets and
are amortized over the term of the Loan Agreement.
(8) COMMITMENTS AND CONTINGENCIES
OBLIGATIONS UNDER OPERATING LEASES
The Company is obligated under noncancelable operating leases for office space
and its transmission sites. Future minimum lease payments as of the year ended
December 31, 1998, under noncancelable operating leases with initial or
remaining terms of one year or more are:
<TABLE>
<S> <C>
1999 $ 1,125,000
2000 1,118,000
2001 1,068,000
2002 970,000
2003 916,000
Thereafter 4,806,000
-----------
Total $10,003,000
===========
</TABLE>
Total future minimum lease payments under non-cancelable operating leases were
$10,003,000 and $6,615,000 at December 31, 1998 and 1997, respectively.
Total rental expense under operating leases for the twelve months ended
December 31, 1998 and 1997 was approximately $967,463 and $166,000,
respectively.
<PAGE> 27
ACME INTERMEDIATE HOLDINGS, LLC AND SUBSIDIARIES
ACME TELEVISION, LLC AND SUBSIDIARIES
Notes to Consolidated Financial Statements -- Continued
OBLIGATIONS UNDER CAPITAL LEASES
As of December 31, 1998, approximately $5.5 million of equipment was leased
under capital equipment facilities. These obligations are reflected as current
obligations under capital leases of $1,273,000 and $292,000, and as non-current
liabilities under capital lease of $4,199,000 and $443,000 at December 31, 1998
and 1997 respectively. These capital lease obligations expire over the next five
years. Future minimum lease payments as of December 31, 1998 under capital
leases are:
<TABLE>
<S> <C>
1999 $ 1,638,000
2000 1,431,000
2001 1,371,000
2002 1,351,000
2003 931,000
-----------
Total $ 6,722,000
Less interest (1,250,000)
-----------
Present value of
minimum lease payments $ 5,472,000
===========
</TABLE>
PROGRAM BROADCAST RIGHTS PAYABLE
Commitments for program broadcast rights that have been executed, but which have
not been recorded in the accompanying financial statements, as the underlying
programming is not yet available for broadcast, were approximately $28,265,000
and $7,010,000 as of December 31, 1998 and December 31, 1997, respectively.
Maturities on the Company's program broadcast rights payables (including
commitments not recognized in the accompanying financial statements due to the
lack of current availability for broadcast) for each of the next five years are:
<TABLE>
<S> <C>
1999 $ 9,316,000
2000 9,903,000
2001 8,897,000
2002 6,322,000
2003 3,838,000
Thereafter 4,150,000
-----------
Total $42,426,000
===========
</TABLE>
CERTAIN COMPENSATION ARRANGEMENTS
ACME Parent has issued Management Carry Units to certain members of management.
These units entitle holders to certain distribution rights upon achievement of
certain returns by non-management investors and are subject to forfeiture or
repurchase by ACME Parent in the event of termination of each individual's
employment by ACME Parent under certain specified circumstances. The Company has
determined the value of these at the issuance date to be immaterial. These
Management Carry Units will be accounted for as a variable plan resulting in an
expense when it is probable that any such distributions will be made. The
Company will record any such expense relating to the Management Carry Units
issued by ACME Parent. As of December 31, 1998 and 1997 there were 100
Management Carry Units outstanding and no expense has been recorded.
LEGAL PROCEEDINGS
The Company is party to routine claims and suits brought against it in the
ordinary course of business. In the opinion of management, the outcome of such
routine claims will not have a material adverse effect on the Company's
business, financial condition, results of operations or liquidity.
<PAGE> 28
ACME INTERMEDIATE HOLDINGS, LLC AND SUBSIDIARIES
ACME TELEVISION, LLC AND SUBSIDIARIES
Notes to Consolidated Financial Statements -- Continued
(9) INCOME TAXES
The income tax expense (benefit) consists of the following:
<TABLE>
<CAPTION>
(in
thousands)
1998
----------
<S> <C>
Current
Federal income taxes --
State income taxes --
------
Total current tax expense (benefit) --
Deferred tax benefit (2,393)
------
Total income tax expense (benefit) (2,393)
======
</TABLE>
The differences between the income tax benefit and income taxes computed using
the U.S. Federal statutory income tax rates (35%) consist of the following:
<TABLE>
<CAPTION>
(in
thousands)
1998
----------
<S> <C>
Tax expense (benefit) at U.S. Federal
rate (3,471)
State income taxes, net
of Federal tax expense (benefit) (261)
Nondeductible expenses 1,430
Other (91)
------
Income tax benefit (2,393)
======
</TABLE>
DEFERRED INCOME TAXES
The Company's subsidiary, ACME Television Holdings of Missouri, Inc. is a "C"
corporation and is subject to state and federal income taxes (see Note 2 "Income
Taxes"). The deferred tax asset of $3,811,000 and liability of $31,241,000 for
the year ended December 31, 1998, were related to the following:
<TABLE>
<CAPTION>
1998
-------
LONG
TERM
-------
<S> <C>
ASSETS
Allowances and reserves 2,211
Net operating loss carryforwards 1,255
Other 345
-------
Deferred tax asset 3,811
LIABILITIES
Program Amortization (944)
Intangibles (30,297)
-------
Deferred tax liability (31,241)
-------
Net deferred tax liability (27,430)
=======
</TABLE>
The primary difference in the book basis and tax basis of the Company's
non-taxable entities relates to intangible assets. Intangible assets of the
non-taxable entities had a book and tax basis of approximately $59 million and
$58 million at December 31, 1998, respectively.
<PAGE> 29
ACME INTERMEDIATE HOLDINGS, LCC AND SUBSIDIARIES
ACME TELEVISION,LLC AND SUBSIDIARIES
Notes to Consolidated Financial Statements -- Continued
(10) Related Party Transactions
The Company's stations have entered into affiliation agreements and, from
time to time, related marketing arrangements with The WB Network and related
marketing arrangements. Jamie Kellner is an owner and the chief executive
officer of The WB Network.
Pursuant to an agreement among Koplar Communications, Roberts Broadcasting,
Michael Roberts and Steven C. Roberts, Roberts Broadcasting cannot (i)
transfer its license for Station WHSL, East St. Louis, Illinois, (ii) commit
any programming time of the station for commercial programming or
advertising or (iii) enter into an LMA with respect to such station until
June 1, 2000. In the event that the current affiliation agreement for WHSL
is terminated, the substitute format must be substantially similar to the
current home shopping network format or, in the alternative, an infomercial
format. The annual payment from the Company for these agreements was
$200,000 during the first three years (paid by the prior owner of Station
KPLR). The Company paid $300,000 in 1998 and will pay $300,000 in 1999 under
this agreement.
In connection with ACME Utah and ACME New Mexico, the Company has entered
into long-term agreements to lease studio facilities and/or transmission
tower space for Stations KUWB and KWBQ from an affiliate of Michael and
Steven Roberts. Both Michael and Steven C. Roberts are members of ACME
Parent and Michael Roberts is a proposed Member of ACME Parent's Board of
Advisors. These leases have terms of aproximately fifteen years and provide
for monthly payments aggregating approximately $25,000, subject to
adjustment based on the Consumer Price Index.
The Company believes that the terms of each of the foregoing transactions
are or were at least as favorable to the Company or its affiliates as those
that could be obtained from an unaffiliated party.
(11) SUBSEQUENT EVENTS (UNAUDITED)
On February 15, 1999, ACME Parent acquired a 25% membership interest in
Sylvan Tower, LLC. This interest permits ACME Parent to offer to ACME
Television of Oregon, LLC, a subsidiary of ACME Television which operates
station KWBP, a long-term lease at the Sylvan Tower facility for
installation and operation of a digital television antenna and transmitter.
In February 16, 1999, the Company acquired the remaining 51% interest in
Station KUPX and in March 1999, the FCC approved the swap of station KUPX
for station KUWB, which is expected to close in May 1999. The Company
intends to account for the swap as a non-monetary transaction using its
historical cost. The Company believes that the fair value of station KUWB
approximates the historical cost of station KUPX.
On February 19, 1999, the Company entered into an agreement in principle
with Ramar Communications ("Ramar") to acquire Ramar's station, KASY TV-50,
serving the Albuquerque market for approximately $27 million. In a related
transaction, the Company will concurrently sell to Ramar its station KWBQ,
also serving the Albuquerque market. The Company will also enter into a
10-year LMA agreement with Ramar to operate KWBQ. This transaction is
subject to FCC approval.
On March 23, 1999, the Company entered into an agreement in principle with
Paxson Communications Corporation ("PCC") to acquire three PCC stations
serving the Dayton, OH, Green Bay, WI and Champaign-Decatur, IL markets for
$40 million. The transaction, which is subject to the completion of a
definitive agreement, due-diligence, and satisfactory financing
arrangements, contemplates that the Company would commence operating the
stations as WB Network affiliates upon the payment to PCC of $32 million.
This payment would be credited at the final closing, which would take place
following FCC approval.
<PAGE> 30
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANTS
Set forth below is certain information with respect to the members of ACME
Parent's Board of Advisors, which ultimately controls both ACME Intermediate and
ACME Television and the senior management of the ACME Intermediate and ACME
Television. All ages are set forth as of March 15, 1999.
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---- --- --------
<S> <C> <C>
Jamie Kellner ................ 51 Chairman of the Board, Chief Executive Officer
and Member of ACME Parent's Board of Advisors
Douglas Gealy ................ 38 President, Chief Operating Officer and Member of
ACME Parent's Board of Advisors
Thomas Allen ................. 46 Executive Vice President, Chief Financial Officer
and Member of ACME Parent's Board of Advisors
Thomas Embrescia .............. 57 Member of ACME Parent's Board of
Advisors
Michael Roberts ............... 50 Proposed Member of ACME Parent's Board of
Advisors(1)
Edward Danduran .............. 46 Vice President, Controller
Gerald Donadio................. 39 Vice President of Sales (2)
Michael Mingroni ............. 42 Vice President of Graphics (2)
Robert Shaw .................. 51 Vice President of Programming (2)
</TABLE>
- -----------------
(1) Mr. Roberts is expected to hold this office subsequent to the
consummation of the acquisition of the remaining 51% interest in Station
KUWB, which acquisition occurred on February 16, 1999.
(2) Messrs. Donadio, Mingroni and Shaw are officers of ACME Television only,
and not of ACME Intermediate.
Jamie Kellner - Mr. Kellner is a founder of ACME Parent and serves as its
Chairman, Chief Executive Officer and is a member of its Board of Advisors,
which has exclusive authority to manage its business and affairs. Mr. Kellner is
also a founder, chief executive officer and partner of The WB Television Network
since 1993. Previously, Mr. Kellner was President of Fox Broadcasting Company
for over seven years. He currently serves on the board of directors of
Montecito Broadcasting Corporation, NELVANA LTD. and SMART TV, LLC.
Douglas Gealy - Mr. Gealy is also a founder of ACME Parent and serves as its
President and Chief Operating Officer and a member of its Board of Advisors.
Since December of 1996, Mr. Gealy has been involved in development activities
with respect to ACME Parent. Prior to founding ACME Parent, Mr. Gealy served for
one year as Executive Vice President of Benedek Broadcasting Corporation.
Previously, Mr. Gealy was a Vice President and General Manager of Station WCMH
and its LMA, WWHO, both in Columbus, Ohio, and following the acquisition of
these stations by NBC, served as President and General Manager of these
stations.
<PAGE> 31
Thomas Allen - Mr. Allen is a founder, member of the Board of Advisors,
Executive Vice President and the Chief Financial Officer of ACME Parent. Since
June of 1996, Mr. Allen has been involved in development activities with respect
to the Company. Previously, Mr. Allen was the Chief Operating Officer and Chief
Financial Officer for Virgin Interactive Entertainment from August 1993 to May
1996. Prior to that Mr. Allen served as the Chief Financial Officer of the Fox
Broadcasting Company for approximately seven years.
Thomas Embrescia - Mr. Embrescia is the Chairman and principle investor of
Second Generation Television, LLC, a company he formed in 1993. In addition, he
also serves as chairman or chief executive officer of and is a principle
investor in several other media and marketing related businesses. He has over 31
years of experience in the broadcasting and media industry. Mr. Embrescia has
been a member of ACME Parent's Board of Advisors since the Company acquired
station WTVK from Second Generation Television in June 1998.
Michael V. Roberts - Mr. Roberts is a co-founder of Roberts Broadcasting which
owns several television stations in medium-sized markets in the U.S. and has
served as its Chairman and Chief Executive Officer since 1989. Mr. Roberts is
also the founder of companies active in commercial real estate development,
construction program management and corporate management consulting.
Edward Danduran - Mr. Danduran has been Vice President and Controller of the
Company since July 1997. Prior to joining the Company, Mr. Danduran was a
Financial Consultant for Virgin Interactive Entertainment, Inc., from November
1995 until April 1997. From 1989 to 1995, Mr. Danduran was the Chief Financial
Officer of Phoneby, a business communications company,
Gerald Donadio - Mr. Donadio has served as ACME Television's Vice President of
Sales since June 1998. From 1996 until 1998, Mr. Donadio was a senior account
executive for a division of Time Warner Cable and from 1992 until 1996 served in
a similar capacity for a division Cox Communications.
Robert Shaw - Mr. Shaw has been Vice President of Programming of the ACME
Television since September 1997. Prior to joining the Company, Mr. Shaw spent
nearly 17 years at WCMH-TV, the NBC affiliate in Columbus, OH, in various
management capacities, most recently as Director of Programming and Station
Manager.
Michael Mingroni - Mr. Mingroni has served as ACME Television's Vice President
of Graphics since September 1997. From 1990 until 1997, Mr. Mingroni was the Art
Director for WCMH-TV, the NBC affiliate in Columbus, OH.
Edward J. Koplar has resigned all director and officer positions held with the
Company, its Parent and its subsidiaries. The Company is in the process of
negotiating a severance arrangement with Mr. Koplar.
ITEM 11. EXECUTIVE COMPENSATION & EMPLOYMENT AGREEMENTS
The following table discloses compensation earned for the years ended December
31, 1998 and 1997 (year of formation) by the Company's Chief Executive Officer,
and the Company's next four most highly paid executive officers.
SUMMARY COMPENSATION TABLE (1)
<TABLE>
<CAPTION>
OTHER ALL
ANNUAL OTHER
SALARY BONUS COMPENSATION COMPENSATION
NAME AND PRINCIPAL POSITION YEAR ($) ($) (2) ($) (3) ($) (4)
--------------------------- ---- --- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Jamie Kellner(5)...................... 1998 $175,000 $100,000 $ 0 $ 0
Chairman of the Board, Chief 1997 -- -- -- --
Executive Officer and Member of
the Board of Advisors
Douglas Gealy(5)...................... 1998 300,000 25,000 5,351 93,900
President, Chief Operating 1997 250,000 50,000 -- 2,449
Officer and Member of the Board of
Advisors
Thomas Allen(5)....................... 1998 300,000 25,000 -- 6,334
Executive Vice President, Chief 1997 145,833 50,000 105,000 2,171
Financial Officer and Member of
the Board of Advisors
</TABLE>
<PAGE> 32
<TABLE>
<S> <C> <C> <C> <C> <C>
Edward Danduran....................... 1998 106,016 20,000 -- 3,000
Controller and Chief Accounting 1997 67,017 -- -- --
Officer
Robert Shaw........................... 1998 89,344 16,000 -- 2,731
Vice President of Programming.... 1997 50,119 5,000 -- 859
</TABLE>
- -----------------
(1) The Company does not have Restricted stock, Stock appreciation rights
nor did it have payouts on LTIP's
(2) The amounts shown in the column reflect payments under the Company's
Annual Incentive Plan which is described below under the caption "Annual
and Long-Term Incentive Plans."
(3) Amounts disclosed in this column include:
(a) For Mr. Gealy, a company leased automobile.
(b) For Mr. Allen, a signing bonus that was contingent upon the closing
of the purchases of Stations KPLR, KWPB, WBXX and KWBQ.
(4) Amounts in this column include:
(a) The Company's contributions under its 401K Savings Plan, a defined
contribution plan.
(b) Reimbursements of COBRA expenses.
(c) Payments on behalf of the named executives for life insurance.
(d) For Mr. Gealy, this amount includes reimbursement of moving expenses
in the amount of $86,251.
(5) Messrs. Kellner, Gealy and Allen hold 40, 30 and 30, respectively,
Management Carry Units of ACME Parent. Ownership of these units entitles
them to certain distribution rights upon achievement of certain returns
by non-management investors and are subject to forfeiture or repurchase
by ACME Parent in the event of the termination of each individual's
employment by ACME Parent under certain specified circumstances. The
Management Carry Units vest over a five-year period, subject to
acceleration upon the occurrence of certain events, such as an initial
public offering, a change in control or a sale of ACME Parent. The
dollar value of payouts as a result of ownership of these units cannot
presently be determined.
Employment Agreements
ACME Parent has entered into a six-year non-exclusive consulting agreement (the
"Consulting Agreement") with Jamie Kellner which expires June 30, 2003, and
six-year full-time exclusive employment agreements (the "Employment Agreement")
with each of Messrs. Gealy and Allen which expire June 30, 2003, in each case
subject to reduction to five-year terms upon the consummation of an initial
public offering of common stock of a successor to ACME Parent (an "ACME IPO").
The Employment Agreements provide for annual compensation reviews by the
Company's Compensation Committee, which consists of Mr. Kellner, Mr. Embrescia
and certain of ACME Parent's investors, with stipulated minimum annual
adjustments equal to increases in the Consumer Price Index. Mr. Kellner's
consulting compensation is set annually on a discretionary basis by the
Compensation Committee.
Mr. Danduran is employed by the Company pursuant to employment agreement that
expires December 31, 2001. The employment agreement requires Mr. Danduran to
devote substantially all of his business time to the business of the Company and
precludes Mr. Danduran from engaging in activities competitive with the business
of the Company throughout the term of the employment agreement.
Mr. Shaw is employed by ACME Television pursuant to employment agreement that
expires December 31, 2001. The employment agreement requires Mr. Shaw to devote
substantially all of his business time to the business of the ACME Television
and precludes Mr. Shaw from engaging in activities competitive with the business
of ACME Television throughout the term of the employment agreement.
<PAGE> 33
Annual and Long-term Incentive Plans
Messers Kellner, Gealy and Allen's agreements provide for annual incentive plans
calling for cash bonuses to be paid to each of them on a formula basis dependent
upon achieving certain pre-determined profitability targets, although the
Compensation Committee can elect to increase such bonus awards. All other
managers of ACME Television, including Messers Danduran, Mingroni and Shaw,
participate in an annual cash bonus plan targeted at 10-20% of base pay and
dependent upon the Company's achieving certain annual profitability targets.
The Company has also adopted a long-term incentive compensation plan ("LTIP") in
which all general managers of the Company's stations and non-founder corporate
office executives participate. The participants' awards are determined by the
Company's Compensation Committee and are increased or decreased dependent upon
the Company achieving pre-determined long-term operating profit levels. The
awards generally vest in equal thirds on the third, fourth and fifth
anniversaries of the effective date of the awards. For 1998, the Company
recorded an expense of $399,000 representing the estimated awards earned during
1998 related to this plan.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
ACME Intermediate holds all of the outstanding membership units of ACME
Television and has full and exclusive authority for the management of its
business and affairs. ACME Parent holds 92.14% of the outstanding membership
units of ACME Intermediate and has exclusive authority for the management of the
business and affairs of ACME Intermediate. Full authority for the management of
ACME Parent resides in its executive officers and the Board of Advisors of ACME
Parent. Messrs. Kellner, Gealy and Allen collectively own all of the outstanding
voting securities of ACME Parent and each holds the same executive offices of
ACME Intermediate, ACME Television and ACME Parent. Accordingly, the following
table sets forth certain information regarding the beneficial ownership of ACME
Intermediate's membership units by (i) certain holders or groups of related
holders who, individually or as a group, are the beneficial owners of 5% or more
of the fully diluted equity interests of ACME Intermediate, (ii) the executive
officers and the Majority Member of ACME Intermediate and (iii) the executive
officers and the Majority Member of ACME Intermediate as a group. The LLC
Agreement of ACME Intermediate authorizes the issuance of 1,000,000 Common Units
of which 910,986 are issued and outstanding. 71,634 of the Common Units were
issued to ACME Intermediate noteholders, in connection with the offering of the
Intermediate Notes in September 1997. The Percentage of Beneficial Ownership
column set forth below reflects ownership percentages based upon capital
contributions. Pursuant to the LLC Agreement of ACME Intermediate, distributions
are made on a pro rata basis as determined by the ratio of a member's membership
units to the aggregate membership units of all members.
<TABLE>
<CAPTION>
PERCENTAGE
TYPE OF NUMBER BENEFICIAL
NAME(1) INTEREST OF UNITS OWNERSHIP
- ------- -------- -------- -----------
<S> <C> <C> <C>
ACME Television Holdings, LLC(2) Common Units 839,352 92.14%
Executive Officers and Majority Member Common Units 839,352 92.14%
ACME Television Holdings, LLC Common Units 839,352 92.14%
Jamie Kellner(3) Common Units 839,352 92.14%
1545 East Valley Road
Montecito, CA 93108
Douglas Gealy(3) Common Units 839,352 92.14%
10829 Olive Boulevard, Suite 202
St. Louis, MO 63141
Thomas Allen(3) Common Units 839,352 92.14%
2101 East Fourth Street, Suite 200
Santa Ana, CA 92705
Thomas Embrescia(4) Common Units 839,352 92.14%
One Radio Lane
Cleveland, OH 44114
Majority Member and executive Common Units 839,352 92.14%
officers as a group (4 persons)
</TABLE>
- -------------------
(1) Except as otherwise noted below, the persons named in the table have sole
voting power and investment power with respect to all units set forth in
the table.
<PAGE> 34
(2) Pursuant to the LLC Agreement of ACME Parent, distributions are made in
respect of the various classes of such membership units in accordance with
certain priority distributions and ownership percentages as set forth
therein, and vary among the respective classes of membership units based
upon the extent to which holders of designated classes of such membership
units have achieved specified cumulative distributions. Currently Messrs.
Kellner, Gealy and Allen are the beneficial owners of 40%, 30% and 30%,
respectively, the only outstanding voting membership units of ACME Parent.
Upon June 30, 2002 or the occurrence of certain specified events of
default, the holders of certain non-voting membership units of ACME Parent
will be granted voting rights and therefore be able to add new members
and/or replace current members of ACME Parent's Board of Advisers;
provided, however that ACME Parent has not consummated an initial public
offering. In the event of a reorganization of ACME Parent for purposes of
an initial public offering, all of the outstanding memberships units of
ACME Parent will be converted into one class of equity stock.
(3) Messrs. Kellner, Gealy and Allen are each executive officers of the
Company, ACME Television and ACME Parent and members of the Board of
Advisors of ACME Parent. Currently, Messrs. Kellner, Gealy and Allen are
the beneficial owners of the only outstanding voting membership units of
ACME Parent and, therefore, may be deemed to be beneficial owners of the
membership units of ACME Intermediate held by ACME Parent.
(4) Mr. Embrescia is a member of the Board of Advisors of ACME Parent and
therefore may be deemed to be a beneficial owner of the membership units
of ACME Intermediate held by ACME Parent. Mr. Embrescia holds non-voting
membership units equal to 5.31% and 2.3%, respectively, of beneficial
ownership of ACME Parent on a fully diluted basis based on capital
contributions.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Company's stations have entered into affiliation agreements and, from
time to time, related marketing arrangements with The WB Network and
related marketing arrangements. Jamie Kellner is an owner and the chief
executive officer of The WB Network.
Pursuant to an agreement among Koplar Communications, Roberts Broadcasting,
Michael Roberts and Steven C. Roberts, Roberts Broadcasting cannot (i)
transfer its license for Station WHSL, East St. Louis, Illinois, (ii)
commit any programming time of the station for commercial programming or
advertising or (iii) enter into an LMA with respect to such station until
June 1, 2000. In the event that the current affiliation agreement for WHSL
is terminated, the substitute format must be substantially similar to the
current home shopping network format or, in the alternative, an infomercial
format. The annual payment from the Company for these agreements was
$200,000 during the first three years (paid by the prior owner of Station
KPLR). The Company paid $300,000 in 1998 and will pay $300,000 in 1999
under this agreement.
In connection with ACME Utah and ACME New Mexico, the Company has entered
into long-term agreements to lease studio facilities and/or transmission
tower space for Stations KUWB and KWBQ from an affiliate of Michael and
Steven Roberts. Both Michael and Steven C. Roberts are members of ACME
Parent and Michael Roberts is a proposed Member of ACME Parent's Board of
Advisors. These leases have terms of approximately fifteen years and
provide for montly payments aggregating approximately $25,000, subject to
adjustment based on the Consumer Price Index.
The Company believes that the terms of each of the foregoing transactions
are or were at least as favorable to the Company or its affiliates as those
that could be obtained from an unaffiliated party.
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) 1. FINANCIAL STATEMENTS
The following financial statements are included in Item 8:
ACME Intermediate Holdings, LLC and Subsidiaries and
ACME Television, LLC and Subsidiaries:
-- Consolidated Balance Sheets as of December 31, 1998 and December 31,
1997.
-- Consolidated Statements of Operations for the years ended December 31,
1998 and December 31, 1997.
-- Consolidated Statements of Members' Capital for the years ended December
31, 1998 and 1997.
-- Consolidated Statements of Cash Flows for the years ended December 31,
1998 and December 31, 1997.
-- Notes to the Consolidated Financial Statements.
<PAGE> 35
(a) 2. FINANCIAL STATEMENT SCHEDULES
The following consolidated financial statement schedules are included in
Item 14 (d):
- Schedule I - Condensed Financial Information of ACME Intermediate
Holdings, LLC and ACME Television, LLC (Parent Companies)
-- Consolidated Balance Sheets as of December 31, 1998 and
December 31, 1997.
-- Consolidated Statements of Operations for the years ended
December 31, 1998 and December 31, 1997.
-- Consolidated Statements of Cash Flows for the years ended
December 31, 1998 and December 31, 1997.
-- Notes to the Consolidated Financial Statements.
- Schedule II - Valuation and Qualifying Accounts
All other schedules have been omitted since the required information is not
present or not present in amounts sufficient to require submission of the
schedule, or because the information required is included in the
consolidated financial statements or the notes thereto, included in Item 8
herewith.
(a) 3. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------ -------------------
<S> <C>
3.1 Certificate of Formation of ACME Intermediate Holdings, LLC,
incorporated by reference to Exhibit 3.1 of ACME Intermediate
Holdings, LLC's Registration Statement on Form S-4, File No.
333-40277 filed on November 14, 1997 (the "Intermediate Registration
Statement")
3.2 Limited Liability Company Agreement of ACME Intermediate Holdings,
LLC, incorporated by reference to Exhibit 3.2 of Intermediate
Registration Statement.
3.3 Certificate of Formation of ACME Television, LLC, incorporated by
reference to Exhibit 3.1 of ACME Television, LLC's Registration
Statement on Form S-4, File No. 333-40281, filed on November 14,
1997 (the "Television Registration Statement").
3.4 Limited Liability Company Agreement of ACME Television, LLC,
incorporated by reference to Exhibit 3.2 of the Television
Registration Statement.
4.1 Indenture, dated September 30, 1997, by and among ACME Intermediate
Holdings, LLC and ACME Intermediate Finance, Inc., as Issuers, and
Wilmington Trust Company, incorporated by reference to Exhibit 4.2
of the Intermediate Registration Statement.
4.2 Form of Securities of ACME Intermediate Holdings, LLC, incorporated
by reference to Exhibit 4.3 of the Intermediate Registration
Statement.
4.3 Indenture, dated September 30, 1997, by and among ACME Television,
LLC and ACME Finance Corporation, as Issuers, the Guarantors named
therein, and Wilmington Trust Company, incorporated by reference to
Exhibit 4.1 of the Television Registration Statement.
4.5 First Supplemental Indenture, dated February 11, 1998, by and among
ACME Television, LLC and ACME Finance Corporation, the Guarantors
named therein, and Wilmington Trust Company, incorporated by
reference to Registrant's Quarterly Report on Form 10-Q for the
period ending March 31, 1998.
4.6 Second Supplemental Indenture, dated March 13, 1998, by and among
ACME Television, LLC and ACME Finance Corporation, the Guarantors
named therein, and Wilmington Trust Company, incorporated by
reference to Registrant's Quarterly Report on Form 10-Q for the
period ending March 31, 1998.
4.7 Third Supplemental Indenture, dated August 21, 1998, by and among
ACME Television, LLC and ACME Finance Corporation, as issuers, the
Guarantors named therein, and Wilmington Trust Company, incorporated
by reference to Registrant's Quarterly Report on Form 10-Q for the
period ending September 30, 1998.
</TABLE>
<PAGE> 36
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------ -------------------
<S> <C>
10.1 Agreement, dated January 30, 1998, by and between ACME Television
Licenses of Tennessee, LLC, Ruth Payne Carman (dba E&R
Communications) and the Carman-Holly Partnership, incorporated by
reference to Registrant's Quarterly Report on Form 10-Q for the
period ending March 31, 1998.
10.2 Asset Purchase Agreement, dated March 2, 1998, by and between ACME
Television, LLC and Second Generation of Florida, Ltd., incorporated
by reference to Registrant's Quarterly Report on Form 10-Q for the
period ending March 31, 1998.
10.3 Time Brokerage Agreement, dated March 2, 1998, by and between ACME
Television, LLC and Second Generation of Florida, Ltd., incorporated
by reference to Registrant's Quarterly Report on Form 10-Q for the
period ending March 31, 1998.
10.4 Assignment Agreement, dated June 16, 1998, by and between ACME
Television Licenses of Tennessee, LLC, Ruth Payne Carman (dba E&R
Communications), Carman-Harrison, LLC and Donald E. Holley,
incorporated by reference to Registrant's Quarterly Report on Form
10-Q for the period ending June 30, 1998.
10.5 Time Brokerage Agreement, dated April 20, 1998, for KUPX-TV, by and
amoung Paxson Salt Lake City License, Inc., Paxson Communications of
Salt Lake City-30, Inc. and ACME Television of Utah, LLC,
incorporated by reference to Registrant's Quarterly Report on Form
10-Q for the period ending June 30, 1998.
10.6 Master Lease Agreement, dated June 30, 1998, by and between General
Electric Capital Corporation and ACME Television, LLC, incorporated
by reference to Registrant's Quarterly Report on Form 10-Q for the
period ending June 30, 1998.
10.7* Purchase Agreement, dated October 30, 1998, by and between Roberts
Broadcasting of New Mexico, LLC and Acme Television of New Mexico,
LLC.
10.8* Option Agreement, dated November 5, 1998, by and between Roberts
Broadcasting of New Mexico, LLC and Acme Television of New Mexico,
LLC.
10.9* Tower Lease Agreement, dated December 30, 1998, by and between
Roberts Broadcasting of New Mexico, LLC and Acme Television of New
Mexico, LLC.
21.0* Subsidiaries
27.1* Financial Data Schedule for ACME Television, LLC, available in
electronic format as filed by the Registrant.
27.2* Financial Data Schedule for ACME Intermediate Holdings, LLC,
available in electronic format as filed by the Registrant.
</TABLE>
- ------------
* Filed herewith
(b) REPORTS ON FORM 8-K.
The Company filed no reports on Form 8-K during the three months ended
December 31, 1998.
<PAGE> 37
SIGNATURES
Pursuant to the requirements of Sections 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
ACME Intermediate Holdings, LLC
Date: March 31, 1999 /s/ Thomas D. Allen
----------------------------------
Thomas D. Allen
Executive Vice President and Chief
Financial Officer and Director
(Principal Financial Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, this Annual
Report on Form 10-K has been signed by the following persons on behalf of the
Registrant in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ Jamie Kellner Chairman of the Board March 31, 1999
- ---------------------------- Chief Executive Officer and Member of
Jamie Kellner ACME Parent's Board of Advisors
(Principal Executive Officer)
/s/ Douglas Gealy President and Member of ACME Parent's March 31, 1999
- ---------------------------- Board of Advisors
Douglas Gealy
/s/ Thomas D. Allen Executive Vice President and Chief March 31, 1999
- ---------------------------- Financial Officer and Member of the
Thomas D. Allen Board of Advisors
(Principal Financial Officer)
/s/ Edward Danduran Vice President and Controller March 31, 1999
- ---------------------------- (Principal Accounting Officer)
Edward Danduran
/s/ Thomas D. Allen Majority Member March 31, 1999
- ----------------------------
ACME Television Holdings, LLC
By: Thomas Allen
Title: Executive Vice President and
Chief Financial Officer
</TABLE>
<PAGE> 38
SIGNATURES
Pursuant to the requirements of Sections 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
ACME Television, LLC
Date: March 31, 1999 /s/ Thomas D. Allen
----------------------------------
Thomas D. Allen
Executive Vice President and Chief
Financial Officer and Director
(Principal Financial Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, this Annual
Report on Form 10-K has been signed by the following persons on behalf of the
Registrant in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ Jamie Kellner Chairman of the Board March 31, 1999
- ---------------------------- Chief Executive Officer and Member of
Jamie Kellner ACME Parent's Board of Advisors
(Principal Executive Officer)
/s/ Douglas Gealy President and Member of ACME Parent's March 31, 1999
- ---------------------------- Board of Advisors
Douglas Gealy
/s/ Thomas D. Allen Executive Vice President and Chief March 31, 1999
- ---------------------------- Financial Officer and Member of the
Thomas D. Allen Board of Advisors
(Principal Financial Officer)
/s/ Edward Danduran Vice President and Controller March 31, 1999
- ---------------------------- (Principal Accounting Officer)
Edward Danduran
/s/ Thomas Allen Majority Member March 31, 1999
- ----------------------------
ACME Intermediate Holdings, LLC
By: Thomas Allen
Title: Executive Vice President and
Chief Financial Officer
</TABLE>
<PAGE> 39
ACME INTERMEDIATE HOLDINGS, LLC AND ACME TELEVISION, LLC
(Parent Companies)
CONDENSED FINANCIAL INFORMATION
BALANCE SHEETS
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------------------------------------------
1998 1997
-------------------------------- --------------------------------
ACME ACME
INTERMEDIATE ACME INTERMEDIATE ACME
HOLDINGS, LLC TELEVISION, LLC HOLDINGS, LLC TELEVISION, LLC
------------- --------------- -------------- ---------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
ASSETS
Cash and cash equivalents $ -- $ 872 $ -- $ 8,693
Accounts receivable -- 12 -- --
Due from affiliates 4 131 54 162
Prepaid expenses and other current
assets -- 127 -- 177
--------- --------- --------- ---------
Total current assets 4 1,142 54 9,032
Property and equipment, net -- 200 -- 139
Investment in and advances to subsidiaries 71,295 220,542 80,098 197,888
Acquisition related deposits -- 36 -- --
Prepaid financing costs, less current
portion 1,596 6,657 1,594 7,079
--------- --------- --------- ---------
Total assets 72,895 228,577 81,746 214,138
========= ========= ========= =========
LIABILITIES
Accounts payable -- 1,793 -- 2,774
Accrued liabilities -- 1,831 -- 433
Capital leases payable -- 40 --
--------- --------- --------- ---------
Total current liabilities -- 3,664 -- 3,207
Capital leases payable, less current
portion -- 170 --
Bank borrowings -- 8,000 -- --
Due to affiliates 131 -- 162
Senior Secured Discount Notes -- 145,448 -- 130,833
Senior discount notes 42,052 -- 36,863 --
--------- --------- --------- ---------
Total liabilities 42,183 157,282 37,025 134,040
--------- --------- --------- ---------
Members' Capital
Members' Capital 58,402 92,563 51,355 85,516
Accumulated deficit (27,690) (21,268) (6,634) (5,418)
--------- --------- --------- ---------
Total members' capital 30,712 71,295 44,721 80,098
========= ========= ========= =========
Total liabilities and members'
capital 72,895 228,577 81,746 214,138
========= ========= ========= =========
</TABLE>
See accompanying notes to condensed financial information.
<PAGE> 40
ACME INTERMEDIATE HOLDINGS, LLC AND ACME TELEVISION, LLC
(Parent Companies)
CONDENSED FINANCIAL INFORMATION
STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------------------------------------------------
1998 1997
------------------------------- ----------------------------------
ACME ACME
INTERMEDIATE ACME INTERMEDIATE ACME
HOLDINGS, LLC TELEVISION, LLC HOLDINGS, LLC TELEVISION, LLC
------------- --------------- --------------- ---------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Revenues $ -- $ 181 $ -- $ --
-------- -------- -------- --------
Selling, general and administrative -- 2,923 -- 1,415
Depreciation and amortization -- 67 -- 9
-------- -------- -------- --------
Operating loss -- (2,809) -- (1,424)
Interest income from subsidiaries -- 24,978 -- 5,631
Other income 1 1,112 -- 273
Interest expense (5,207) (16,091) (1,216) (3,712)
-------- -------- -------- --------
Net income before equity in net loss of
subsidiaries (5,206) 7,190 (1,216) 768
Equity in net loss of subsidiaries (15,850) (23,040) (5,418) (6,186)
-------- -------- -------- --------
Net loss (21,056) (15,850) (6,634) (5,418)
======== ======== ======== ========
</TABLE>
See accompanying notes to condensed financial information.
<PAGE> 41
ACME INTERMEDIATE HOLDINGS, LLC AND ACME TELEVISION, LLC
(Parent Companies)
CONDENSED FINANCIAL INFORMATION
STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------------------------------------------------
1998 1997
------------------------------- --------------------------------
ACME ACME
INTERMEDIATE ACME INTERMEDIATE ACME
HOLDINGS, LLC TELEVISION, LLC HOLDINGS, LLC TELEVISION, LLC
------------- --------------- -------------- ---------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Cash flows from operating activities:
Net loss $ (21,056) $ (15,850) $ (6,634) $ (5,418)
Adjustments to reconcile net loss to net cash
provided by operating activities:
Depreciation and amortization -- 67 -- 9
Accretion on Senior Secured Discount Notes -- 14,615 -- 3,463
Accretion on Senior Discount Notes 5,207 -- 1,213 --
Equity in net loss of subsidiaries 15,850 23,040 5,418 6,186
Changes in assets and liabilities:
Increase in accounts receivable -- (12) -- --
Decrease (Increase) in due from affiliates 50 31 -- (162)
Increase in other assets -- 386
(Increase) decrease in prepaid expenses -- 50 -- (177)
(Increase) decrease in accounts payable -- (981) -- 2,774
Increase in accrued expenses -- 1,398 -- 433
Decrease is due to affiliates (31) -- -- --
--------- --------- --------- ---------
Net cash provided by (used in)
operating activities 20 22,744 (3) 7,108
--------- --------- --------- ---------
Cash flows from investing activities:
Purchase of property and equipment -- -- -- (148)
Investments in and advances to affiliates -- (38,544) (62,335) (180,999)
--------- --------- --------- ---------
Net cash used in investing activities -- (38,544) (62,335) (181,147)
--------- --------- --------- ---------
Cash flows from financing activities:
Increase in notes payable to bank -- 11,000 -- --
Payments of notes payable to banks -- (3,000) -- --
Payments on capital leases -- (21) -- --
Contribution from Parent -- -- 24,126 62,441
Issuance of units -- -- 4,154 --
Issuance of Senior Discount Notes -- -- -- 127,370
Issuance of Senior Secured Notes -- -- 35,650 --
Payment of prepaid financing costs (20) -- (1,592) (7,079)
--------- --------- --------- ---------
Net cash provided by (used in) financing
activities (20) 7,979 62,338 182,732
--------- --------- --------- ---------
Net increase (decrease) in cash -- (7,821) -- 8,693
Cash at beginning of period -- 8,693 -- --
--------- --------- --------- ---------
Cash at end of period -- 872 -- 8,693
========= ========= ========= =========
Cash Payments for:
Interest -- -- -- 71
Taxes -- -- -- --
Non-Cash Transactions:
Contributions by Parent 7,047 7,047 23,075 23,075
Property and equipment contributed
to consolidated subsidiaries -- 103 -- --
Property and equipment acquired
for capital lease obligations -- 231 -- --
</TABLE>
See accompanying notes to condensed financial information
<PAGE> 42
ACME INTERMEDIATE HOLDINGS, LLC (PARENT COMPANY)
ACME TELEVISION, LLC (PARENT COMPANY)
Notes to Condensed Financial Information
(1) BASIS OF PRESENTATION
Pursuant to the rules and regulations of the Securities and Exchange
Commission, the Condensed Financial Statements of ACME Intermediate
Holdings, LLC and ACME Television, LLC do not include all of the information
and notes normally included with financial statements prepared in accordance
with generally accepted accounting principles. It is therefore suggested
that these Condensed Financial Statements be read in conjunction with the
Consolidated Financial Statements and Notes thereto included at Item 8 of
this filing.
(2) CASH DIVIDENDS
There have been no cash dividends declared by either ACME Intermediate
Holdings, LLC or ACME Television, LLC.
(3) LONG-TERM DEBT
There are no cash interest payments due on ACME Intermediate Holdings, LLC's
Senior Secured Discount Notes until March 31, 2003. There are no cash
interest payments due on ACME Television, LLC's Senior Discount Notes until
March 31, 2001.
<PAGE> 43
ACME INTERMEDIATE HOLDINGS, LLC AND SUBSIDIARIES
ACME TELEVISION, LLC AND SUBSIDIARIES
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED DECEMBER 31, 1998 AND DECEMBER 31, 1997
(IN THOUSANDS)
<TABLE>
<CAPTION>
ADDITIONS
BALANCE AT ADDITIONS ACQUIRED IN BALANCE AT
BEGINNING CHARGED TO PURCHASE END OF
ALLOWANCE FOR DOUBTFUL ACCOUNTS OF PERIOD EXPENSE TRANSACTIONS DEDUCTIONS PERIOD
- ------------------------------- --------- ---------- ------------ ---------- ----------
<S> <C> <C> <C> <C> <C>
Year ended December 31, 1997 0 51,000 0 51,000
Year ended December 31, 1998 51,000 223,776 280,224 0 555,000
</TABLE>
- ------------------
(1) Additions relating to purchase transactions.
<PAGE> 44
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------ -------------------
<S> <C>
3.1 Certificate of Formation of ACME Intermediate Holdings, LLC,
incorporated by reference to Exhibit 3.1 of ACME Intermediate
Holdings, LLC's Registration Statement on Form S-4, File No.
333-40277 filed on November 14, 1997 (the "Intermediate Registration
Statement")
3.2 Limited Liability Company Agreement of ACME Intermediate Holdings,
LLC, incorporated by reference to Exhibit 3.2 of Intermediate
Registration Statement.
3.3 Certificate of Formation of ACME Television, LLC, incorporated by
reference to Exhibit 3.1 of ACME Television, LLC's Registration
Statement on Form S-4, File No. 333-40281, filed on November 14,
1997 (the "Television Registration Statement").
3.4 Limited Liability Company Agreement of ACME Television, LLC,
incorporated by reference to Exhibit 3.2 of the Television
Registration Statement.
4.1 Indenture, dated September 30, 1997, by and among ACME Intermediate
Holdings, LLC and ACME Intermediate Finance, Inc., as Issuers, and
Wilmington Trust Company, incorporated by reference to Exhibit 4.2
of the Intermediate Registration Statement.
4.2 Form of Securities of ACME Intermediate Holdings, LLC, incorporated
by reference to Exhibit 4.3 of the Intermediate Registration
Statement.
4.3 Indenture, dated September 30, 1997, by and among ACME Television,
LLC and ACME Finance Corporation, as Issuers, the Guarantors named
therein, and Wilmington Trust Company, incorporated by reference to
Exhibit 4.1 of the Television Registration Statement.
4.5 First Supplemental Indenture, dated February 11, 1998, by and among
ACME Television, LLC and ACME Finance Corporation, the Guarantors
named therein, and Wilmington Trust Company, incorporated by
reference to Registrant's Quarterly Report on Form 10-Q for the
period ending March 31, 1998.
4.6 Second Supplemental Indenture, dated March 13, 1998, by and among
ACME Television, LLC and ACME Finance Corporation, the Guarantors
named therein, and Wilmington Trust Company, incorporated by
reference to Registrant's Quarterly Report on Form 10-Q for the
period ending March 31, 1998.
4.7 Third Supplemental Indenture, dated August 21, 1998, by and among
ACME Television, LLC and ACME Finance Corporation, as issuers, the
Guarantors named therein, and Wilmington Trust Company, incorporated
by reference to Registrant's Quarterly Report on Form 10-Q for the
period ending September 30, 1998.
10.1 Agreement, dated January 30, 1998, by and between ACME Television
Licenses of Tennessee, LLC, Ruth Payne Carman (dba E&R
Communications) and the Carman-Holly Partnership, incorporated by
reference to Registrant's Quarterly Report on Form 10-Q for the
period ending March 31, 1998.
10.2 Asset Purchase Agreement, dated March 2, 1998, by and between ACME
Television, LLC and Second Generation of Florida, Ltd., incorporated
by reference to Registrant's Quarterly Report on Form 10-Q for the
period ending March 31, 1998.
</TABLE>
<PAGE> 45
<TABLE>
<S> <C>
10.3 Time Brokerage Agreement, dated March 2, 1998, by and between ACME
Television, LLC and Second Generation of Florida, Ltd., incorporated
by reference to Registrant's Quarterly Report on Form 10-Q for the
period ending March 31, 1998.
10.4 Assignment Agreement, dated June 16, 1998, by and between ACME
Television Licenses of Tennessee, LLC, Ruth Payne Carman (dba E&R
Communications), Carman-Harrison, LLC and Donald E. Holley,
incorporated by reference to Registrant's Quarterly Report on Form
10-Q for the period ending June 30, 1998.
10.5 Time Brokerage Agreement, dated April 20, 1998, for KUPX-TV, by and
amoung Paxson Salt Lake City License, Inc., Paxson Communications of
Salt Lake City-30, Inc. and ACME Television of Utah, LLC,
incorporated by reference to Registrant's Quarterly Report on Form
10-Q for the period ending June 30, 1998.
10.6 Master Lease Agreement, dated June 30, 1998, by and between General
Electric Capital Corporation and ACME Television, LLC, incorporated
by reference to Registrant's Quarterly Report on Form 10-Q for the
period ending June 30, 1998.
10.7* Purchase Agreement, dated October 30, 1998, by and between Roberts
Broadcasting of New Mexico, LLC and Acme Television of New Mexico,
LLC.
10.8* Option Agreement, dated November 5, 1998, by and between Roberts
Broadcasting of New Mexico, LLC and Acme Television of New Mexico,
LLC.
10.9* Tower Lease Agreement, dated December 30, 1998, by and between
Roberts Broadcasting of New Mexico, LLC and Acme Television of New
Mexico, LLC.
21.0* Subsidiaries
27.1* Financial Data Schedule for ACME Television, LLC, available in
electronic format as filed by the Registrant.
27.2* Financial Data Schedule for ACME Intermediate Holdings, LLC,
available in electronic format as filed by the Registrant.
</TABLE>
- ------------
* Filed herewith
<PAGE> 1
EXHIBIT 10.7
PURCHASE AGREEMENT
AGREEMENT entered into this 30th day of October, 1998, by and between
ROBERTS BROADCASTING OF NEW MEXICO, LLC, a Missouri limited liability company
("Roberts") and ACME TELEVISION OF NEW MEXICO, LLC, a Delaware limited liability
company ("ACME").
WITNESSETH:
WHEREAS, Roberts has entered into a Purchase Agreement with Mark A. and
Marcia C. Preisler ("Preisler") dated August 27, 1998 providing for the purchase
by Roberts of certain real property known as 8341 Washington NE, Albuquerque,
New Mexico (the "Property") as modified by a Purchase Agreement Addendum
executed by Roberts on August 31, 1998 and by Preisler on August 27, 1998
(collectively, the "Agreement"); and
WHEREAS, ACME desires to purchase the Property from Roberts and Roberts
is willing to sell the Property to ACME;
NOW THEREFORE, in consideration of the premises, the parties agree as
follows:
1. Roberts agrees to sell to ACME, and ACME agrees to purchase from
Roberts, the Property and any and all rights and warranties (the "Related
Rights") acquired by Roberts under the Agreement, except as otherwise
specifically hereinafter set forth.
2. The purchase price payable by ACME to Roberts for the Property
shall be $460,000.
3. The closing on the purchase of the Property by ACME shall occur
at Albuquerque Title Co., Inc., 2400 Louisiana Blvd., N.E., Bldg. 5, Suite 200,
Albuquerque, New Mexico 87110 immediately after Roberts' closing with Preisler,
which is currently scheduled for two o'clock p.m. on November 5, 1998, or at
such other time and place as Roberts and ACME may agree.
4. Roberts and ACME each represent and warrant to the other that it
has no liability for real estate commission or similar obligations relating to
the sale by Roberts to ACME contemplated
<PAGE> 2
hereby. Each party agrees to indemnify the other from any claims by others
claiming a commission based on claims of having dealt with the indemnifying
party.
5. In the event that any Related Right contained in the Agreement
cannot be conveyed to ACME, then, at ACME's election, Roberts agrees to assert
such Related Right in its own name, including through legal action to recover
damages from Preisler with respect thereto. Roberts shall pay any such recovery
to ACME. ACME shall reimburse Roberts for its reasonable costs and expenses with
respect to such recovery, including legal fees.
6. This agreement is intended to compliment and not supersede that
certain Memorandum from Tom Allen to Michael Roberts dated August 14, 1998 and
that certain letter agreement between Roberts and ACME dated September 29, 1998.
7. This agreement may be executed in two or more counterparts, each
of which shall be deemed an original instrument, but all such counterparts shall
constitute but one instrument.
IN WITNESS WHEREOF, the undersigned have executed this agreement on the
date first above written.
ROBERTS BROADCASTING OF
NEW MEXICO, LLC
By: /s/ Steven C. Roberts
------------------------------------
Steven C. Roberts
Member
ACME TELEVISION OF NEW MEXICO, LLC
By: /s/ Thomas D. Allen
------------------------------------
Name: Thomas D. Allen
----------------------------------
Title: Executive Vice President
---------------------------------
2
<PAGE> 1
EXHIBIT 10.8
OPTION AGREEMENT
THIS AGREEMENT is made as of November 5 1998 by and between ROBERTS
BROADCASTING OF NEW MEXICO, LLC, a Missouri limited liability company, 1408
North Kingshighway, St. Louis, Missouri 63113 ("OPTIONEE") and ACME TELEVISION
OF NEW MEXICO, LLC, a Delaware limited liability company, 10829 Olive Boulevard,
St. Louis, Missouri 63141 ("OPTIONOR").
W I T N E S S E T H:
WHEREAS, affiliates of Optionor and Optionee entered into and
consummated an Asset Purchase Agreement in which an affiliate of Optionor
acquired certain assets of KWBQ-TV, Santa Fe, New Mexico on December 15, 1997;
and
WHEREAS, in connection with the KWBQ-TV transaction, ACME Television
Holdings, LLC ("ACME") agreed to lease studio space from Optionee; and
WHEREAS, by Memorandum dated August 14, 1998 (the "Memorandum") ACME
agreed that, in exchange for a release from the obligation to lease studio space
from Optionee, ACME would acquire certain real property in Albuquerque, New
Mexico from Optionee for use as the KWBQ-TV studio, but expressly subject to and
conditioned upon the grant of an option (the "Option") by Optionee to reacquire
such real property at specific times in the future; and
WHEREAS, by Letter Agreement dated September 29, 1998 (the "Letter
Agreement"), ACME and Optionee agreed to further terms and conditions with
respect to the Option as set forth therein; and
<PAGE> 2
WHEREAS, ACME has assigned all of its rights and obligations with
respect to the Memorandum and the Letter Agreement to a subsidiary, the
Optionor; and
WHEREAS, among other things, Optionor will obtain significant accounting
and tax benefits as the owner of such real property; and
WHEREAS, as described in the Memorandum, Optionee entered into a
Purchase Agreement with a third party for certain improved real property located
at 8341 Washington, NE, Albuquerque, New Mexico described on Exhibit "A"
attached hereto (hereinafter referred to as the "Premises"); and
WHEREAS, Optionor entered into a Purchase Agreement with Optionee with
respect to the Premises; and
WHEREAS, the closing of the purchase by Optionor of the Premises
occurred on November 5, 1998; and
WHEREAS, the parties hereto intend to be bound by the provisions of this
Agreement and set forth their entire mutual understanding with respect to the
terms of the option as contemplated herein;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. GRANT OF OPTION. For $10.00 and other valuable consideration,
including Optionee's release of ACME's obligation to enter into a lease with
Optionee, Optionor does
2
<PAGE> 3
hereby grant to Optionee the sole and exclusive option to purchase from Optionor
the Premises aforesaid on the terms hereinafter set forth.
2. OPTION PERIOD. The term of the Option will commence on November
6, 1998 and terminate at 11:59 p.m. on November 5, 2013.
3. EXERCISE OF OPTION. (a) Except as described in (b) below, the
Option shall be exercisable by Optionee during the period from November 6, 2008
through December 31, 2008 and, if not previously exercised, during the period
from November 6, 2013 through December 31, 2013 (the "Option Exercise Period").
Optionee may exercise the Option by giving written notice to that effect to
Optionor at any time during the Option Exercise Period. In that event, closing
of title will take place not more than forty-five (45) days after Optionor's
receipt of Optionee's exercise of the option, unless otherwise extended upon
mutual agreement by Optionor and Optionee. Neither party will unreasonably
withhold its consent to extend the closing date should it become necessary to do
so. The terms and conditions of the sale are described in Paragraph 8
hereinafter.
(b) Optionee may also exercise the Option at any time within
sixty (60) days after the occurrence of any of the following events ("Option
Events"):
(i) any affiliate of Optionor has completed a public
offering of equity securities pursuant to the Securities Act of 1933, as amended
(but not including any exempt transaction as permitted by Section 3 or Section 4
thereof); or
3
<PAGE> 4
(ii) notice to Optionee, which shall promptly be
given by Optionor, that any mortgage with respect to the Premises is subject to
foreclosure by a Lender (as defined below);
(iii) notice to Optionee that there has been a change
in control of Optionor. For purposes hereof, a change of control shall include a
sale or transfer of all or substantially all of Optionor's assets, a merger or
consolidation in which Optionor or an affiliate thereof is not the survivor, or
any transaction or series of transactions after which at least 50% of the voting
control of Optionor is held directly or indirectly by persons other than the
original investors in ACME. In the event Optionee does not exercise the option
after the occurrence of an Option Event, the Option shall be deemed to be
cancelled.
4. OPTIONOR'S WARRANTIES. Optionor represents and warrants to and
agrees with Optionee as follows:
(a) That Optionor has the authority to enter into this
Agreement and all necessary actions have been taken to authorize Optionor to
enter into this Agreement. If Optionee exercises the option, the Optionor agrees
to furnish, at closing, such evidence of authority to consummate the sale as
shall be reasonably acceptable to Optionee's counsel and the title company.
(b) That there are no recorded or unrecorded contracts,
leases and/or options pertaining to or affecting the sale of the Premises or any
part thereof other than this Agreement and such loan agreements ("Loan
Agreements") to which Optionor may be subject with a lender or lenders to
Optionor or its parent or affiliated entities (a "Lender").
4
<PAGE> 5
(c) If Optionee exercises the Option, the warranties and
representations contained herein will be true as of the time of closing as if
repeated and made to speak at the time.
(d) Optionor warrants that it is the sole owner of the
Premises.
5. RECORDING OF OPTION AGREEMENT OR A MEMORANDUM THEREOF. Optionor
and Optionee agree that a memorandum containing certain material terms of the
Option in form reasonably satisfactory to Optionor may be recorded by Optionee,
at its sole cost and expense, in the real estate records of Bernallilo County,
New Mexico. Optionee shall, upon the termination of this Agreement, execute such
discharges as requested by Optionor.
6. EMINENT DOMAIN. In the event of a partial taking by eminent
domain or condemnation, this Option shall remain in full force and effect, the
Purchase Price shall be equitably reduced in proportion to the decrease in the
value of the Premises, and Optionor shall retain all rights to all condemnation
or other awards. Subject to the preceding sentence, Optionee shall be entitled
to file its own claim with respect to any diminution of the value of the
Premises affected by this Option.
7. CASUALTY LOSS. In the event the Premises are substantially
damaged and rendered unusable by a casualty event such as fire, earthquake or
similar occurrence, Optionor may, in its sole discretion (i) abandon the
Premises in which event the Option shall be deemed to be cancelled, unless,
within forty-five days after notice, Optionee exercises the Option, in which
case the Purchase Price shall be reduced by the amount of the proceeds of
Optionor's insurance paid with respect to such casualty or (ii) rebuild the
Premises, in which event the Option shall remain in effect.
5
<PAGE> 6
8. TERMS AND PROVISION OF SALE. The parties hereto agree that if
and when Optionee exercises its Option, Optionee shall purchase the Premises and
Optionor shall sell the Premises on the following terms and conditions. For
purposes of the following provisions, Optionor shall be referred to as "Seller"
and Optionee shall be referred to as "Buyer":
(a) Purchase price - $460,000. The purchase price shall be
paid at closing by certified or cashier's check.
(b) Closing shall take place at a title insurance company
located in Bernallilo County, New Mexico, designated by the Buyer, or at such
other place as may be agreed upon by the parties hereto.
(c) Seller shall convey title by General Warranty Deed and
shall provide an adequate affidavit of title.
(d) Title shall be good and marketable and free and clear of
all claims and rights of others, except as expressly permitted herein or such
rights as do not materially interfere with Buyer's use and enjoyment of the
Premises, including covenants and easements now existing or entered in the
ordinary course with respect to the Premises.
(e) The premises shall be conveyed subject to then current
real estate taxes and such taxes shall be prorated as of the date of closing.
(f) Closing costs, title fees and related expenses shall be
paid by Buyer.
6
<PAGE> 7
9. LEASE OF PREMISES. In the event that Optionee exercises the
Option, for a period of 30 days following the exercise of the Option, Optionor
or any successor to or assignee of Optionor's rights hereunder, specifically
including any Lender granted a mortgage, security interest or collateral
assignment, with respect to the Premises or the personal property therein, shall
have the right but not the obligation to enter into a lease of the Premises on
the following terms: a triple net basis; an initial term of five years with one
five year renewal option; and at the rental amount described below:
(a) In the event the Option has been exercised pursuant to
Paragraph 3(b) hereof, the monthly rent for the Premises shall be $4,600.00 (the
"Base Rent") per month increased (but in no event decreased) by a percentage
equal to the percentage increase in the Consumer Price Index. All Urban
Consumers, Albuquerque Metropolitan Statistical Area (or any successor or
substitute index) ("Adjustment") between the date of this Agreement and the
commencement date of the lease, with subsequent Adjustments occurring as of
January 1 of the relevant year.
(b) At any time after November 6, 2008, the fair market
rent. In the event the parties cannot agree upon the fair market rent, such rent
shall be determined by final and binding arbitration. Pending agreement on or
determination of the fair market rent by arbitration, Lessee shall pay the Base
Rent plus Adjustment, and upon determination of the fair market rent, such
amount shall be applied retroactively to November 6, 2008 with payment to be
made to Lessor of the balance due within ten days after such determination, or,
as the case may be, recoupment by Lessee of any excess payment to be made by
credits towards future rent amounts, provided, that such credit shall not be
applied in any one month for an amount greater than 50% of the monthly rent.
7
<PAGE> 8
10. NOTICES. Any notice required, permitted or appropriate hereunder
shall be served upon the respective parties by personal delivery or by certified
mail, return receipt requested, at the addresses indicated above, and shall be
effective as of the date of delivery or mailing. All notices required to be
given hereunder shall be in writing.
11. EFFECT OF AGREEMENT. This Option Agreement shall inure to the
benefit of and be binding upon the parties hereto, and their respective
successors and assigns.
12. ENTIRE AGREEMENT. This Option Agreement represents the entire
agreement and understanding between the parties hereto and no oral
representations or promises have been made with respect thereto.
13. MODIFICATION OF AGREEMENT. This Option Agreement may not be
altered or modified orally, except by written agreement executed by the parties
hereto.
14. AGREEMENT. This Agreement and the rights under the Option may
not be assigned by a party except (i) to an affiliate of such party, or (ii)
with the express written consent of the other party, which shall not be
unreasonably withheld, or (iii) as otherwise provided herein, specifically
including a collateral assignment to a Lender.
15. COSTS AND EXPENSES. In the event either party brings an action
to enforce its rights under this Agreement, the prevailing party shall be
entitled to recover all costs and expenses including reasonable attorney's fees.
16. BROKERS. Each party warrants to the other that it has not dealt
with or incurred liability for any commissions relating to this Option or the
sale contemplated hereby. Each party
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agrees to indemnify the other from any claims and expenses of brokers claiming a
commission based on claims of having dealt with the indemnifying party.
17. TRANSFER OR CHANGE IN PREMISES. Optionor warrants and covenants
that during the Option term it will not sell, contract to sell, lease or
sub-lease the Premises, nor will it take any actions which change the allowed
use of the Premises as a commercial office building and/or television studio.
Notwithstanding any other provision of this Agreement, Optionor may (i) enter
into customary Loan Documents, specifically including mortgages, or security
agreements or collateral assignments with respect to the Premises, personal
property located therein or this Option Agreement, provided that any such Lender
shall acknowledge in writing the first priority of Optionee's rights under this
Agreement and Optionee shall acknowledge in writing Lender's rights under this
Agreement and any Loan Agreement; or (ii) sell the Premises to any purchaser of
all or substantially all of the assets of KWBQ-TV subject to Optionee's rights
and obligations under this Agreement.
18. FURTHER ACTS. The parties agree to execute such further
documents and take such further actions as may be reasonably required to carry
out the provisions and intent of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals and
caused this
Option Agreement to be executed the day and year first above written.
WITNESS: ACME TELEVISION
OF NEW MEXICO, LLC
By: /s/ Thomas Allen
------------------------------------
Name: Thomas Allen
Title:
ROBERTS BROADCASTING OF
NEW MEXICO, LLC
By: /s/ Steve Roberts
------------------------------------
Name: Steve Roberts
Title:
STATE OF ____________ )
) ss.
COUNTY OF _________ )
I CERTIFY that on ________________, 1998, _________________________
personally came before me, _____________________________, and acknowledged under
oath, to my satisfaction, that this person: (a) was the maker of the attached
instrument; (b) was authorized to and did execute this instrument as
_________________ of Roberts Broadcasting of New Mexico, LLC, the entity named
in this instrument; and (c) executed this instrument as the act of the entity
named in this instrument.
-----------------------------------------
Notary Public
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<PAGE> 11
STATE OF _____________ )
) ss.
COUNTY OF __________ )
I CERTIFY that on ________________, 1998, ______________________
personally came before me, ______________________________, and acknowledged
under oath, to my satisfaction, that this person: (a) was the maker of the
attached instrument; (b) was authorized to and did execute this instrument as
______________ of ACME Television of New Mexico, LLC, the entity named in this
instrument; and (c) executed this instrument as the act of the entity named in
this instrument.
-----------------------------------------
Notary Public
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<PAGE> 1
EXHIBIT 10.9
TOWER LEASE AGREEMENT
This Lease Agreement is made and entered into as of the 30th day of
December, 1998 by and between ROBERTS BROADCASTING COMPANY OF NEW MEXICO,
L.L.C., a Missouri limited liability company ("Landlord"), and ACME TELEVISION
OF NEW MEXICO, L.L.C., a Delaware limited liability company ("Tenant").
WITNESSETH:
WHEREAS, Landlord is the lessee of certain real property (the
"Premises") located on the Zia Indian Reservation in Sandoval County, New
Mexico, more particularly described on Exhibit A attached hereto, pursuant to a
lease (the "Ground Lease") with the Pueblo of Zia (the "Tribe"); and
WHEREAS, Landlord, at its sole cost and expense (except for payments
provided for in this Lease), is constructing on the Premises a communications
transmission tower (the "Tower") substantially as described in Exhibit 1 hereto
and a transmitter building (the building with any and all future additions
thereto, hereinafter the "Transmitter Building"); and
WHEREAS, the Tribe is the owner of the Premises and has leased the
Premises to Landlord; and
WHEREAS, Tenant is the Federal Communications Commission (the "FCC")
permittee of Television Station KWBQ-TV, Channel 19, Santa Fe, New Mexico (the
"Station") and desires to place and operate an analog antenna for the Station at
a location on the Tower (the "Antenna Space"), to install and to maintain at
Tenant's expense certain transmission lines from the Station's transmitter
equipment across or under portions of the Premises and through or upon the Tower
to the Antenna Space, and to occupy the Transmitter Building (the "Tenant's
Space") in which to locate the Station transmitter and related equipment; and
WHEREAS, Tenant requires other space on the Premises for the
installation of Tenant's generator and related fuel storage tank, an ancillary
broadcast microwave antenna, a two-way radio facility, power supply and
ancillary equipment and a down link earth station, with the further right to
interconnect such equipment with equipment in the Tenant's Space in the manner
provided herein; and
WHEREAS, Tenant has received a construction permit issued by the FCC
(the "Construction Permit") to locate its antenna on the Tower and to install
its transmitter in the Transmitter Building;
NOW, THEREFORE, in consideration of Tenant's obligation to pay rent and
in consideration of the mutual rights, obligations, terms, covenants, and
provisions hereof, the parties mutually agree as follows:
<PAGE> 2
ARTICLE I
LEASED PREMISES
(a) Lease Rights. Landlord, for and in consideration of the
covenants and conditions herein mentioned, reserved and contained, to be kept
and performed by Tenant, and the rents to be paid by Tenant hereunder, does
hereby grant to Tenant, for the rental periods described herein, and Tenant does
hereby take from Landlord for said periods, upon and subject to the covenants
and conditions herein contained, the following:
(1) Antenna Space. The Antenna Space for the installation
and operation of Tenant's Station KWBQ-TV television Channel 19 antenna
will be at the 980 foot level in the northwest position on the Tower as
described in Exhibit A hereto;
(2) Tenant's Space. The Tenant's Space within the
Transmitter Building for installation and operation of Tenant's
transmitter and related equipment shall be as depicted on Exhibit B
hereto and shall be for Tenant's exclusive use; and
(3) Additional Areas. Occupancy of additional areas of space
outside the Transmitter Building at locations mutually acceptable to
Landlord and Tenant for: (i) placement and use of Tenant's generator and
generator fuel tank (which shall comply with all applicable laws, rules
and ordinances); (ii) the installation and use of two auxiliary
broadcast microwave antennas up to eight feet in diameter at the 350
foot and 650 foot levels, respectively, on the Tower or as otherwise
agreed by the parties; (iii) the installation and use of a down link
earth station; (iv) the installation and use of a two-way radio or
telemetry facility; (v) the installation and use of a single mobile
telephone and/or telemetry antenna and line for the exclusive use by
Tenant on a non-commercial basis; and (vi) transmitter power supplies
and ancillary equipment, with the further right to install, maintain,
repair, replace and remove wires, transmission line or conduit for all
of the foregoing over courses mutually acceptable to Landlord and
Tenant; and
(4) Access. The right, in common with others, to use the
roadways constructed by Landlord to and on the Premises for ingress and
egress to and from the Transmitter Building and Tower as reasonably
necessary for purposes of Tenant's installation, removal, servicing,
maintenance and repair of Tenant's equipment therein; and
(5) Transmission Lines. The limited and non-exclusive right
to install and to maintain a waveguide transmission line having a
diameter of no more than 6 1/8 inches from the Tenant's Space to the
Antenna Space, generally on the Tower, all for the sole purpose of
enabling Tenant to conduct its broadcasting activities and related
studio-transmitter or down-link communications; and
(6) Utility Lines. The right, in common with others, at
Tenant's expenses, to connect to power, telephone and utility lines in
the Transmitter Building provided at the sole cost and expense of
Landlord, including any tariffs or easement charges of adjacent
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landowners; provided, however, Tenant shall also bear the actual costs
of any increase in the capacity of the power, telephone and utility
lines necessary to accommodate Tenant's use thereof but only if such
capacity significantly exceeds the specifications set forth on Exhibit C
hereto.
(7) Sanitation Facilities. Tenant shall have the right to
have and maintain at a location of Landlord's selection a combustible
toilet and such other sanitation facilities as may be desired by Tenant
or required by government authority. It is understood by Tenant that
Landlord does not provide, and has no obligation to provide, potable or
other water at the Leased Premises.
(8) DTV Antenna. During the term of this Lease, Tenant upon
30 days' notice to Landlord may install a digital television antenna
immediately below Tenant's analog antenna. Tenant's notice of intent to
install a digital antenna shall be accompanied by an engineering
analysis from a qualified, independent engineer showing the effect on
the Tower of Tenant's proposed digital antenna installation. Landlord
acknowledges that the Tower has been designed in contemplation of
Tenant's installation of a digital television antenna as described
herein and use of a 6 1/8 inch transmission line from ground level to
such antenna and Tenant shall be responsible for any additional
modification to the Tower not contemplated by the initial design and
caused by Tenant's installation of the digital television antenna and
transmission line. Rent for the digital antenna space shall be
determined as provided in Article III. The digital antenna shall be
subject to the same provisions of this Lease applicable to the analog
antenna originally installed on the Tower, including, without limit,
those provisions relating to construction, installation and maintenance;
(b) Use of Premises. Except as otherwise specifically stated herein,
all of the space, premises and rights granted under this Article I are demised
and leased on a limited and non-exclusive basis and are hereinafter sometimes
referred to as the "Leased Premises". Tenant's use of the Leased Premises shall
be limited to broadcasting activities and studio-transmitter and down-link
activities associated with the broadcast operations of the Station; and
(c) Representation by Landlord. Landlord covenants, represents and
warrants to Tenant as follows: (i) Landlord has a valid leasehold estate with
respect to the Premises pursuant to the Ground Lease for the entire term of this
Lease and any renewal term; (ii) Landlord has full power and authority to enter
into and carry out the terms of this Lease without any consents from third
parties; (iii) at such time as the Tower is made available to Tenant, the Tower
will be registered and in compliance with all applicable regulations of the
Federal Communications Commission and the Federal Aviation Administration; (iv)
subject to the provisions of Article XXI below, Landlord will complete
construction of the Tower as contemplated herein and make it ready for
installation of Tenant's antenna by February 1, 1999; and (v) the uses of the
Premises as provided herein are permitted by the Ground Lease. Following
execution of this Lease, Landlord shall promptly give notice to the Tribe in
accordance with the Ground Lease and provide Tenant with evidence of such
notice, which notice Landlord represents is the only notice required under the
Ground Lease for Tenant's non-disturbance protection.
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(d) Additional Microwave Antennas. Provided that Tenant elects to do
so and gives Landlord notice of such election within the first 36 months of the
term of this Lease, Tenant may install and use two additional microwave
antennas, not exceeding eight feet in diameter at the 400 foot and 600 foot
levels, respectively, on the Tower, provided that Tenant pays additional Rent of
$300 per month for each such antenna and pays the expenses for any design and
modifications in connection with the mounting of such antennas.
ARTICLE II
TERM
(a) TO HAVE AND TO HOLD the Leased Premises for a term commencing
February 1, 1999 (the "Commencement Date") and expiring at midnight on January
31, 2014, unless this Lease is sooner terminated as hereinafter provided in
accordance with the terms of this Lease. Tenant may extend this Lease for an
additional 15 year term by giving Landlord notice to such effect at least six
months prior to expiration of the initial term. Such renewal term shall be on
the same terms as the initial term except for a rent increase as provided in
Article III.
(b) Holding Over. If Tenant or anyone claiming under Tenant shall
remain in possession of the Leased Premises or any part thereof after the
expiration of the term of this Lease or any renewal thereof without any
agreement in writing between the Landlord and Tenant with respect thereto, prior
to acceptance of rent by Landlord, the person remaining in possession shall be
deemed a tenant at sufferance, and, after acceptance of rent by Landlord, the
party remaining in possession shall be deemed a tenant from month to month,
subject to the provisions of this Lease insofar as the same may be made
applicable to a tenancy from month to month. The rental during any such period
shall equal one hundred fifty percent (150%) of the rental in effect immediately
preceding such expiration.
ARTICLE III
RENT
(a) Rent. Commencing February 1, 1999 or upon commencement of
broadcasting, whichever first occurs, Tenant shall begin to pay Landlord for the
Leased Premises monthly rent in the amount hereinafter provided (the "Rent") on
or before the first day of each month, commencing with a prorated payment for
any portion of the month in which the Rent payments commence. The Rent shall be
$8,600 per month. Any other payments which are payable when invoiced hereunder
shall be due within twenty (20) days after Tenant's receipt of such invoice.
Effective February 1, 2004, the Rent shall be increased (but in no event
decreased) by a percentage equal to the percentage increase in the Consumer
Price Index, All Urban Consumers, Albuquerque Metropolitan Statistical Area (or
any successor or substitute index) (the "CPI"), from the Commencement Date,
provided that in no event shall such percentage increase exceed 25%. Effective
February 1, 2005 and each February 1 thereafter, the then effective Rent shall
be increased (but in no event decreased) by a percentage equal to the percentage
increase in the CPI over the immediately preceding calendar year, provided that
in no event shall such percentage increase exceed 5% in any year.
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(b) Additional Rent. Tenant shall pay Landlord during the term of
this Lease, as additional rent, all utility, diesel fuel, tax, and maintenance
expenses, including maintenance of the access road, associated with the
Premises, Tower and Transmitter Building and reasonably attributable, either
directly or as a Proportional Share, to Tenant (the "Additional Rent"). As used
in this Lease, "Proportional Share" means that share of the total common
expenses incurred by all users of the Leased Premises calculated by dividing the
space within the Transmitter Building occupied by each tenant by the total space
occupied by all tenants. Tenant's interest in the Transmitter Building at any
given time shall be that fraction determined by dividing the total number of
square feet in Tenant's Space by the total number of square feet in the
Transmitter Building. Landlord shall have the right to grant additional tenants
use of the Transmitter Building (other than in Tenant's exclusive space),
provided that such use shall not, in Landlord's sole reasonable discretion,
result in a material disturbance to Tenant's occupancy of Tenant's Space.
(c) Landlord shall maintain the Transmitter Building (but not the
interior portions of the Tenant's Space or any personal property of Tenant
including, but not limited to, Tenant's air conditioning and ventilation system
and auxiliary power generator) so as to comply with existing rules and
regulations imposed by any governmental authority having jurisdiction over the
ownership or operations of the same.
(d) Landlord shall be solely responsible for compliance with FCC
rules relating to marking, painting and lighting the Tower and all FAA
requirements.
(e) Tenant may install and maintain, at its own cost, an air
conditioning and ventilation system adequate for Tenant's intended use and
serving only Tenant's Space and an auxiliary power generator.
(f) Tenant may install in Tenant's Space in the Transmitter Building
and maintain, at its own cost, a monitored fire alarm system and security
system. The selection of the fire alarm system and security system shall be
subject to the prior approval of Landlord, which approval shall not unreasonably
be withheld or delayed.
(g) Digital Antenna Fee. If Tenant elects to install a digital
antenna on the Tower, the Rent shall increase to an amount equal to 200% of the
applicable Rent immediately prior to such installation. In the event the FCC
revokes Tenant's analog broadcast license and Tenant removes its analog antenna,
Rent for the digital antenna alone shall thereafter be adjusted to 60% of the
Rent for both digital and analog antenna upon removal of the analog antenna.
(h) Security Deposit. Within seven days after execution of this
Lease, Tenant shall pay Lessor the sum of $8,600 as a security deposit for
rental payments and any other amounts due Landlord. At such time as Tenant
installs a digital television antenna on the Tower, the security deposit shall
be increased by the initial monthly rent for such additional antenna. The
security deposit will be returned to Tenant upon any termination of this Lease
less any amounts due Landlord which are then unpaid.
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(i) Late Charge. Any Rent, Additional Rent or other payments due
under this Lease shall be subject to a late payment charge of 4% if not paid
within 10 days after the due date and shall accrue additional interest charges
at the from time to time prime rate of NationsBank, or any successor bank, if
not paid within 30 days after the due date, which interest shall begin to accrue
30 days after the due date.
ARTICLE IV
CONSTRUCTION, INSTALLATION AND USE OF LEASED PREMISES
(a) Tenant's Construction Permit. Tenant represents that it has
obtained its Construction Permit.
(b) Landlord's Regulatory Applications. Landlord represents that it
has received such approvals from the FCC, the Federal Aviation Administration
("FAA") and from all other appropriate governmental authorities for permits
necessary for the construction of the Tower and the Transmitter Building, both
of which shall be the sole and exclusive property of Landlord.
(c) Installation of Tenant's Equipment. Tenant, at Tenant's expense,
shall install Tenant's equipment in the Antenna Space, including the necessary
antennas and transmission lines from the Tenant's Space to the Antenna Space.
Tenant, at Tenant's expense may also install its generator, broadcast microwave
antennas, two-way radio facility, power supply and ancillary equipment and earth
station. In addition to the requirements of Article IV, all work on the Tower by
or on behalf of Tenant shall be performed in accordance with plans and
specifications and by contractors and riggers all approved by Landlord, which
approval shall not be unreasonably withheld or delayed, and shall be subject to
Landlord's reasonable requirements as to the circumstances, timing and sequence
of such work. Without limitation of the foregoing, all equipment installed by
Tenant on the Tower, including the mounting hardware used to attach such
equipment to the Tower, shall be designed to withstand a steady state wind load
of 50 PSF (equivalent to the force produced by a steady state wind speed of 112
MPH on flat surfaces) with such loading calculated under the assumptions of wind
direction leading to the greatest imposed wind loading and, further, of
equipment and its associated hardware being coated with ice having a radial
thickness of two inches. Prior to the commencement of any such work, Tenant
shall cause its contractor to obtain insurance otherwise meeting the
requirements of this Article but affording minimum protection of not less than
$2,500,000 in respect to personal injury or death to any one person, of not less
than $10,000,000 in respect to personal injury or death to any two or more
persons, and of not less than $5,000,000 for property damage. Certificates of
such insurance shall be provided to Landlord prior to the commencement of any
such work. The installation of Tenant's equipment shall be the responsibility of
and at the expense of Tenant under the supervision and direction of Landlord,
provided that, without limitation, and consistent with the Construction Permit,
Landlord may reasonably require changes in the installation method and process
to (1) ensure the structural integrity of the Tower, and (2) avoid interruption,
to the extent possible, of the broadcast activities of other users of the Tower.
All installation shall be consistent with good engineering practices in
compliance with all federal, state and other governmental requirements, and with
the use of the Leased Premises by Landlord and other existing tenants. Upon
completion of such installations, Tenant shall provide Landlord with a written
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certificate of Tenant's engineer certifying compliance with the foregoing
requirements. All installation costs reasonably incurred by Landlord hereunder
shall be chargeable to Tenant, at reasonably competitive rates in the area,
including any additional costs resulting from interruption of transmissions by
other tenants (but excluding consequential damages).
(d) In the event Landlord notifies Tenant that Tenant's construction
or installation is not in material compliance with any requirement of this
Lease, Tenant shall immediately cease such construction or installation until
such time as the issue is resolved and Landlord agrees that construction or
installation may continue.
(e) EXCEPT FOR SPECIFIC WARRANTIES SET FORTH HEREIN, NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, IS MADE BY LANDLORD WITH RESPECT TO THE
SUITABILITY OF THE TOWER AND RELATED FACILITIES FOR TENANT'S INTENDED USE
THEREOF.
(f) Prior Approval of Landlord. All construction and/or installation
done by or on behalf of Tenant and all maintenance, repair, removal or
relocation (which maintenance repair, removal or relocation shall be in
conformity with the equipment specifications set forth herein) of any of
Tenant's equipment on the Tower shall require the prior written approval of
Landlord, which approval shall not be withheld unreasonably. Request for such
approval shall be in writing and shall be furnished to Landlord at least 10 days
prior to the proposed work, provided that repairs of an emergency nature may be
requested and approved orally. Such requests shall state with reasonable
precision the type of equipment to be worked on, the manner and time of the work
to be performed and the precautions to be taken to avoid interference with
equipment or transmissions of others. Any such work must also be consistent with
the obligations of Tenant hereunder. All work on the Tower shall be performed by
qualified engineers, contractors, or riggers satisfactory to Landlord in its
sole discretion.
(g) All construction and/or installation done by or on behalf of
Tenant and all maintenance, repair, removal or relocation involving an
expenditure of Tenant of more than $2,500 (which maintenance, repair, removal or
relocation shall be in conformity with the equipment specifications set forth
herein) of any of Tenant's equipment on the Leased Premises other than the
Tower, of the type which requires notice to or the approval of the FCC, shall
require the prior written approval of Landlord, which approval shall not be
withheld unreasonably. Request for such approval shall be in writing and shall
be furnished to Landlord at least 10 days prior to the proposed work, provided
that repairs of an emergency nature may be requested and approved orally. Such
requests shall state with reasonable precision the type of equipment to be
worked on, the manner and time of the work to be performed and the precautions
to be taken to avoid interference with equipment or transmissions of others. Any
such work must also be consistent with the obligations of Tenant hereunder. All
work shall be performed by qualified duly licensed engineers or contractors
reasonably satisfactory to Landlord in its sole discretion.
(h) Access. Subject to paragraph (d) above, Tenant shall have a
right of access to the Tower at all reasonable times for inspection, repair,
maintenance and replacement of its equipment; provided, however, that (except as
may be provided elsewhere in this Lease) such access and
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activities shall not interfere with the use of the Tower by Landlord or any
tenant or user, or interrupt or otherwise adversely affect the continued
transmitting operations of Landlord or any other tenant or user. Landlord shall
have a right of access, at all reasonable times, for examination, inspection,
emergency repair or replacement of any of Tenant's equipment located in the
Transmitter Building; provided, however, that (except as may be provided
elsewhere in this Lease) such access and activity by Landlord shall not
interfere with the use of the Tower by Tenant or interrupt or otherwise
adversely affect the continued broadcast operation of Tenant. At the outset of
the term of the Lease, Tenant shall provide to Landlord duplicates of any keys
necessary to permit access to Tenant's equipment at said location; provided that
(i) Landlord will advise Tenant as to who receives any such duplicate keys, and
(ii) Tenant shall not be responsible for, any damages suffered by Landlord, its
employees or agents or other tenants entering Tenant's Space when Tenant is not
present, except Tenant shall be responsible if it fails to respond and appear at
the Leased Premises upon 24 hours advance notice or if it authorizes any such
entry by Landlord, its employees or agents or other tenants, except to the
extent such damages result from the negligence of Landlord, its employees or
agents.
(i) Condition of Tenant's Equipment. The equipment installed by
Tenant hereunder shall be and remain the property of Tenant, subject to the
rights of Landlord described in Articles III, IX, and XIII hereof. Except as
otherwise provided in this Agreement, Tenant shall be fully responsible for the
replacement, maintenance, modification, rearrangement and removal of its
equipment installed in or upon the Leased Premises, and Landlord shall have no
responsibility therefor. Tenant shall keep all of its equipment in safe
condition at all times and in compliance with all applicable statutes, rules,
regulations, orders, directives of any governmental body and other standards
pertaining thereto and pertaining to the Leased Premises. The manner of use and
the equipment and devices to be used for any installation, relocation and
removal of Tenant's equipment must be consistent with good engineering practices
and with the quiet and uninterrupted use and occupancy of the Leased Premises by
Landlord and other tenants. Tenant shall at all times keep Landlord's property
free and clear of any and all mechanic's liens or similar claims that might
arise by virtue of Tenant's maintenance, modification, removal or rearrangement
of its equipment installed on the Leased Premises and Tenant shall defend,
indemnify and save harmless the Landlord of, from and against any such claims,
or any costs or expenses, including reasonable attorneys' fees, Landlord may
incur in the defense or removal of any such claims. Consistent with the
Construction Permit, Landlord reserves the right, consistent with good
engineering practices, to approve or disapprove the manner of use and the
equipment and devices to be used for any installation, replacement, relocation
or removal of any equipment on the Tower and/or on the Premises. Upon completion
of any installation, relocation or removal of equipment by Tenant which is
subject to paragraph (e) above, Tenant shall promptly notify Landlord in
writing. Thereupon, Landlord, at its option, may inspect the installation,
removal or relocation of equipment to assure that it has been performed as
required by this paragraph (f) and if Landlord shall determine that the work has
not been so performed, Tenant shall remove and correct such work to the extent
and in the manner required by Landlord. Upon its failure to do so within five
days of written notification from Landlord, Landlord may remove and correct such
work, and Tenant shall, when invoiced, reimburse Landlord for all reasonable
costs and expenses thereof.
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(j) Replacement Equipment. Tenant, subject to the other provisions
of this Lease, may replace its antenna and/or transmission line within the
Antenna Space as long as the replacement antenna and the replacement
transmission line, cumulatively, do not have a greater wind and weight load than
do the original antenna and transmission line, unless prior approval has been
received from Landlord, which consent shall not be unreasonably withheld.
(k) Permitted Uses; Nuisances. Tenant shall use the Leased Premises
exclusively for its Station KWBQ-TV television Channel 19 broadcast activities
or digital broadcasting as contemplated hereby of a channel allotted to Tenant
by the FCC and shall not engage in the transmission of any other services
therefrom. Tenant shall not maintain, commit or permit any nuisance or unsafe
condition. If Tenant, upon five days' notice from Landlord, shall fail to remedy
any such nuisance or unsafe condition, Landlord may do the same, and Tenant
shall, when invoiced, reimburse Landlord for the costs and expenses thereof.
(l) Necessary Permits. Tenant, at its own cost and expense, shall
obtain and maintain in effect any and all permits, licenses and approvals that
may be required with respect to Tenant's equipment or activities by each
governmental authority having jurisdiction.
(m) Purchase Money Equipment Liens. Landlord acknowledges that
Tenant may finance the purchase of Tenant's equipment installed on the Tower and
Landlord agrees to subordinate any liens it may have to Tenant's equipment or
bank lenders with a security interest in the equipment, provided that such
lenders agree to indemnify and hold Landlord harmless from and against any loss,
liability, cost or expense resulting from removal of Tenant's equipment from the
Tower or other exercise of such lenders' rights and further agree that any
removal of Tenant's equipment from the Tower shall be performed by qualified
personnel in accordance with sound engineering practices.
ARTICLE V
TOWER MAINTENANCE AND REPAIR
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During the term of this Lease and in accordance with and subject to the
provisions of Article XIV as applicable, Landlord will (1) maintain the Tower so
as to comply with existing rules and regulations imposed by any governmental
authority having jurisdiction over its operation, and make any repairs and
modifications reasonably necessary to maintain the same in good condition and in
compliance with good broadcast engineering practices, and (2) maintain the
Transmitter Building (but not the interior portions of Tenant's Space) so as to
comply with existing rules and regulations imposed by any governmental authority
having jurisdiction over the ownership or operation of the same and make any
repairs and modifications reasonably necessary to maintain the same in good
condition and in compliance with good broadcast engineering practice. Tenant
shall reimburse Landlord, when invoiced by Landlord, for Tenant's Proportional
Share of maintaining the Premises (including the access road thereto), Tower and
Transmitter Building. Further, Tenant shall reimburse Landlord, when invoiced by
Landlord and presented with reasonable documentation therefor, for the cost of
any repairs or modifications occasioned by (i) the negligence of Tenant, its
agents, servants, employees, contractors or invitees; (ii) a defect or
malfunction in, or problem with, Tenant's system, equipment or any attachments
thereto; (iii) any safety hazard or violation of any applicable statute, rule,
regulation, order, directive or standard relating to, in or caused by Tenant's
system, equipment or any attachment thereto; (iv) changes or improvements to the
Tower or the Leased Premises requested in writing by Tenant, to the extent not
paid directly by Tenant; or (v) any violation or breach of any provision of this
Lease by Tenant or anyone acting under Tenant.
In the performance of its obligation to maintain and repair the Tower,
and to allow other tenants to install, remove, relocate, maintain and repair
their equipment, it may be necessary from time to time for Landlord to request
that Tenant temporarily cease transmission and broadcasting activities, to turn
off electrical power and/or to make other adjustments to its equipment and
operations. Landlord agrees, except in the case of emergencies, to give Tenant
24 hours' notice of such disruptions and to schedule and complete such work so
far as reasonably possible between 1:00 a.m. to 5:00 a.m., and Landlord will not
cause any interruption of Tenant's transmission and broadcasting activities
under this provision unless such interruption to Tenant's operations is required
by and consistent with good engineering practices. Landlord shall promptly and
diligently seek to remedy any condition requiring interruption of Tenant's
broadcasting and transmission activities. Tenant agrees to cooperate with
Landlord and to comply with and honor Landlord's reasonable requests for
temporary cessation of transmission and broadcasting activities, to turn off
electrical power and/or to make other adjustments to its equipment or operation,
as necessary, to allow for orderly performance and carrying out of such work.
Notwithstanding any other provision of this Lease, Landlord shall abate Tenant's
Rent hereunder pro rata for any period of twenty-four hours that Tenant is
unable to broadcast its television signal and Landlord has not provided
"back-up" transmission capability. Tenant may terminate this Lease at any time
that it has been unable to transmit its television signal from the Tower for a
period of thirty (30) consecutive days, unless such inability is caused by
damage to or failure of Tenant's equipment. Tenant acknowledges that it is aware
that the safety of workers is of paramount concern in deciding the time when
Tenant must temporarily cease operations. Tenant agrees to abide by any work
rules or procedures for personnel access to the Tower which may be required by
Landlord for compliance with the policies and rules of the FCC. Landlord agrees
to abide by any work rules or procedures for personnel access to the Tower which
may be required by Tenant for compliance with the policies and rules of the FCC.
In the event Tenant fails to cooperate with Landlord and refuses to temporarily
cease operation,
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Landlord shall have the right to turn off the electric power to Tenant's
equipment as required to perform and carry out such work.
Landlord shall use its best efforts to secure the cooperation of all
tenants on the Tower to comply with and honor Landlord's reasonable requests for
temporary cessation of transmission and broadcasting activities, to turn off
electrical power and/or to make other adjustments to their equipment or
operations, as necessary, to allow for orderly performance and carrying out of
the installation, removal, maintenance and repair of Tenant's equipment and to
abide by any work rules or procedures for personnel access to the Tower which
may be required for compliance with the policies and rules of the FCC.
ARTICLE VI
INDEMNITY AND INSURANCE
(a) Indemnification by Tenant. Tenant hereby assumes all risk of and
responsibility for, and agrees to defend, indemnify and hold harmless Landlord,
its officers, directors, members, servants, employees and agents from and
against any and all claims, demands, suits and proceedings made or commenced by
any party against any of the foregoing, for loss of life, personal injury, loss
or damage to property or any and all other damages or loss caused by (i) the use
of the Tower, the Transmitter Building or the Premises by Tenant, its officers,
directors, members, agents, servants, employees or invitees, or (ii) the
performance by or carrying out by Tenant of any of the terms and conditions
hereof, or (iii) the failure of Tenant to perform any term, covenant or
condition required to be performed by Tenant hereunder, or (iv) any damage or
injury that may occur as a result of any unsafe condition, or of any negligent
installation or maintenance of Tenant's equipment to the extent such condition
or installation or maintenance is the responsibility of Tenant hereunder, or (v)
failure by Tenant to comply with any applicable statute, rule, regulation, order
or other standard pertaining to the use or installation of Tenant's equipment or
(vi) the overlap, if any, of aperture of Tenant's equipment with that of any
other tenant on the tower, and any radiation levels which are violative, or in
the future may be violative, of the applicable rules, regulations or policies of
the FCC or other regulatory agency caused by Tenant's equipment or the location
thereof on the Tower; and in all events from and against any and all judgments,
recoveries, settlements, costs, expenses and losses that may be incurred by any
indemnified party as a result of any such claim, demand, suit or proceeding,
including, but not limited to, reasonable attorneys' fees, court costs and
expenses incurred in responding to defending any such claim, demand, suit or
proceeding. Tenant hereby waives, to the furthest extent provided by law, any
immunity or limited liability to which it may be entitled under applicable
workers' compensation laws with respect to loss or injury to its own employees.
If any suit or proceeding shall be instituted against Landlord for which
indemnification would be required under the provisions of this Article, Landlord
shall, with reasonable promptness, give written notice of same to Tenant.
Subject always to Tenant's demonstration to Landlord's reasonable satisfaction
of Tenant's continuing financial capacity to respond to any resulting indemnity
obligations hereunder, Tenant shall have the right (but not the obligation) to
assume the defense of the case at Tenant's sole and separate expense; provided,
however, that, at Landlord's
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expense, Landlord shall be entitled to designate counsel of its choosing to
associate with Tenant's counsel in the defense of said proceeding. Landlord
shall cooperate fully in all respects with the Tenant in any defense, compromise
or settlement, including, without limitation, providing Tenant with all
pertinent information under the control of Landlord. If after such notice Tenant
does not assume control of such defense, Landlord shall conduct such defense and
Tenant shall be kept informed and be consulted by Landlord with respect to the
litigation but shall be bound by the results obtained by Landlord insofar as the
claim against Landlord is concerned. Landlord shall provide Tenant with timely
notice of Landlord's intention to settle any claim, and Tenant shall have the
right to approve or withhold approval of any such settlement. If Landlord fails
to obtain Tenant's prior written consent to any such settlement, Landlord shall
be deemed to have released Tenant from its obligation to indemnify Landlord with
respect to such claim.
(b) Indemnification by Landlord. Except as provided in Articles VII
and XXII of this Lease, Landlord hereby assumes all risk of and responsibility
for and agrees to indemnify and hold harmless Tenant, its officers, directors,
members, employees and agents from and against any and all losses, and all
claims, demands, suits and proceedings made or commenced by any third party
against any of the foregoing, for loss of life, personal injury, loss or damage
to property or other damage caused by (i) the negligence or intentional act(s)
or omission(s) of Landlord or its agents, servants or employees arising in the
course of the performance by this Lease; (ii) the failure of Landlord to perform
any material term, covenant or condition required to be performed by Landlord
hereunder or (iii) the breach of any warranty by Landlord herein, and in such
events from and against any and all judgments, recoveries, settlements,
reasonable costs and expenses and losses that may be incurred by any indemnified
party as a result of any such claim, demand, suit or proceeding, including but
not limited to reasonable attorneys' fees, court costs and expenses incurred in
responding to or defending any such claim, demand, suit or proceeding.
Notwithstanding the foregoing, Landlord shall not be liable for consequential
damages, including without limit lost revenues from Tenant's inability to
transmit or broadcast.
If any suit or proceeding shall be instituted against Tenant for which
indemnification would be required under the provisions of this Section VI(b),
Tenant shall, with reasonable promptness, give written notice of same to
Landlord. Landlord shall have the right (but not the obligation) to assume the
defense of the case at Landlord's sole and separate expense; provided, however,
that, at Tenant's expense, Tenant shall be entitled to designate counsel of its
choosing to associate with Landlord's counsel in the defense of said proceeding.
Tenant shall cooperate fully in all respects with the Landlord in any defense,
compromise or settlement, including, without limitation, providing Landlord with
all pertinent information under the control of Tenant. If after such notice
Landlord does not assume control of such defense, Tenant shall conduct such
defense and Landlord shall be kept informed and be consulted by Tenant with
respect to the litigation but shall be bound by the results obtained by Tenant
insofar as the claim against Landlord is concerned. Tenant shall provide
Landlord with timely notice of Tenant's intention to settle any claim, and
Landlord shall have the right to approve or withhold approval of any such
proposed settlement. If Tenant fails to obtain Landlord's prior written consent
to any such settlement, Tenant shall be deemed to have released Landlord from
its obligation to indemnify Tenant with respect to such claim.
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(c) Workers' Compensation Insurance. Before commencing any
installation, maintenance work or removal on the Premises, Tenant shall procure
and thereafter maintain at Tenant's expense, worker compensation insurance
coverage with a responsible insurance company, qualified to do business in New
Mexico, reasonably satisfactory to Landlord. Said insurance shall provide for
the payment of compensation in accordance with the laws of the State of New
Mexico for all workers hired or employees employed by Tenant or its contractors
or subcontractors, and shall further insure Landlord against any and all
liability for personal injury or death for such workers and employees. Prior to
the commencement of any such installation, maintenance, work or removal, Tenant
shall provide Landlord with a certificate of insurance, which certificate shall
contain a provision for 30 days prior written notice to Landlord of any
cancellation or change.
(d) Tenant's Liability Insurance. Tenant shall procure and maintain,
at Tenant's expense, throughout the term, a policy or policies of comprehensive
general liability insurance, with contract liability coverage, with respect to
all of Tenant's operations and activities on the Premises, including but not
limited to operations of contractors and the operation of vehicles and equipment
and negligence of Tenant, and naming Landlord and Tenant as co-insured, with
premium thereon being fully paid in advance, issued by and binding upon a
responsible insurance company qualified to do business in the State of New
Mexico and reasonably satisfactory to Landlord. Such insurance shall afford
minimum protection of not less than $2,500,000 with respect to personal injury
or death to any one person, of not less than $10,000,000 for injury or death for
two or more persons, and not less than $5,000,000 for property damage. Each of
the foregoing limitations shall be for each occurrence and shall not be an
aggregate limit under the policy. Tenant shall obtain such additional insurance
and/or increase the foregoing limits as Landlord may, from time to time,
reasonably require by written notice. Tenant shall also cause any contractors or
subcontractors performing any work on the Tenant's equipment and/or making
repairs or changes thereto, or otherwise performing work on behalf of the
Tenant, to procure comprehensive public liability insurance complying with this
paragraph and Article IV(e), if applicable. Prior to any use or occupancy of the
Leased Premises including but not limited to performance of any work on the
Leased Premises and thereafter prior to the expiration of any applicable policy
or the performance of any work, Tenant shall give Landlord a certificate of
insurance for each insurance policy required in this subsection and said
insurance certificate shall contain a provision for 30 days prior written notice
to Landlord of any cancellation or change.
(e) Landlord's Rights to Procure Liability Insurance. If Tenant
shall fail to procure or maintain the insurance policies required in this
Article or shall fail to cause its contractors or subcontractors to procure and
maintain such insurance policies, Landlord may, but it shall not be obligated
to, procure and maintain such insurance policies, and Landlord may, but it shall
not be obligated to, procure and maintain such policies at Tenant's expense. Any
amounts paid by Landlord for such insurance shall be paid by Tenant to Landlord
when invoiced.
(f) Limitation. Nothing in this Article shall be deemed to impair,
decrease, modify or otherwise affect the obligations of any party under any
other provision of this Lease Agreement.
ARTICLE VII
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RISK OF LOSS; LOSS OF USE
Except as otherwise provided in this Agreement, Tenant shall have the
full risk of loss from any and all causes for all of its equipment located or
installed in, on or around the Leased Premises. Except as otherwise provided in
this Agreement or in the case of Landlord's gross negligence or intentional
misconduct, Landlord shall have no responsibility and shall not be liable for
damage or destruction thereto, or for losses resulting from any such damage or
destruction.
Except as otherwise provided in this Agreement or in the case of
Landlord's gross negligence or intentional misconduct, Landlord shall not be
liable to Tenant or anyone claiming under or through Tenant for any loss or
damage caused by the acts or omissions of any other tenants of the Premises or
the malfunctioning or interruption of any service, utility, facility or
installation supplied by Landlord or any other party.
IN NO EVENT SHALL LANDLORD BE LIABLE FOR CONSEQUENTIAL DAMAGES,
INCLUDING BUT NOT LIMITED TO LOST REVENUES RESULTING FROM TENANT'S INABILITY TO
TRANSMIT OR BROADCAST, UNDER ANY CIRCUMSTANCES, AND TENANT FOR ITSELF, ITS
SUCCESSORS AND ASSIGNS HEREBY EXPRESSLY WAIVES ALL SUCH CLAIMS OF CONSEQUENTIAL
DAMAGES WITH RESPECT TO THIS LEASE, THE LEASED PREMISES OR ANY PART THEREOF, OR
TENANTS OPERATIONS HEREUNDER, AND HEREBY EXPRESSLY RELEASES, RELIEVES AND
DISCHARGES LANDLORD OF AND FROM ANY SUCH CLAIMS.
Landlord shall procure replacement cost fire and extended coverage
insurance with respect to the Transmitter Building. Such policy shall provide
for such deductibles, endorsements or other features as a qualified insurance
advisor (which may be Landlord's regular insurance advisor) selected by Landlord
shall recommend. Landlord shall invoice each tenant, including Tenant hereunder,
its proportionate share of such insurance in accordance with the proportions
established in Article III. Landlord shall be designated as sole loss payee and
insurance trustee in connection with any such insurance policy, and Landlord
shall have the right to expend all or any portion of such proceeds in the
repair, reconstruction or replacement of the Transmitter Building in accordance
with Article VIII(b) hereof.
ARTICLE VIII
DESTRUCTION OR DAMAGE TO LEASED PREMISES
(a) Damage to Premises. If the Tower or the Transmitter Building
shall, with or without fault of the Landlord, by any cause be totally or
partially destroyed or damaged so as to cause total termination of broadcasting,
this Lease shall remain in force and effect, except that Tenant's obligation to
pay rent shall cease at the time of such termination of broadcasting and shall
not resume again until such time as Tenant is notified by Landlord that Tenant
may resume Tenant's broadcasting activities. Landlord shall repair, reconstruct
or replace the destruction or damage to the extent necessary to allow
broadcasting as soon as reasonably possible. Subject to Landlord's
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prior approval, such approval not to be unreasonably withheld or delayed, Tenant
shall have the right to install temporary transmission facilities prior to such
time.
Within 30 days after any damage to or destruction of the Tower and/or
Transmitter Building, Landlord shall notify Tenant whether it intends to
reconstruct, repair or replace the Tower and/or Transmitter Building. If
Landlord elects not to reconstruct, repair or replace the Tower and/or
Transmitter Building, this Lease shall terminate upon the giving of such notice
without further liability to either party. If Landlord elects to reconstruct,
repair or replace the Tower and/or Transmitter Building, Landlord shall
reconstruct, repair or replace the Tower within 90 days after notice to Tenant
of such election putting the Tower and Transmitter Building in such condition as
will comply with all of the terms and conditions of this Lease, provided that in
no event shall Landlord be responsible for any delay which may result from
governmental regulations, inability to obtain labor or materials or any other
cause beyond Landlord's reasonable control.
(b) Insurance Proceeds. The proceeds of any insurance which may be
collected by Landlord on account of any such damage or destruction shall be the
sole property of the Landlord, except for recovery for property of Tenant, in
which case, the proceeds shall be the sole property of Tenant.
ARTICLE IX
DEFAULT
(a) Lien or Encumbrance. It shall be the responsibility and
obligation of Tenant to pay all taxes imposed upon, or assessed with respect to,
Tenant's equipment including its antenna and transmission lines on the Tower and
its interest in the Transmitter Building. Tenant shall not allow any lien or
encumbrance to be placed against Landlord's property or the Transmitter Building
for failure to pay such tax or for failure to pay any other debt finally
resolved in judicial proceedings to be due, whether or not such person be a
taxing authority or other creditor. Tenant, at its expense, promptly shall take
all action necessary to obtain the release of any lien or encumbrance in such
circumstances. Any such claim or taxes may be contested in good faith if and so
long as Tenant shall post a bond against such tax lien or claim in form and from
a surety acceptable to Landlord and enforcement of such claim or taxes or loss
or forfeiture of Tenant to comply with this Article IX(a) may be declared a
default under this Lease by Landlord. Upon the occurrence and continuation of a
violation by Tenant under the provision of this Article IX(a), Landlord, in its
sole and absolute discretion, after giving not less than seven days written
notice to Tenant, shall have the right to pay any such tax, lien or incumbrance
on Landlord's property or upon the Transmitter Building, and any amounts so paid
by Landlord together with any reasonable expenses, including attorneys' fees,
incurred by Landlord in connection therewith shall be reimbursed by Tenant on
demand.
(b) Default Reentry. If Tenants fails to pay any rental or other
payment due hereunder when due within seven days after the date that notice of
such payment default is sent to Tenant, or Tenant fails to perform any of the
other terms, conditions or covenants of this Lease to be observed or performed
by Tenant for more than 30 days after notice of such other default shall be
received or delivery refused by Tenant, provided that if such default cannot
reasonably be cured within 30 days
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and Tenant is pursuing a cure with diligence, such cure period shall be 60 days,
or if Tenant suffers this Lease to be taken under any writ of execution or
otherwise, then Landlord, besides other rights or remedies it may have, shall
have the immediate right (i) to terminate this Lease or reenter and attempt to
relet without terminating this Lease and (ii) in either such event, to remove
all persons and property from the Leased Premises and such property may be
removed and stored in a public warehouse or elsewhere at the cost of the Tenant,
all without service of notice or resort to legal process and without being
deemed guilty of trespass, or becoming liable for any loss or damage which may
be occasioned thereby.
(c) Application of Rent Deficiency. If Landlord, without terminating
this Lease, either (i) elects to reenter and attempts to relet, or (ii) takes
possession pursuant to legal proceedings, or (iii) takes possession pursuant to
any notice provided by law, then it may, from time to time make such alterations
and repairs as may be necessary in order to relet the Leased Premises or any
part thereof for such term or terms (which may be for a lesser or greater term
than the term of this Lease) and at such rental or rentals and upon such other
terms and conditions as Landlord in its sole discretion may deem advisable. Upon
each such reletting, all rentals received by Landlord for such reletting shall
be applied, first, to the payment of any indebtedness other than rent due
hereunder from Tenant to Landlord; second, to the payment of any costs and
expenses of recovering the Leased Premises and reletting the same, including
brokerage fees and reasonable attorneys' fees; third, to the payment of rent due
and unpaid hereunder, and the residue, if any, shall be held by Landlord and
applied to payment of future rent as the same may become due and payable
hereunder. If such rentals received from such reletting during any month are
less than that to be paid during that month by Tenant hereunder, Tenant shall
pay any such deficiency to Landlord. Such deficiency shall be calculated and
paid monthly when invoiced. No such reentry or taking possession of the Leased
Premises by Landlord shall be construed as an election on its part to terminate
this Lease unless a notice of such intention be given to Tenant or unless the
termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous breach. Should
Landlord at any time terminate this Lease for any breach, in addition to any
other remedies it may have, it may recover from Tenant all damages it may incur
by reason of such breach, including the cost of recovering the Leased Premises,
reasonable attorneys' fees and the excess, if any, at the time of such
termination of the amount of rent and charges equivalent to rent reserved in
this Lease, discounted to present value, for the remainder of the stated term
over the then reasonable rental value of the Leased Premises for the remainder
of the stated term, all of which amounts shall be immediately due and payable
from Tenant to Landlord.
(d) Expense Reimbursement. In addition to any other remedies
Landlord may have at law or in equity and/or under this Lease, in the event an
action for damages, specific performance or other relief shall be instituted by
either party, in or out of bankruptcy, and Landlord is the prevailing party in
such action, in whole or in part, Landlord shall be entitled to and Tenant shall
pay upon demand all Landlord's reasonable costs, charges and expenses, including
but not limited to fees of counsel, agents and others retained by Landlord,
incurred by Landlord in connection with any such actions.
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In addition to any other remedies Tenant may have at law or in equity
and/or under this Lease, in the event of an action for damages, specific
performance or other relief shall be instituted by either party, in or out of
bankruptcy, and Tenant is the prevailing party in such action, in whole or in
part, Tenant shall be entitled to and Landlord shall pay upon demand all
Tenant's reasonable costs, charges and expenses, including but not limited to
fees of counsel, agents and others retained by Tenant in connection with any
such actions.
(e) Bankruptcy, Insolvency. Subject to the provisions of all
applicable law, if Tenant shall become bankrupt, file any debtor proceedings or
take or have taken against Tenant in any court pursuant to any statute either of
the United States or of any state, a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of Tenant's property, which in the case of any involuntary proceeding
against Tenant that is not dismissed within 90 days, or if Tenant makes an
assignment for the benefit of creditors, or petitions for or enters into an
arrangement, then and in that event, this Lease shall at the option of Landlord
be cancelled and terminated and any party claiming on behalf of Tenant shall not
have any rights whatsoever under this Lease. In the event this Lease has been
assigned to a successor Tenant in accordance with Article XV hereof, the term
"Tenant" in this section (e) shall include only the Tenant under the most recent
of such assignments.
(f) No Waiver. No waiver of any covenant or condition or the breach
of any covenant or condition of this Lease shall be taken to constitute a waiver
of any subsequent breach of such covenant, nor shall the acceptance of rent by
Landlord at any time when Tenant is in default under any covenant or condition
hereof, be construed as a waiver of such default or of Landlord's right to
terminate this Lease on account of such default.
(g) Cumulative Remedies. The rights and remedies given to Landlord
by this Lease shall be deemed to be cumulative and no one of such rights and
remedies shall be exclusive at law or in equity of the rights and remedies which
Landlord might otherwise have by virtue of a default under this Lease, and the
exercise of one such right or remedy by Landlord shall not impair Landlord's
standing to exercise any other right or remedy.
(h) Landlord's Lien. Tenant hereby grants to Landlord, and Landlord
shall have, a landlord's lien on Tenant's equipment (or in the case of equipment
leased by Tenant, on Tenant's interest in the equipment) to secure payment of
all amounts due hereunder. Unless Landlord waives its lien in writing, Landlord
shall be entitled to possession, foreclosure, sale and all other remedies
provided by law in connection with such lien. However, in furtherance of such
rights or following waiver of those rights, Landlord may require Tenant to
remove its equipment within 30 days after termination of this Lease. Equipment
not so removed shall be deemed abandoned and shall become the property of
Landlord.
(i) Leasehold Mortgage. Landlord shall permit Tenant's lender and
Tenant to enter into and record a leasehold mortgage or similar interest with
the lender as mortgagor, on customary terms and conditions reasonably acceptable
to Landlord.
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ARTICLE X
RIGHT OF QUIET ENJOYMENT
Except as Tenant encounters interference as described at Article XIII
hereof, over which Landlord has no immediate control, Landlord covenants Tenant
shall be placed in possession of the Leased Premises at the commencement of the
term of this Lease, and that during such term, and any renewal thereof, Tenant
paying the herein stipulated rental and performing all of the terms and
provisions of this Lease Agreement shall peaceably hold and enjoy the Premises
without hindrance or interruption by Landlord, except that Landlord shall have
the right to enter upon the Leased Premises at all reasonable times for the
purpose of inspecting same or showing for sale or reletting or effecting new
construction or installations, repairs and replacements.
ARTICLE XI
CONDEMNATION AND DISMANTLING
(a) Condemnation. If the Leased Premises, or any part or portion
thereof, are condemned, or taken, or ordered dismantled, by any governmental
authority, agency or entity having the power of eminent domain or condemnation,
or other power to order dismantling, so as to make unusable the transmission
facilities used by Tenant, and if, in the case of a taking of less than all of
the Landlord's Premises, within 30 days after possession is taken by such
condemning authority, Landlord does not notify Tenant of Landlord's election to
restore the remaining portions of the Leased Premises so as to permit Tenant's
transmission facilities to be returned to usefulness within one year, then this
Lease shall terminate from the time possession is taken by the condemning
authority, or dismantling is begun, as the case may be, and Tenant shall have no
obligation for the payment of rent hereunder for any period after Tenant's
transmission facilities become unusable, except that any rent which has accrued
during any period prior thereto which is not yet fully paid shall become
immediately due and payable in full.
(b) Condemnation Award. With respect to the condemnation of all or
any portion of the Leased Premises, Tenant shall not be entitled, and hereby
waives any right, to share or participate in any condemnation award received by
Landlord or any holder or holders of mortgages, deeds of trust, fee simple
interests or other property interests in the Leased Premises. Unless Landlord
shall elect to restore the Leased Premises as provided in paragraph (a) hereof,
any condemnation award received by Tenant with respect to its interest in the
Transmitter Building shall belong to Tenant. If Landlord shall elect to so
restore, then such award shall be made available to Landlord to pay for the
costs of such restoration. If Landlord concludes, in Landlord's sole judgment
and discretion, that the sum of all condemnation awards turned over to Landlord
as provided above will be insufficient to complete such restoration, Landlord
shall assess each tenant its Proportionate Share (determined in accordance with
Article III) of the shortfall. Tenant shall pay such amounts to Landlord when
and as invoiced. Landlord shall have the right, but not the obligation, to defer
performance of any restoration work pending receipt of payment of such
assessment by tenants.
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(c) Modification of Lease Premises. Should any governmental
authority to order or direct Landlord to make any alteration of the Leased
Premises, any delay, disruption or hindrance caused to Tenant, its broadcasting,
transmission or business, occasioned thereby, shall not affect or impair
Tenant's obligation to pay Rent hereunder. Such required alterations shall be
made by Landlord as promptly as reasonably possible, provided that the costs of
any such alterations to the Transmitter Building shall be reimbursed by Tenant
for its Proportionate Share (determined in accordance with Article III), when
and as invoiced.
ARTICLE XII
REMOVAL OF EQUIPMENT
At any time during the term of this Lease, and upon expiration or
termination without default thereof, Tenant, if not in default hereunder, shall
have and is hereby granted the right to dismantle, disconnect and remove, at
Tenant's sole expense and in accordance with Article IV(e), any and all
equipment owned by Tenant which may be installed in or connected to the Tower,
the Transmitter Building, or the Premises; but such right shall not apply to
Tenant's proportionate interest in the Transmitter Building (the Tenant's Space)
which shall revert to Landlord on the expiration or earlier termination of this
Lease. If Tenant shall not have made written request of Landlord for the removal
of Tenant's equipment within 30 days from and after said expiration or
termination, such equipment and property shall be considered to be abandoned by
Tenant and become the property of Landlord. All expenses incurred by Landlord in
effecting such removal shall be paid by Tenant when invoiced.
ARTICLE XIII
INTERFERENCE
(a) Interference by Tenant. Tenant understands that Landlord intends
to grant to other tenants facilities and/or rights which are the same as, or
similar to, those granted herein to Tenant. Tenant will endeavor in good faith
to conduct its activities in accordance with sound electronic and engineering
practice and will cooperate with other tenants and potential tenants so as to
anticipate and prevent Interference. If any engineering statement is presented
to or by Landlord confirming that Tenant's broadcasting, transmitting or other
activities in or on any portion of the Leased Premises are causing Interference
to another tenant or Landlord, Tenant shall promptly and at its sole expense
correct the condition causing such Interference, provided that it shall
generally be the responsibility of a later tenant on the Tower to resolve
Interference problems with existing tenants, unless such existing tenant is not
operating in compliance with its FCC license or FCC rules and regulations.
(b) Interference to Tenant. Upon determination that any other tenant
is causing Interference with Tenant's broadcasting, transmitting or activities
in or on any portion of the Leased Premises, Landlord will reasonably exercise
all available rights and remedies to cause such other tenant to promptly correct
the condition causing such Interference.
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(c) Interference Defined. Except with regard to "Signal Degradation"
to Interference-Protected Third Parties, as used herein and throughout the
Lease, "Interference" with a transmitting activity shall mean a condition
existing which constitutes material interference within the meaning of the
provisions of the applicable rules and regulations of the FCC as determined
and/or measured by the standards of ANSI/EPA/TEA. Tenant acknowledges that the
determination of what constitutes material Interference and the appropriate
actions to be taken to correct such Interference shall be at the reasonable
discretion of Landlord acting according to customary and sound engineering
practices.
(d) Landlord shall cause all other tenant leases on the Tower to
include Interference provisions substantially similar to this Article XIII.
ARTICLE XIV
REPAIRS
(a) Action by Landlord. If circumstances occur, or threaten to
occur, from which Landlord may reasonably conclude that imminent damage is
likely to occur to the property of Tenant, of Landlord, of any other tenant or
of any other person, or that substantial threat to life or the safety of
individuals will exist, before agents of Tenant can be advised and respond,
Landlord, without notice to Tenant, may repair, maintain, deenergize, disconnect
or dismantle any or all equipment and/or lines of Tenant and take any other
reasonable action which in Landlord's discretion, may appear necessary, with
respect to the property of Tenant, or of Landlord, without any liability
whatever on the part of Landlord for any damage whatsoever which such action may
cause.
(b) Non-Emergency Repairs. In the event of need for repair or
maintenance of the Tower or Transmitter Building, and if such repairs or
maintenance are not, in the discretion of Landlord of an emergency nature, then
Landlord shall have the right, upon 10 days notification to Tenant, to undertake
such repair or maintenance at its convenience. In such cases, Landlord and
Tenant agree to try to coordinate such activities in such manner as will
minimize any interruption that may be caused to Landlord's and Tenant's
broadcast activities or to the transmission activities of any other tenants.
20
<PAGE> 21
ARTICLE XV
ASSIGNMENT
(a) By Landlord. This Lease may be assigned by Landlord.
(b) By Tenant. Without the prior written consent of Landlord, such
consent not to be unreasonably withheld or delayed, Tenant shall not assign or
sublease this Lease or any interest therein, and, except as set forth in Section
9(i) hereof, shall not encumber, hypothecate or otherwise give as security, this
Lease or any interest therein. Notwithstanding the foregoing, Tenant may assign
its rights and obligations under this Lease to any party acquiring the license
for the Station pursuant to prior FCC approval, provided that such acquiring
party agrees in writing to assume, be bound by and comply with all of the terms
and conditions of this Lease. No assignment shall be effective as against
Landlord for any purpose, unless all sums due from Tenant, together with any
costs to Landlord to cover reasonable legal and other expenses of Landlord in
connection with such assignment, shall have been paid to Landlord.
In all such assignments, Tenant shall remain primarily liable to
Landlord for fulfillment of the terms, covenants and conditions hereof, except
that such Tenant shall be released and discharged of all liability accruing
hereunder after the effective date of such release if (i) assignee as Tenant
fully and punctually performs each and all of its obligations hereunder during
the first 12 calendar months next following the effective date of such
assignment; and (ii) the financial ability and credit standing of the assignee
(together with the financial ability and credit standing of any guarantors of
such assignee's obligations hereunder), in the reasonable judgment and
discretion of Landlord, is satisfactory to Landlord.
Landlord's consent to one assignment by Tenant or acceptance of
performance from an assignee shall not be deemed a waiver of Landlord of the
restrictions of this Article XV as to subsequent attempts to assign by Tenant or
by Tenant's heirs, successors, assigns or subtenants. As used herein the terms
Landlord and Tenant shall be deemed to include their respective heirs,
successors and permitted assigns.
ARTICLE XVI
ALTERATIONS
Tenant shall not demolish, remove or modify any installations,
additions, fixtures, structures or other improvements now or hereafter attached
to the Leased Premises or any structure thereon, without the prior written
consent of Landlord, which consent as to non-structural modifications,
installations, additions or fixtures in the Tenant's Space shall not be
unreasonably withheld.
21
<PAGE> 22
ARTICLE XVII
UTILITIES
Tenant shall be responsible for furnishing and paying for all water,
fuel, air conditioning, telephone, electricity and all other utility services
directly and only utilized by it. Tenant shall install its own meter for
electrical service at the Premises.
ARTICLE XVIII
SUBORDINATION
This Lease is subject and subordinate at all times to the lien of
existing and future mortgages on the Premises and any improvements thereon.
Although no instrument or act on the part of the Tenant shall be necessary to
effectuate such subordination, the Tenant will, nevertheless, execute and
deliver such instruments subordinating this Lease to the lien of all such
mortgages as may be desired by the mortgagee, provided that in the instrument of
subordination, the mortgagee (or trustee), for itself and its successors and
assigns, agrees that, so long as Tenant shall not be in material default under
this Lease, the mortgagee (or trustee) and its successors and assigns recognize
the right of Tenant to possession under the Lease and will not disturb the
peaceful, quiet enjoyment of the demised premises by Tenant. Tenant hereby
appoints Landlord its attorney-in-fact, irrevocably, to execute and deliver any
such instrument for and in the name of Tenant. If this Lease is so subordinated,
no entry under any such mortgage or sale for the purpose of foreclosing the same
or repossessing or other action pursuant to such mortgage or other security
indenture shall be regarded as an eviction of Tenant, constructive or otherwise,
or give Tenant any rights to terminate this Lease. In any event, Tenant shall
attorn to such mortgagee or mortgagees and any assignee or purchaser therefrom.
ARTICLE XIX
SUCCESSORS
The terms, conditions and covenants contained in the Lease shall apply
to, inure to the benefit of and be binding upon, the parties hereto and their
respective successors and permitted assigns.
ARTICLE XX
NOTICES
Whenever any notice is required or permitted hereunder (other than
telephonic notices permitted hereunder), such notice shall be in writing and
shall be deemed duly given if delivered to the address of the party to be
notified or if deposited in the United States mail, postage prepaid, certified
or registered mail, return receipt requested, addressed to the party to be
notified as follows:
22
<PAGE> 23
TENANT: Tom Allen, Executive Vice President
ACME Television of New Mexico, L.L.C.
2101 East 4th Street, Suite 202
Santa Ana, California 92704
Telephone: (714) 245-9499
Telecopier: (714) 245-9494
LANDLORD: Roberts Broadcasting Company of New Mexico, L.L.C.
1408 North Kingshighway, Suite 300
St. Louis, MO 63113
Attn: Steven C. Roberts
Telephone: (314) 367-4600
Telecopier: (314) 367-0174
and shall be deemed received on the date of delivery to such address or, if
mailed, on the date delivery was accepted or refused by Tenant as evidence on
the return receipt.
Either party may change its address for delivery of notice by giving
notice of a change of address in compliance with the terms of this Article XX.
ARTICLE XXI
DELAYS
In any case in which either party hereto is required to do any act
(other than make a payment of money), delays caused by or resulting from an act
of God, war, civil commotion, fire or other casualty, labor difficulties,
general shortage of labor, materials or equipment, governmental regulations or
other causes beyond such party's reasonable control, shall not be counted in
determining the time when the performance of such act must be completed, whether
such time be designated by fixed time, a fixed period of time or a "reasonable
time". In any case where work is to be paid for out of insurance proceeds or
condemnation awards, due allowance shall be made, both to the party required to
perform such work and to the party required to make such payment, for delays and
collection of such proceeds and rewards.
ARTICLE XXII
WAIVER OF SUBROGATION
The parties hereby release each other from any and all liability for any
loss or damage caused by fire or any of the extended coverage casualties, even
if such fire or any other casualty shall be brought about by the fault or
negligence of such other party its agents, servant, employees or invitees. Each
party shall cause its fire and extended coverage policies, if any, to include a
waiver of subrogation rights.
23
<PAGE> 24
ARTICLE XXIII
CONSTRUCTION OF AGREEMENT
This Lease and the rights and obligations of the parties hereto shall be
governed by, and construed in accordance with, the laws of the State of New
Mexico applicable to agreements made and to be performed in that state. In the
event any provision of this Lease shall be held invalid or unenforceable by any
court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
ARTICLE XXIV
MODIFICATIONS
Any agreement between the parties hereto shall be ineffective in
changing, modifying or discharging this Lease in whole or in part unless such
agreement is in writing and signed by the party against who such change,
modification or discharge is sought to be enforced. This Lease supersedes any
and all prior agreements between the parties, whether written or oral, with
respect to the subject matter hereof.
ARTICLE XXV
PARAGRAPH HEADINGS
Paragraph headings used in this Lease are for convenience of the parties
only and shall in no way be used to interpret or construe the agreement of the
parties.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this agreement
as of the day and year first above written.
LANDLORD:
Roberts Broadcasting of New Mexico, L.L.C.
By: /s/ Steve Roberts
------------------------------------
Name: Steve Roberts
Title:
24
<PAGE> 25
TENANT:
ACME Television of New Mexico, L.L.C.
By: /s/ Thomas D. Allen
------------------------------------
Name: Thomas D. Allen
Title:
25
<PAGE> 1
EXHIBIT 21.0
ACME INTERMEDIATE HOLDINGS, LLC
SUBSIDIARIES
<TABLE>
<CAPTION>
Organized
Subsidiary Under Laws of
- ---------- -------------
<S> <C>
ACME Television, LLC Delaware
ACME Subsidiary Holdings II, LLC Delaware
ACME Intermediate Finance, Inc. Delaware
</TABLE>
ACME TELEVISION, LLC
SUBSIDIARIES
<TABLE>
<CAPTION>
Organized
Subsidiary Under Laws of
- ---------- -------------
<S> <C>
ACME Subsidiary Holdings III, LLC Delaware
ACME Finance Corporation Delaware
ACME Television of New Mexico, LLC Delaware
ACME Television Licenses of New Mexico, LLC Delaware
ACME Television of Oregon, LLC Delaware
ACME Television Licenses of Oregon, LLC Delaware
ACME Television of Tennessee, LLC Delaware
ACME Television Licenses of Tennessee, LLC Delaware
ACME Television of Utah, LLC Delaware
ACME Television Licenses of Utah, LLC Delaware
ACME Television of Missouri, Inc. Missouri
ACME Television Licenses of Missouri, LLC Missouri
ACME Television of Florida, LLC Delaware
ACME Television Licenses of Florida, LLC Delaware
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0001049530
<NAME> ACME Intermediate Holding, LLC
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 953
<SECURITIES> 0
<RECEIVABLES> 11,168
<ALLOWANCES> 555
<INVENTORY> 0
<CURRENT-ASSETS> 18,337
<PP&E> 18,652
<DEPRECIATION> (2,211)
<TOTAL-ASSETS> 286,845
<CURRENT-LIABILITIES> 17,557
<BONDS> 187,499
0
0
<COMMON> 0
<OTHER-SE> 58,402
<TOTAL-LIABILITY-AND-EQUITY> 286,845
<SALES> 43,928
<TOTAL-REVENUES> 43,928
<CGS> 46,727
<TOTAL-COSTS> 46,727
<OTHER-EXPENSES> 20,650
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 21,378
<INCOME-PRETAX> (23,449)
<INCOME-TAX> 2,393
<INCOME-CONTINUING> (21,056)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (21,056)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0001049510
<NAME> ACME Television, LLC
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 953
<SECURITIES> 0
<RECEIVABLES> 11,295
<ALLOWANCES> 555
<INVENTORY> 0
<CURRENT-ASSETS> 18,464
<PP&E> 18,652
<DEPRECIATION> (2,211)
<TOTAL-ASSETS> 285,377
<CURRENT-LIABILITIES> 17,557
<BONDS> 145,448
0
0
<COMMON> 0
<OTHER-SE> 92,563
<TOTAL-LIABILITY-AND-EQUITY> 285,377
<SALES> 43,928
<TOTAL-REVENUES> 43,928
<CGS> 46,727
<TOTAL-COSTS> 46,727
<OTHER-EXPENSES> 15,444
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 16,172
<INCOME-PRETAX> (18,243)
<INCOME-TAX> 2,393
<INCOME-CONTINUING> (15,850)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (15,850)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
