FCC Approval. (a) The consummation of the transactions contemplated hereby is subject to the prior consent and approval of the FCC. Buyer and Seller shall jointly file with the FCC substantially complete applications (the “Assignment Applications”) to request the FCC’s consent to the voluntary assignment of the FCC Licenses from Seller to Buyer (the “FCC Consent”) within ten (10) Business Days after the execution of this Agreement so long as Buyer has delivered the Escrow Deposit to the Escrow Agent in accordance with Section 1.4 above; provided, however, that if any FCC-imposed freeze on the filing of broadcast license assignment applications is in effect during such ten (10) Business Day period, then the Assignment Applications shall be filed not more than one (1) business day after such freeze is lifted. Buyer and Seller shall each pay its own expenses in connection with the preparation and prosecution of the Assignment Applications and shall share any filing fee(s) associated with the Assignment Applications equally. Seller and Buyer shall prosecute the Assignment Applications before the FCC, including opposing any petitions to deny filed against the Assignment Applications, with all commercially reasonable diligence, and otherwise use commercially reasonable efforts in order to obtain the FCC Consent promptly and in order to carry out the provisions of this Agreement. Each party shall promptly provide to the other party a copy of any pleading, order or other document served on them or a copy of any formal inquiry or request by the FCC or the substance of any informal FCC inquiry relating to any such FCC Application. If FCC reconsideration or review, or if judicial review shall be sought with respect to the FCC Consent by a third party or upon the FCC’s own motion, Buyer and Seller shall cooperate in opposing such requests for FCC reconsideration or review or for judicial review. (b) Except as provided in clause (c) or (d) below, each party hereto covenants and agrees to (i) prepare, file and prosecute any alternative application, petition, motion, request or other filing (including any motion for leave to withdraw or dismiss any Assignment Application filed by the parties with the FCC in connection with the transactions contemplated hereby) (the “Additional Applications”); (ii) file any amendment or modification to the FCC Applications; (iii) otherwise take any other action with respect to the FCC as may be reasonably necessary in connection with the transactions contemplated hereby; and (iv) cooperate in good faith with the other party hereto with respect to the foregoing, all as may be reasonably determined by Buyer or Seller to be necessary, appropriate or advisable in order to consummate the transactions contemplated by this Agreement in a manner and within the time period contemplated by this Agreement. (c) Each party agrees to comply with any condition imposed on it by the FCC Consent, except that no party shall be required to comply with, or consummate the transaction subject to, a condition if compliance with the condition could reasonably be expected to materially adversely effect it. If any party to this Agreement shall seek FCC reconsideration or review, or judicial review, of a materially adverse condition imposed by the FCC, the other party shall cooperate fully with the party seeking reconsideration or review of such condition; provided, however, that neither party shall seek or cause to be sought, without the prior written consent of the other party, FCC reconsideration or review, or judicial review, of any condition or qualification that is not a materially adverse condition. For purposes of this Agreement, a “materially adverse condition” shall not include any condition generally applicable to the broadcast industry or a transaction of this kind. (d) If the Closing shall not have occurred for any reason within the original effective period of any FCC Consent, and neither party shall have terminated this Agreement pursuant to its rights under Section 8.1, the parties shall jointly request an extension or extensions of the effective period of such FCC Consent. No extension of the effective period of any FCC Consent shall limit the exercise by either party of its right to terminate the Agreement under Section 8.1.
Appears in 1 contract
Sources: Asset Purchase Agreement (Fisher Communications Inc)
FCC Approval. (a) The consummation Notwithstanding anything herein or therein to the contrary, to the extent this Agreement or any other Related Transactions Document purports to grant or to require Borrower to grant to Agent a security interest in the FCC Authorizations of Borrower, Agent shall only have a security interest in such FCC Authorizations at such times and to the extent that a security interest in such FCC Authorizations is permitted under applicable law. Notwithstanding anything to the contrary set forth herein or therein, Agent agrees that to the extent prior FCC approval is required pursuant to the Communications Act for (i) the operation and effectiveness of any grant, right or remedy hereunder or under the other Related Transactions Documents or (ii) taking any action that may be taken by Agent hereunder or under the other Related Transactions Documents, such grant, right, remedy or actions will be subject to such prior FCC approval having been obtained by or in favor of Agent (and Borrower will use its best efforts to obtain any such approval as promptly as possible). Borrower agrees that, upon and during the continuance of an Event of Default and at Agent's request, Borrower shall file, or cause to be filed, such applications for approval and shall take all other and further actions required by Agent to be granted such governmental authorizations as are necessary to assign Borrower's FCC Authorizations to Agent or its successors or assigns, or to transfer ownership and control over Borrower or over any other Person holding a FCC Authorization for any Borrower Station, to Agent or its successors or assigns. To enforce the provisions of this Section 9.19, Agent is empowered to request the appointment of a receiver from any court of competent jurisdiction. Such receiver shall be instructed to seek from the FCC an involuntary transfer of control over Borrower. Borrower hereby agrees to authorize such an application for involuntary transfer of control upon the request of the transactions contemplated hereby is subject receiver so appointed and, if Borrower shall refuse to authorize such application, its authorization may be required by the prior consent court. Upon the occurrence and continuance of an Event of Default, Borrower shall further use its best efforts to assist in obtaining approval of the FCC. Buyer , if required, for any action or transactions contemplated by this Agreement or the other Related Transactions Documents, including without limitation, preparation, execution and Seller shall jointly file filing with the FCC substantially complete of the assignor's or transferor's portion of any application or applications (the “Assignment Applications”) to request the FCC’s for consent to the voluntary assignment of any FCC Authorization, or transfer of control over Borrower or any other Person holding a FCC Authorization for a Borrower Station, necessary or appropriate under the Communications Act for approval of the transfer or assignment of any portion of, the Collateral provided for herein, together with assignment of any FCC Licenses from Seller Authorization or other authorization. Borrower acknowledges that the assignment of FCC Authorizations, or transfer of control over Borrower or other Person holding a FCC Authorization for a Borrower Station, is integral to Buyer (Agent's and each Lender's realization of the “FCC Consent”) within ten (10) Business Days after the execution value of this Agreement so long as Buyer has delivered the Escrow Deposit to the Escrow Agent in accordance with Section 1.4 above; provided, howevertheir Collateral, that if any FCC-imposed freeze on the filing of broadcast license assignment applications there is in effect during such ten (10) Business Day period, then the Assignment Applications shall be filed not more than one (1) business day after such freeze is lifted. Buyer and Seller shall each pay its own expenses in connection no adequate remedy at law for failure by Borrower to comply with the preparation and prosecution of the Assignment Applications and shall share any filing fee(s) associated with the Assignment Applications equally. Seller and Buyer shall prosecute the Assignment Applications before the FCC, including opposing any petitions to deny filed against the Assignment Applications, with all commercially reasonable diligence, and otherwise use commercially reasonable efforts in order to obtain the FCC Consent promptly and in order to carry out the provisions of this Agreement. Each party shall promptly provide to Section 9.19, and that such failure would not be adequately compensable in damages, and therefore, agree that the other party a copy of any pleading, order or other document served on them or a copy of any formal inquiry or request by the FCC or the substance of any informal FCC inquiry relating to any such FCC Application. If FCC reconsideration or review, or if judicial review shall agreements contained in this Section 9.19 may be sought with respect to the FCC Consent by a third party or upon the FCC’s own motion, Buyer and Seller shall cooperate in opposing such requests for FCC reconsideration or review or for judicial reviewspecifically enforced.
(b) Except as provided Notwithstanding anything to the contrary contained in clause (c) this Agreement or (d) belowany other Related Transactions Document, each party hereto covenants and agrees neither Agent, Lender nor any Loan Party shall, without first obtaining the approval of the FCC, take any action pursuant to (i) preparethis Agreement or any other Related Transactions Document which would constitute or result in any acquisition or transfer of ownership of Borrower or its assets, file and prosecute assignment of any alternative applicationFCC Authorization or any change of control that would require, petition, motion, request or other filing under then existing law (including any motion for leave to withdraw or dismiss any Assignment Application filed by the parties with Communications Act), the FCC in connection with prior approval of the transactions contemplated hereby) (the “Additional Applications”); (ii) file any amendment or modification to the FCC Applications; (iii) otherwise take any other action with respect to the FCC as may be reasonably necessary in connection with the transactions contemplated hereby; and (iv) cooperate in good faith with the other party hereto with respect to the foregoing, all as may be reasonably determined by Buyer or Seller to be necessary, appropriate or advisable in order to consummate the transactions contemplated by this Agreement in a manner and within the time period contemplated by this AgreementFCC.
(c) Each party agrees to comply with any condition imposed on it by Agent acknowledges that, after the occurrence of an Event of Default, all requisite consents of the FCC Consentmust be obtained prior to the exercise by Agent, except that no party shall be required any receiver appointed to comply withpursuant to Section 9.19(a) hereof, or consummate the transaction subject to, any purchaser at a condition if compliance with the condition could reasonably be expected to materially adversely effect it. If any party to this Agreement shall seek FCC reconsideration public or review, or judicial review, of a materially adverse condition imposed by the FCC, the other party shall cooperate fully with the party seeking reconsideration or review of such condition; provided, however, that neither party shall seek or cause to be sought, without the prior written consent of the other party, FCC reconsideration or review, or judicial reviewprivate sale, of any condition or qualification that is not rights as a materially adverse condition. For purposes of this Agreement, a “materially adverse condition” shall not include any condition generally applicable to the broadcast industry or a transaction of this kind.
(d) If the Closing shall not have occurred for any reason within the original effective period holder of any FCC Consent, and neither party shall have terminated this Agreement pursuant to its rights under Section 8.1, the parties shall jointly request an extension or extensions of the effective period of such FCC Consent. No extension of the effective period of any FCC Consent shall limit the exercise by either party of its right to terminate the Agreement under Section 8.1Authorization.
Appears in 1 contract
FCC Approval. (a) The consummation of the transactions contemplated hereby is subject to the prior consent and approval of the FCC. Buyer Purchaser and Seller shall jointly file with the FCC substantially complete applications (the “Assignment "Applications”") to request the FCC’s 's consent to the voluntary assignment of the FCC Licenses from Seller to Buyer Purchaser (the “"FCC Consent”) "), within ten (10) Business Days business days after the execution of this Agreement so long as Buyer has delivered the Escrow Deposit to the Escrow Agent in accordance with Section 1.4 above; provided, however, that if any FCC-imposed freeze on the filing of broadcast license assignment applications is in effect during such ten (10) Business Day period, then the Assignment Applications shall be filed not more than one (1) business day after such freeze is liftedAgreement. Buyer Purchaser and Seller shall each pay its own expenses in connection with the preparation and prosecution of the Assignment Applications and shall share any filing fee(s) fee associated with the Assignment Applications equally. Seller and Buyer Purchaser shall prosecute the Assignment Applications before to the FCC, including opposing any petitions to deny filed against any of the Assignment Applications, with all commercially reasonable diligence, and otherwise use commercially reasonable efforts in order to obtain the FCC Consent promptly and in order to carry out the provisions of this Agreement. Each party shall promptly provide to the other party a copy of any pleading, order or other document served on them or a copy of any formal inquiry or request by the FCC or the substance of any informal FCC inquiry relating to any such FCC Application. If FCC reconsideration or review, or if judicial review review, shall be sought with respect to the FCC Consent Consent, by a third party or upon the FCC’s 's own motion, Buyer Purchaser and Seller shall cooperate in opposing such requests for FCC reconsideration or review or for judicial review.
(b) Except as provided in clause (c) or (d) below, each party hereto covenants and agrees to (i) prepare, file and prosecute any alternative application, petition, motion, request or other filing (including any motion for leave to withdraw or dismiss any Assignment Application filed by the parties with If the FCC in connection with the transactions contemplated hereby) (the “Additional Applications”); (ii) file Consent shall impose any amendment or modification to the FCC Applications; (iii) otherwise take condition upon any other action with respect to the FCC as may be reasonably necessary in connection with the transactions contemplated hereby; and (iv) cooperate in good faith with the other party hereto with respect to the foregoinghereto, all as may be reasonably determined by Buyer or Seller to be necessary, appropriate or advisable in order to consummate the transactions contemplated by this Agreement in a manner and within the time period contemplated by this Agreement.
(c) Each such party agrees shall use its best efforts to comply with any condition imposed on it by the FCC Consent, except that no party shall be required to comply with, or consummate the transaction subject to, a condition if compliance with the condition could reasonably be expected to materially adversely effect itsuch condition. If any party to this Agreement shall seek FCC reconsideration or review, or judicial review, of a materially adverse condition imposed by the FCC, the other party shall cooperate fully with the party seeking reconsideration or review of such condition; provided, however, that neither party shall seek or cause to be sought, without the prior written consent of the other party, FCC reconsideration or review, or judicial review, of any condition or qualification that is not a materially adverse condition. For purposes of this Agreement, a “"materially adverse condition” " shall not include (i) any condition generally applicable to the broadcast industry or a transaction of this kind.
, (dii) If the Closing shall not have occurred for any reason within the original effective period condition imposed as a result of any FCC Consentact or failure to act by Purchaser, and neither party shall have terminated this or (iii) any condition imposed as a result of Purchaser's entry into any Other TV Acquisition Agreement pursuant (including but not limited to its rights under Section 8.1, the parties shall jointly request an extension a requirement that Purchaser divest KVVV or extensions of the effective period of such FCC Consent. No extension of the effective period of any FCC Consent shall limit the exercise by either party of its right to terminate the Agreement under Section 8.1another television station).
Appears in 1 contract
Sources: Asset Purchase Agreement (Valuevision International Inc)
FCC Approval. (a) The consummation of the transactions contemplated hereby is subject to the prior consent and approval of the FCC. Buyer and Seller shall jointly file with the FCC substantially complete one or more applications (the “Assignment FCC Applications”) to request the FCC’s requesting (i) FCC consent to the voluntary assignment of the FCC Licenses from Seller to Buyer and (ii) to the “extent necessary, the Waiver (to be prepared by Buyer for Buyer’s portion of the FCC Consent”Applications) within ten (10) Business Days after the execution of this Agreement so long as Buyer has delivered the Escrow Deposit Agreement. FCC consent to the Escrow Agent in accordance FCC Applications with Section 1.4 above; providedrespect to the FCC Licenses and grant of the Waiver, howevereach without any material adverse conditions other than those of general applicability, that if any FCC-imposed freeze on are referred to collectively herein as the filing of broadcast license assignment applications is in effect during such ten (10) Business Day period, then the Assignment Applications shall be filed not more than one (1) business day after such freeze is lifted. “FCC Consent.” Buyer and Seller shall each pay its own expenses in connection with the preparation and prosecution of the Assignment FCC Applications and shall share any filing fee(s) associated with the Assignment FCC Applications equally; provided, however, that neither Buyer nor Seller shall be required to pay consideration to any third party to obtain FCC Consent, except as contemplated in this Section 5.1(a). Seller and Buyer shall diligently prosecute the Assignment FCC Applications before the FCC, including opposing any petitions to deny filed against the Assignment Applications, with all commercially reasonable diligence, and otherwise use commercially reasonable efforts in order FCC Applications to obtain the FCC Consent promptly and in order extent that any such petition or objection relates to carry out the provisions of this Agreementsuch party. Each party shall promptly provide to the other party a copy of any pleading, order or other document served on them or a copy of any formal inquiry or request by the FCC or the substance of any informal FCC inquiry relating to any such FCC Application. If FCC reconsideration or reviewOther than as contemplated herein, neither Buyer nor Seller shall take any intentional action that would, or if judicial review shall intentionally fail to take such action the failure of which to take would, reasonably be sought with respect expected to have the effect of materially delaying the receipt of the FCC Consent by a third party or upon Consent. Without limiting the FCC’s own motionforegoing, Buyer and Seller shall cooperate not enter into or commit to become a party to any local marketing agreement, time brokerage agreement, joint sales agreement, shared services agreement, management services agreement, news sharing agreement or other similar Contract with any broadcast television station in opposing such requests for FCC reconsideration or review or for judicial reviewthe Market prior to Closing.
(b) Except as provided If required by the FCC staff, Seller agrees that, to the extent reasonably necessary to expedite the grant of the FCC Application with respect to each Station, Seller shall enter into customary tolling, assignment and assumption or similar agreements with the FCC to extend the statute of limitations for the FCC to determine or impose a forfeiture penalty against such Station in clause connection with (i) any pending complaints that such Station aired programming that contained obscene, indecent or profane material or (ii) any other enforcement matters against such Station with respect to which the FCC may permit Seller to enter into a tolling, assignment or assumption agreement; provided, that Seller shall not be required to enter into any escrow agreement or otherwise agree to fund any escrow. Buyer and Seller shall consult in good faith with each other prior to Seller entering into any such tolling, assignment or assumption agreement under this Section 5.1(b).
(c) Without limiting the provisions of Section 5.1(a) or (d) belowSection 5.1(b), each party hereto covenants and agrees to use commercially reasonable efforts to eliminate impediments and to obtain all necessary consents under the Communications Act that may be required by the FCC or any other Governmental Authority having competent jurisdiction so as to enable the parties to consummate the transactions contemplated hereunder as promptly as practicable, including (i) preparefiling amendments or modifications of the FCC Applications, file and prosecute any alternative application, petition, motion, request or other filing (including any motion for leave to withdraw or dismiss any Assignment Application filed as may be requested by the parties with the FCC in connection with the transactions contemplated hereby) (the “Additional Applications”); FCC, (ii) file any amendment or modification to the FCC Applications; (iii) otherwise take any taking such other action actions with respect to the FCC as may be reasonably necessary in connection with the transactions contemplated hereby; and (iv) cooperate in good faith with the other party hereto with respect to the foregoing, all as may be reasonably determined by Buyer or Seller to be necessary, appropriate or advisable in order to consummate the transactions contemplated by this Agreement in a manner and within the time period contemplated by this Agreement.
(c) Each party agrees to comply with any condition imposed on it by the FCC Consent, except that no party shall be required to comply with, or consummate the transaction subject to, a condition if compliance with the condition could reasonably be expected to materially adversely effect it. If any party to this Agreement shall seek FCC reconsideration or review, or judicial review, of a materially adverse condition imposed by the FCC, the other party shall cooperate fully with the party seeking reconsideration or review of such condition; provided, however, that neither party shall seek or cause to be sought, without the prior written consent of the other party, FCC reconsideration or review, or judicial review, of any condition or qualification that is not a materially adverse condition. For purposes of this Agreement, a “materially adverse condition” shall not include any condition generally applicable to the broadcast industry or a transaction of this kind.
(d) If the Closing shall not have occurred for any reason within the original effective period of any FCC Consent, and neither party shall have terminated this Agreement pursuant to its rights under Section 8.1, the parties shall jointly request an extension or extensions of the effective period of such FCC Consent. No extension of the effective period of any FCC Consent shall limit the exercise by either party of its right to terminate the Agreement under Section 8.1.hereby and
Appears in 1 contract
Sources: Asset Purchase Agreement
FCC Approval. (a) The consummation of the transactions contemplated hereby is subject to the prior consent and approval of the FCC. Buyer and Seller shall jointly file with the FCC substantially complete applications (the “Assignment Applications”) to request the FCC’s consent to the voluntary assignment Each of the FCC Licenses from Seller Parties shall use its reasonable best efforts to Buyer (file the “FCC Consent”) within ten (10) Business Days applications seeking the FCC Approval, with the exception of the FCC application seeking FCC approval for transfer of control of the TVCC Lease, on or before the date that is 30 days after the execution of this Agreement so long Possible Offer Announcement or such later date as Buyer has delivered the Escrow Deposit to the Escrow Agent in accordance with Section 1.4 above; provided, however, that if any FCC-imposed freeze on the filing of broadcast license assignment applications is in effect during such ten (10) Business Day period, then the Assignment Applications shall be filed not more than one (1) business day after such freeze is liftedFCC Parties may mutually agree. Buyer and Seller shall each pay its own expenses in connection with the preparation and prosecution Each of the Assignment Applications and FCC Parties shall share any filing fee(s) associated with file the Assignment Applications equallyFCC application seeking the FCC Approval for transfer of control of the TVCC Lease at such time as is determined by ▇▇▇▇▇▇▇▇▇. Seller and Buyer Each of the FCC Parties shall use its reasonable best efforts to prosecute the Assignment Applications before the FCC, including opposing any petitions to deny filed against the Assignment Applications, with all commercially reasonable diligence, FCC applications and otherwise use commercially reasonable efforts in order to obtain the FCC Consent promptly and Approvals, cooperate in order to carry out the provisions of this Agreement. Each party shall promptly provide to the other party a copy of any pleading, order or other document served on them or a copy of any formal inquiry or request providing all information requested by the FCC and take all steps reasonably necessary or the substance of any informal FCC inquiry relating appropriate to any such FCC Application. If FCC reconsideration or review, or if judicial review shall be sought with respect to the FCC Consent by a third party or upon the FCC’s own motion, Buyer and Seller shall cooperate in opposing such requests for FCC reconsideration or review or for judicial review.
(b) Except as provided in clause (c) or (d) below, each party hereto covenants and agrees to (i) prepare, file and prosecute any alternative application, petition, motion, request or other filing (including any motion for leave to withdraw or dismiss any Assignment Application filed by such applications and obtain the parties FCC Approvals in each case in accordance with the FCC terms and conditions set forth in connection with the transactions contemplated hereby) (the “Additional Applications”); (ii) file any amendment or modification this Section 8.3 and subject at all times to the terms and conditions set forth in Section 8.2. If any Person petitions the FCC Applications; (iii) to deny or otherwise take challenges the applications for the FCC Approvals or any other action with respect application filed or amended to effectuate the purposes of this Agreement, the Stock Purchase Agreement or the consummation of the Transactions, or in the event the FCC as may be reasonably necessary in connection with grants the transactions contemplated hereby; and (iv) cooperate in good faith with applications for the FCC Approvals or any other party hereto with respect application filed or amended to effectuate the foregoing, all as may be reasonably determined by Buyer or Seller to be necessary, appropriate or advisable in order to consummate the transactions contemplated by this Agreement in a manner and within the time period contemplated by purposes of this Agreement.
(c) Each party agrees , or the Stock Purchase Agreement or the consummation of the Transactions and any Person petitions for stay, review or reconsideration of such grant before the FCC, or seeks judicial stay or review of such grant, then each of the FCC Parties shall use its reasonable best efforts to comply with any condition imposed on it oppose such petition or challenge before the FCC and vigorously defend the grant of such applications by the FCC Consentdiligently and in good faith, except provided that no party the FCC Parties shall be required not have any obligation to comply withparticipate in any evidentiary hearing on any such application. Should the FCC deny any such application or grant any such application subject to material adverse conditions, or consummate each of the transaction subject to, a condition if compliance with the condition could reasonably be expected FCC Parties shall utilize its reasonable best efforts to materially adversely effect it. If any party to this Agreement shall seek FCC reconsideration or review, or judicial review, of a materially adverse condition imposed by the FCC, the other party shall cooperate fully with the party seeking secure timely reconsideration or review of such condition; provideddenial or conditions, howeverprovided that the FCC Parties shall not have any obligation to participate in any evidentiary hearing on any such denial or imposition of conditions. The FCC Parties shall give each other a reasonable opportunity to review any and all pleadings, documents, applications and other materials filed by the FCC Parties with respect to any of the foregoing prior to its filing, provided that neither party shall seek or cause to no such filing will be sought, made without the prior written consent review and approval of Harbinger, and further provided that if the Company or any of its Subsidiaries is required to be a party to such filing, the Company shall be reasonably satisfied with the factual statements therein relating to the Company or any of its Subsidiaries, as the case may be. The FCC Parties shall promptly provide to each other copies of all material communications with the FCC related to the applications for the FCC Approval and provide to each other a reasonable opportunity to contribute to and review any and all pleadings, documents, applications and other materials filed with the FCC by each other. If consummation of the Transactions referred to in Section 8.1(i) to (iv) above or otherwise contemplated by this Agreement or the Stock Purchase Agreement requires the approval of Industry Canada and other partyAuthorities in Canada including the Competition Bureau and Investment Canada, the obligations of Harbinger and the Company under this Article VIII shall apply mutatis mutandis to applications, pleadings, documents and other materials and communications required to be filed with Industry Canada. The FCC reconsideration Parties further agree that they will use their reasonable best efforts to assist in any further applications that Harbinger or review, or judicial review, of any condition or qualification that is not a materially adverse condition. For purposes of this Agreement, a “materially adverse condition” shall not include any condition generally applicable its Affiliates may make in the future with FCC and Industry Canada relating to the broadcast industry or a transaction of this kindFCC Parties.
(d) If the Closing shall not have occurred for any reason within the original effective period of any FCC Consent, and neither party shall have terminated this Agreement pursuant to its rights under Section 8.1, the parties shall jointly request an extension or extensions of the effective period of such FCC Consent. No extension of the effective period of any FCC Consent shall limit the exercise by either party of its right to terminate the Agreement under Section 8.1.
Appears in 1 contract
Sources: Master Contribution and Support Agreement (Skyterra Communications Inc)
FCC Approval. (a) The consummation Consummation of the transactions contemplated hereby Transaction is subject conditioned upon the FCC having given its consents in writing (without, in Buyer's reasonable opinion, any condition materially adverse to Buyer) to the prior consent assignment and approval change of the FCC. Buyer and Seller shall jointly file with the FCC substantially complete applications (the “Assignment Applications”) to request the FCC’s consent to the voluntary assignment of the FCC Licenses control from Seller Sellers to Buyer (the “"FCC Consent”") within ten (10) Business Days after the execution of this Agreement so long as Buyer has delivered the Escrow Deposit to the Escrow Agent in accordance with Section 1.4 above; providedall licenses, however, that if any FCC-imposed freeze on the filing of broadcast license assignment applications is in effect during such ten (10) Business Day period, then the Assignment Applications shall be filed not more than one (1) business day after such freeze is lifted. Buyer permits and Seller shall each pay its own expenses in connection with the preparation and prosecution of the Assignment Applications and shall share any filing fee(s) associated with the Assignment Applications equally. Seller and Buyer shall prosecute the Assignment Applications before the FCC, including opposing any petitions to deny filed against the Assignment Applications, with all commercially reasonable diligence, and otherwise use commercially reasonable efforts in order to obtain the FCC Consent promptly and in order to carry out the provisions of this Agreement. Each party shall promptly provide to the other party a copy of any pleading, order or other document served on them or a copy of any formal inquiry or request authorizations granted by the FCC or the substance of any informal FCC inquiry to Sellers relating to any such the operation of each of the Stations (collectively, the "FCC Application. If Licenses") and said consents having become Final FCC reconsideration or review, or if judicial review shall be sought with respect to the FCC Consent by a third party or upon the FCC’s own motion, Buyer and Seller shall cooperate in opposing such requests for FCC reconsideration or review or for judicial reviewConsent.
(b) Except as provided in clause (c) or (d) belowFor purposes of this Agreement, each party hereto covenants and agrees to (i) prepare, file and prosecute any alternative application, petition, motion, request or other filing (including any motion for leave to withdraw or dismiss any Assignment Application filed by the parties with the such FCC in connection with the transactions contemplated hereby) (the “Additional Applications”); (ii) file any amendment or modification to the FCC Applications; (iii) otherwise take any other action with respect to the FCC as may Consent shall be reasonably necessary in connection with the transactions contemplated hereby; and (iv) cooperate in good faith with the other party hereto with respect to the foregoing, all as may be reasonably determined by Buyer or Seller deemed to be necessary, appropriate or advisable in order to consummate the transactions contemplated by this Agreement in a manner Initial FCC Consent (herein so called) once it is granted and within the time period contemplated by this Agreement.
(c) Each party agrees to comply with any condition imposed on it by the FCC Consent, except that no party shall be required to comply with, or consummate the transaction subject to, a condition if compliance with the condition could reasonably be expected to materially adversely effect it. If any party to this Agreement shall seek FCC reconsideration or review, or judicial review, of a materially adverse condition imposed by the FCC, the other party shall cooperate fully with the party seeking reconsideration or review of such condition; provided, however, that neither party shall seek or cause to be sought, without the prior written consent of the other party, FCC reconsideration or review, or judicial review, of any condition or qualification that is not a materially adverse conditionpublished. For purposes of this Agreement, a “materially adverse condition” such FCC Consent shall not include be deemed to have become Final FCC Consent (herein so called) after it is granted and published and when the time for administrative or judicial review or reconsideration has expired and when the time for the filing of any protest, request for stay, petition for rehearing, reconsideration or appeal of such order of consent has expired and no protest, request for stay, petition for rehearing, reconsideration or appeal has been timely filed and is pending. Once Initial FCC Consent shall have occurred, Buyer may waive the condition generally applicable of Final FCC Consent as set forth in Section 23(o).
(c) The parties agree to proceed to file or cause to be filed all necessary applications (collectively, the "FCC Applications") requesting FCC consent to the broadcast industry Transaction on or a transaction of this kindbefore the 15th Business Day following the Go Ahead Date; provided that neither party hereto shall be liable to the other for the failure to file by said 15th Business Day if such party has proceeded with due diligence and in good faith. In no event shall the FCC Applications be filed later than 20 Business Days following the Go Ahead Date.
(d) The parties agree with each other that each of them will prosecute the FCC Applications, including all necessary amendments and supplements thereto, in good faith and with due diligence. Each party agrees that it will timely, promptly and fully respond to all matters involving the FCC Applications. If an objection to the grant of the FCC Applications is raised before the FCC by any party, or is raised by the FCC upon its own motion, then Buyer and Sellers shall each use their individual and joint best efforts to resolve such objection in a manner that will permit grant of the FCC Applications within the time period required by this Agreement; and if the said objection pertains to any portion of this Agreement, then Buyer and Sellers agree to examine the objection in good faith and to amend this Agreement to delete or otherwise modify any provision found objectionable if said can be accomplished without materially decreasing the rights or benefits of either party under this Agreement and without materially increasing the obligations or duties of either party under this Agreement.
(e) If the Closing FCC shall not have occurred consented to the Transaction within nine (9) months following the filing of the FCC Applications, then this Agreement shall be terminable by either Buyer (assuming Buyer is not in default under this Section) or Sellers (assuming Sellers are not in default under this Section) upon written notice to the other unless the FCC has theretofore set one or more of the FCC Applications for any reason within the original effective a hearing in which case this Agreement shall be extended for a sufficient period of any time to permit the hearing to be held and the FCC Consent, and neither party shall have terminated this Agreement pursuant to its rights under Section 8.1, the parties shall jointly request an extension or extensions of the effective period of such FCC Consent. No extension of the effective period of any FCC Consent shall limit the exercise by either party of its right to terminate the Agreement under Section 8.1make a decision.
Appears in 1 contract
FCC Approval. (a) The consummation of Notwithstanding any provision to the transactions contemplated hereby is contrary herein, Option Holder’s rights under this Agreement are subject to the prior consent Communications Act and approval the FCC Rules.
(b) As soon as reasonably practicable, but in no event later than five business days after Option Holder’s delivery of the FCC. Buyer and Seller Exercise Notice, the parties shall jointly file an application (the “Consent Application”) with the FCC substantially complete applications (the “Assignment Applications”) to request requesting the FCC’s written consent to (i) the voluntary assignment of the FCC Licenses from Seller the Company to Buyer Option Holder or (ii) the “FCC Consent”) within ten (10) Business Days after the execution transfer of this Agreement so long as Buyer has delivered the Escrow Deposit to the Escrow Agent in accordance with Section 1.4 above; provided, however, that if any FCC-imposed freeze on the filing of broadcast license assignment applications is in effect during such ten (10) Business Day period, then the Assignment Applications shall be filed not more than one (1) business day after such freeze is lifted. Buyer and Seller shall each pay its own expenses in connection with the preparation and prosecution control of the Assignment Applications and shall share Company from Grantor to Option Holder, as the case may be, including, as applicable, any filing fee(s) associated with the Assignment Applications equally. Seller and Buyer shall prosecute the Assignment Applications before the FCC, including opposing any petitions to deny filed against the Assignment Applications, with all commercially reasonable diligence, and otherwise use commercially reasonable efforts in order to obtain the FCC Consent promptly and in order to carry out the provisions waiver of this Agreement. Each party shall promptly provide to the other party a copy of any pleading, order or other document served on them or a copy of any formal inquiry or request by the FCC or the substance of any informal FCC inquiry relating to any such FCC ApplicationRules as Option Holder may deem appropriate or desirable (a “Waiver Request”). If FCC reconsideration or review, or if judicial review shall be sought with respect to the FCC Consent by a third party or upon the FCC’s own motion, Buyer and Seller shall cooperate in opposing such requests for FCC reconsideration or review or for judicial review.
(b) Except as provided in clause (c) or (d) belowIn addition, each party hereto covenants and agrees to (i) prepare, file and prosecute any alternative application, petition, motion, request (including any Waiver Request) or other filing (including including, upon the request of Option Holder, any motion for leave to withdraw or dismiss any Assignment Consent Application filed or other filing made by the parties with the FCC in connection with the transactions contemplated herebyby this Agreement) (collectively, the “Additional Applications” and, together with the Consent Application, the “FCC Applications”); (ii) file any amendment or modification to the FCC Applications; (iii) provide to Option Holder any information, documents or other materials reasonably requested by Option Holder in connection with the preparation of any such FCC Applications, including without limitation any Waiver Request; (iv) prosecute the FCC Applications with commercially reasonable diligence and otherwise use their commercially reasonable efforts to obtain a favorable conclusion with regard to the FCC Applications; (v) otherwise take any other action with respect to the FCC as may be reasonably necessary or reasonably requested by Option Holder in connection with the transactions contemplated hereby; and (ivvi) cooperate in good faith with the other party hereto with respect to the foregoingforegoing covenants, all as may be reasonably determined by Buyer or Seller Option Holder to be necessary, reasonably necessary or appropriate or advisable in order to consummate the transactions contemplated by this Agreement in a manner and within hereby upon the time period contemplated by this Agreement.
(c) exercise of the Option. Each party agrees shall promptly provide the other with a copy of any pleading, order or other document served on it relating to the FCC Applications, shall furnish all information required by the FCC and shall be represented at all meetings or hearings scheduled to consider the FCC Application. The FCC’s written consent to the assignment of the FCC Licenses or transfer of the Subject Shares, as the case may be, contemplated hereby is referred to herein as the “FCC Consent.” The parties each agree to comply with any condition imposed on it them by the any FCC Consent, except that no party shall be required to comply with, or consummate the transaction subject to, with a condition if compliance with the such condition could reasonably be expected to materially adversely effect it. If any requires such party to this Agreement divest any of its direct or indirect assets. The parties shall seek oppose any petitions to deny or other objections filed with respect to the application for any FCC reconsideration or review, or judicial review, of a materially adverse condition imposed by the FCC, the other party shall cooperate fully with the party seeking Consent and any requests for reconsideration or review of such condition; provided, however, that neither party shall seek or cause to be sought, without the prior written consent of the other party, FCC reconsideration or review, or judicial review, of any condition or qualification that is not a materially adverse condition. For purposes of this Agreement, a “materially adverse condition” shall not include any condition generally applicable to the broadcast industry or a transaction of this kind.
(d) If the Closing shall not have occurred for any reason within the original effective period of any FCC Consent, and neither party shall have terminated this Agreement pursuant to its rights under Section 8.1, the parties shall jointly request an extension or extensions of the effective period of such FCC Consent. No extension of the effective period of any FCC Consent shall limit the exercise by either party of its right to terminate the Agreement under Section 8.1.
Appears in 1 contract
Sources: Option Agreement (Barrington Broadcasting Group LLC)
FCC Approval. (a) The consummation of Notwithstanding any provision to the transactions contemplated hereby is contrary herein, Option Holder’s rights under this Agreement are subject to the prior consent Communications Act of 1934, as amended, and approval the rules, regulations and published policies of the FCC. Buyer and Seller .
(b) As soon as reasonably practicable, but in no event later than five business days after Option Holder’s delivery of the Exercise Notice, the parties shall jointly file with the FCC substantially complete applications an application (the “Assignment ApplicationsApplication”) to request with the FCC requesting the FCC’s written consent to the voluntary assignment of the FCC Licenses from Seller Grantor to Buyer (the “FCC Consent”) within ten (10) Business Days after the execution Option Holder, including, as applicable, any waiver of this Agreement so long as Buyer has delivered the Escrow Deposit to the Escrow Agent in accordance with Section 1.4 above; provided, however, that if any FCC-imposed freeze on the filing of broadcast license assignment applications is in effect during such ten (10) Business Day period, then the Assignment Applications shall be filed not more than one (1) business day after such freeze is lifted. Buyer and Seller shall each pay its own expenses in connection with the preparation and prosecution of the Assignment Applications and shall share any filing fee(s) associated with the Assignment Applications equally. Seller and Buyer shall prosecute the Assignment Applications before the FCC, including opposing any petitions to deny filed against the Assignment Applications, with all commercially reasonable diligence, and otherwise use commercially reasonable efforts in order to obtain the FCC Consent promptly and in order to carry out the provisions of this Agreement. Each party shall promptly provide to the other party a copy of any pleading, order or other document served on them or a copy of any formal inquiry or request by the FCC or the substance of any informal FCC inquiry relating to any such FCC ApplicationRules (a “Waiver Request”). If FCC reconsideration or review, or if judicial review shall be sought with respect to the FCC Consent by a third party or upon the FCC’s own motion, Buyer and Seller shall cooperate in opposing such requests for FCC reconsideration or review or for judicial review.
(b) Except as provided in clause (c) or (d) belowIn addition, each party hereto covenants and agrees to (i) prepare, file and prosecute any alternative application, petition, motion, request (including any Waiver Request) or other filing (including including, upon the request of Option Holder, any motion for leave to withdraw or dismiss any Assignment Application filed or other filing made by the parties with the FCC in connection with the transactions contemplated herebyby this Agreement) (collectively, the “Additional Applications” and, together with the Assignment Application, the “FCC Applications”); (ii) file any amendment or modification to the FCC Applications; (iii) provide to Option Holder any information, documents or other materials reasonably requested by Option Holder in connection with the preparation of any such FCC Applications, including without limitation any Waiver Request, (iv) prosecute the FCC Applications with commercially reasonable diligence and otherwise use their commercially reasonable efforts to obtain a favorable conclusion with regard to the FCC Applications; (v) otherwise take any other action with respect to the FCC as may be reasonably necessary or reasonably requested by Option Holder in connection with the transactions contemplated hereby; and (ivvi) cooperate in good faith with the other party hereto with respect to the foregoingforegoing covenants, all as may be reasonably determined by Buyer or Seller Option Holder to be necessary, reasonably necessary or appropriate or advisable in order to consummate the transactions contemplated by this Agreement in a manner and within hereby upon the time period contemplated by this Agreement.
(c) exercise of the Option. Each party agrees shall promptly provide the other with a copy of any pleading, order or other document served on it relating to the FCC Applications, shall furnish all information required by the FCC and shall be represented at all meetings or hearings scheduled to consider the FCC Application. The FCC’s written consent to the assignment of the FCC Licenses contemplated hereby is referred to herein as the “FCC Consent.” The parties each agree to comply with any condition imposed on it them by the any FCC Consent, except that no party shall be required to comply with, or consummate the transaction subject to, with a condition if compliance with the such condition could reasonably be expected to materially adversely effect it. If any requires such party to this Agreement divest any of its direct or indirect assets. The parties shall seek oppose any petitions to deny or other objections filed with respect to the application for any FCC reconsideration or review, or judicial review, of a materially adverse condition imposed by the FCC, the other party shall cooperate fully with the party seeking Consent and any requests for reconsideration or review of such condition; provided, however, that neither party shall seek or cause to be sought, without the prior written consent of the other party, FCC reconsideration or review, or judicial review, of any condition or qualification that is not a materially adverse condition. For purposes of this Agreement, a “materially adverse condition” shall not include any condition generally applicable to the broadcast industry or a transaction of this kind.
(d) If the Closing shall not have occurred for any reason within the original effective period of any FCC Consent, and neither party shall have terminated this Agreement pursuant to its rights under Section 8.1, the parties shall jointly request an extension or extensions of the effective period of such FCC Consent. No extension of the effective period of any FCC Consent shall limit the exercise by either party of its right to terminate the Agreement under Section 8.1.
Appears in 1 contract
FCC Approval. (a) The consummation of the transactions contemplated hereby is subject to the prior consent and approval of the FCC. Buyer and Seller shall jointly file with the FCC substantially complete applications (the “Assignment Applications”) to request the FCC’s consent to the voluntary assignment Each of the FCC Licenses from Seller Parties shall use its reasonable best efforts to Buyer (file the “FCC Consent”) within ten (10) Business Days applications seeking the FCC Approval, with the exception of the FCC application seeking FCC approval for transfer of control of the TVCC Lease, on or before the date that is 30 days after the execution of this Agreement so long Possible Offer Announcement or such later date as Buyer has delivered the Escrow Deposit to the Escrow Agent in accordance with Section 1.4 above; provided, however, that if any FCC-imposed freeze on the filing of broadcast license assignment applications is in effect during such ten (10) Business Day period, then the Assignment Applications shall be filed not more than one (1) business day after such freeze is liftedFCC Parties may mutually agree. Buyer and Seller shall each pay its own expenses in connection with the preparation and prosecution Each of the Assignment Applications and FCC Parties shall share any filing fee(s) associated with file the Assignment Applications equallyFCC application seeking the FCC Approval for transfer of control of the TVCC Lease at such time as is determined by Harbinger. Seller and Buyer Each of the FCC Parties shall use its reasonable best efforts to prosecute the Assignment Applications before the FCC, including opposing any petitions to deny filed against the Assignment Applications, with all commercially reasonable diligence, FCC applications and otherwise use commercially reasonable efforts in order to obtain the FCC Consent promptly and Approvals, cooperate in order to carry out the provisions of this Agreement. Each party shall promptly provide to the other party a copy of any pleading, order or other document served on them or a copy of any formal inquiry or request providing all information requested by the FCC and take all steps reasonably necessary or the substance of any informal FCC inquiry relating appropriate to any such FCC Application. If FCC reconsideration or review, or if judicial review shall be sought with respect to the FCC Consent by a third party or upon the FCC’s own motion, Buyer and Seller shall cooperate in opposing such requests for FCC reconsideration or review or for judicial review.
(b) Except as provided in clause (c) or (d) below, each party hereto covenants and agrees to (i) prepare, file and prosecute any alternative application, petition, motion, request or other filing (including any motion for leave to withdraw or dismiss any Assignment Application filed by such applications and obtain the parties FCC Approvals in each case in accordance with the FCC terms and conditions set forth in connection with the transactions contemplated hereby) (the “Additional Applications”); (ii) file any amendment or modification this Section 8.3 and subject at all times to the terms and conditions set forth in Section 8.2. If any Person petitions the FCC Applications; (iii) to deny or otherwise take challenges the applications for the FCC Approvals or any other action with respect application filed or amended to effectuate the purposes of this Agreement, the Stock Purchase Agreement or the consummation of the Transactions, or in the event the FCC as may be reasonably necessary in connection with grants the transactions contemplated hereby; and (iv) cooperate in good faith with applications for the FCC Approvals or any other party hereto with respect application filed or amended to effectuate the foregoing, all as may be reasonably determined by Buyer or Seller to be necessary, appropriate or advisable in order to consummate the transactions contemplated by this Agreement in a manner and within the time period contemplated by purposes of this Agreement.
(c) Each party agrees , or the Stock Purchase Agreement or the consummation of the Transactions and any Person petitions for stay, review or reconsideration of such grant before the FCC, or seeks judicial stay or review of such grant, then each of the FCC Parties shall use its reasonable best efforts to comply with any condition imposed on it oppose such petition or challenge before the FCC and vigorously defend the grant of such applications by the FCC Consentdiligently and in good faith, except provided that no party the FCC Parties shall be required not have any obligation to comply withparticipate in any evidentiary hearing on any such application. Should the FCC deny any such application or grant any such application subject to material adverse conditions, or consummate each of the transaction subject to, a condition if compliance with the condition could reasonably be expected FCC Parties shall utilize its reasonable best efforts to materially adversely effect it. If any party to this Agreement shall seek FCC reconsideration or review, or judicial review, of a materially adverse condition imposed by the FCC, the other party shall cooperate fully with the party seeking secure timely reconsideration or review of such condition; provideddenial or conditions, howeverprovided that the FCC Parties shall not have any obligation to participate in any evidentiary hearing on any such denial or imposition of conditions. The FCC Parties shall give each other a reasonable opportunity to review any and all pleadings, documents, applications and other materials filed by the FCC Parties with respect to any of the foregoing prior to its filing, provided that neither party shall seek or cause to no such filing will be sought, made without the prior written consent review and approval of Harbinger, and further provided that if the Company or any of its Subsidiaries is required to be a party to such filing, the Company shall be reasonably satisfied with the factual statements therein relating to the Company or any of its Subsidiaries, as the case may be. The FCC Parties shall promptly provide to each other copies of all material communications with the FCC related to the applications for the FCC Approval and provide to each other a reasonable opportunity to contribute to and review any and all pleadings, documents, applications and other materials filed with the FCC by each other. If consummation of the Transactions referred to in Section 8.1(i) to (iv) above or otherwise contemplated by this Agreement or the Stock Purchase Agreement requires the approval of Industry Canada and other partyAuthorities in Canada including the Competition Bureau and Investment Canada, the obligations of Harbinger and the Company under this Article VIII shall apply mutatis mutandis to applications, pleadings, documents and other materials and communications required to be filed with Industry Canada. The FCC reconsideration Parties further agree that they will use their reasonable best efforts to assist in any further applications that Harbinger or review, or judicial review, of any condition or qualification that is not a materially adverse condition. For purposes of this Agreement, a “materially adverse condition” shall not include any condition generally applicable its Affiliates may make in the future with FCC and Industry Canada relating to the broadcast industry or a transaction of this kindFCC Parties.
(d) If the Closing shall not have occurred for any reason within the original effective period of any FCC Consent, and neither party shall have terminated this Agreement pursuant to its rights under Section 8.1, the parties shall jointly request an extension or extensions of the effective period of such FCC Consent. No extension of the effective period of any FCC Consent shall limit the exercise by either party of its right to terminate the Agreement under Section 8.1.
Appears in 1 contract
Sources: Master Contribution and Support Agreement (Harbinger Capital Partners Master Fund I, Ltd.)