OPTION AGREEMENT
by and between
RKZ TELEVISION, INC.
and
▇▇▇▇▇▇▇▇▇▇ COMMUNICATIONS COMPANY
dated as of December 21, 1995
TABLE OF CONTENTS
Page
ARTICLE 1 GRANT OF THE OPTION; EXERCISE OF THE OPTION 2
Section 1.1. Grant of Option 2
Section 1.2. Schedules and Due Diligence Review 2
Section 1.3. Payment of Option Amount 2
Section 1.4. Exercise of the Option 2
ARTICLE 2 SUPPLEMENTAL AMOUNT 4
Section 2.1. Relocation of Transmitter Site 4
Section 2.2. Construction of Tower 4
Section 2.3. Payment of Supplemental Amount 4
Section 2.4. Termination of Obligation to Pay Supplemental
Amount 5
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF
GRANTOR 5
Section 3.1. Incorporation; Authorization; etc. 5
Section 3.2. Consents and Approvals 6
Section 3.3. Financial Statements 6
Section 3.4. Brokers, Finders, etc. 6
Section 3.5. Representations and Warranties in the Purchase
Agreement 7
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF ACC 7
Section 4.1. Incorporation; Authorization; etc 7
Section 4.2. Consents and Approvals 7
Section 4.3. Brokers, Finders, etc 7
Section 4.4. Representations and Warranties in the Purchase
Agreement 8
ARTICLE V ADDITIONAL AGREEMENTS 8
Section 5.1. Due Diligence Review 8
Section 5.2. Delivery of Schedules 8
Section 5.3. Operation of the Station 8
Section 5.4. Additional Deliveries of Grantor 8
Section 5.5. Additional Deliveries of ACC 9
Section 5.6. Confidentiality 9
Section 5.7. Non-solicitation of Employees 9
ARTICLE 6 CREDIT OR REFUND OF OPTION AMOUNT;
TERMINATION 10
Section 6.1. Credit for Option Amount and Supplemental Amount 10
Section 6.2. Termination 10
ARTICLE 7 GENERAL PROVISIONS 10
Section 7.1. Survival of Representations 10
Section 7.2. Agreement of Grantor to Indemnify 10
Section 7.3. Agreement of ACC to Indemnify 11
Section 7.4. Specific Performance 11
Section 7.5. Remedies Cumulative 11
ARTICLE 8 GENERAL PROVISIONS 12
Section 8.1. Expenses 12
Section 8.2. Notices 12
Section 8.3. Public Announcements 13
Section 8.4. Headings 13
Section 8.5. Severability 13
Section 8.6. Entire Agreement 13
Section 8.7. Successors and Assigns 13
Section 8.8. Third-Party Beneficiaries 14
Section 8.9. Amendment; Wavier 14
Section 8.10. Governing Law 14
Section 8.11. Jurisdiction and Forum 14
Section 8.12. Counterparts 15
Section 8.13. ▇▇▇▇▇▇ Guaranty 15
THIS OPTION AGREEMENT (the "Option Agreement") is made this
21st day of December, 1995, by and between ▇▇▇▇▇▇▇▇▇▇ Communications Company,
a Delaware corporation, or its designated affiliate (collectively, "ACC") and
RKZ Television, Inc., a Delaware corporation ("Grantor").
W I T N E S S E T H:
WHEREAS, Grantor owns and operates television broadcast station
WJSU-TV, Channel 40, Anniston, Alabama, together with certain auxiliary
facilities (the "Station");
WHEREAS, ACC and Grantor are entering into a Time Brokerage
Agreement as of the date hereof (the "Time Brokerage Agreement") pursuant to
which ACC agrees to provide programs, and Grantor agrees to broadcast such
programs on the Station, in conformance with the Time Brokerage Agreement and
the rules, regulations and policies of the Federal Communications Commission
("FCC");
WHEREAS, ACC is willing to enter into the Time Brokerage Agreement only
upon the condition that Grantor enters into this Option Agreement pursuant to
which Grantor grants to ACC the option to acquire the assets of the Station from
the Grantor for the Purchase Price as set forth in the Purchase Agreement (as
defined herein) and in accordance with and subject to the terms and conditions
set forth herein;
WHEREAS, ACC shall pay the Option Amount (as defined herein) to
Grantor on or before January 15, 1996, subject to a satisfactory due diligence
review by ACC of the Station and the Assets of the Station; and
WHEREAS, capitalized terms used herein but not defined shall have the
meanings ascribed to such terms in the form of Asset Purchase Agreement attached
hereto as Exhibit A and incorporated herein by reference (the "Purchase
Agreement").
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE 1.
GRANT OF THE OPTION; EXERCISE OF THE OPTION
Section 1.1. Grant of Option. Grantor hereby grants to ACC the
irrevocable right and option (the "Option"), but not the obligation, to acquire
the assets of the Station from Grantor, upon the terms and subject to the
conditions set forth herein and in the Purchase Agreement.
Section 1.2. Schedules and Due Diligence Review. On or before December
31, 1995, the Grantor shall deliver to ACC and ACC's counsel schedules, which
shall be complete and accurate in all material respects (together with copies of
the documents referred to therein) identified on Exhibit B hereto regarding the
Station and the assets of the Station (collectively, the "Schedules"). Grantor
shall
prepare the Schedules in compliance with the terms and conditions of the
Purchase Agreement. Upon receipt, ACC shall promtly review the Schedules and
shall conduct its due diligence review of the Station and the assets of the
Station (collectively, the "Diligence Review") until the later to occur of
December 31, 1995 or four (4) business days after ACC's receipt of the Schedules
(the "Commitment Date").
Section 1.3. Payment of Option Amount. In the event that on or before
the Commitment Date ACC is satisfied with the Diligence Review, ACC agrees to
pay to Grantor on or before January 15, 1996, the sum of Ten Million Dollars
($10,000,000) (the "Option Amount") (the date of such payment is hereafter
referred to as the "Commencement Date"). In the event that ACC provides written
notice to Grantor on or before the Commitment Date that ACC is not in its good
faith reasonable business judgment satisfied with the Diligence Review because
(a) Grantor has failed to deliver material information which had been reasonably
and timely requested by ACC, or (b) ACC has learned of a material adverse
disclosure regarding the business, assets, liabilities, results of operations,
business conditions (financial or otherwise) or properties of the Station (the
"Business Condition"), ACC shall have no obligation to pay the Option Amount to
Grantor, the Option and this Option Agreement shall terminate and neither party
hereto shall have any further liabilities or obligations hereunder.
Section 1.4. Exercise of the Option. ACC may exercise the Option at any
time prior to the tenth anniversary of the date of this Option Agreement (the
"Option Term") by delivering written notice of exercise thereof to Grantor. Upon
receipt of such notice, the Grantor, ACC and the Guarantor (as defined herein)
shall immediately enter into the Purchase Agreement and the Grantor shall
provide to ACC updates of the Schedules (the "Updated Schedules") within 15 days
following the execution of the Purchase Agreement. In the event that the Updated
Schedules contain materially adverse disclosures regarding the Business
Condition, ACC may terminate the Purchase Agreement and pursue any and all legal
and equitable remedies against Grantor.
ARTICLE 2.
SUPPLEMENTAL AMOUNT
Section 2.1. Relocation of Transmitter Site. Grantor agrees to use its
reasonable best efforts to obtain authorization from the FCC and the Federal
Aviation Administration ("FAA") to relocate the Station's antenna tower and
related transmitter facilities (collectively, the "Station Tower") to one of the
following locations (the "Transmitter Site"): (a) to the site presently
specified in Grantor's pending application on FCC Form 301, filed on August 8,
1995 (FCC File No. ▇▇▇▇-▇▇▇▇▇▇▇▇) (the "Modification Application"), or (b) such
other site which is reasonably acceptable to ACC and which places a predicted
city grade contour over at least part of the presently incorporated city limits
of Birmingham, Alabama (the "Birmingham Limits"). Grantor shall (a) pay all
preliminary costs necessary to
acquire access and/or ownership of the Transmitter Site, (b) complete the
engineering and FAA studies necessary for the Transmitter Site, (c) obtain all
federal, state, and local governmental approvals necessary for the relocation,
which approvals shall no longer be subject to judicial or administrative review
(collectively, the "Governmental Approvals"), and (d) pay all costs incurred in
connection with obtaining the Governmental Approvals.
Section 2.2. Construction of Tower. Following receipt of all
Governmental Approvals, ACC shall construct the Station Tower at the Transmitter
Site as authorized by the FCC and the FAA and abiding by the specifications of
any construction permits issued to Grantor. ACC shall own all assets acquired in
connection with the construction of the Station Tower, and shall grant to the
Grantor a license to use the Station Tower for the operation of the Station, for
a fee of one dollar ($1.00) per year, until the earlier to occur of the
following: (a) the Closing under the Purchase Agreement, (b) the termination of
the Purchase Agreement, or (c) the termination of the Option Agreement. If, upon
termination of such license, Grantor remains the initial Licensee of the
Station, ACC and Grantor shall enter into a lease on commercially reasonable
terms for Grantor's continued use of the Station Tower for operation of the
Station.
Section 2.3. Payment of Supplemental Amount.
(a) Upon receipt of all Governmental Approvals (the "Approval Date"),
the sum of Seven Million Dollars ($7,000,000) shall be payable by ACC to Grantor
as a supplemental payment in accordance with the terms of this Section 2.3 (the
"Supplemental Amount"). In the event that Grantor remains the owner and operator
of the Station on the Approval Date, ACC agrees to pay to Grantor Five Million
Dollars ($5,000,000) of the Supplemental Amount on the Approval Date and pay the
balance of Two Million Dollars ($2,000,000) of the Supplemental Amount upon the
Closing of the Purchase Agreement. In the event that ACC (or its assignee) has
become the owner and operator of the Station on the Approval Date, ACC shall pay
to Grantor the Supplemental Amount in full on the Approval Date.
(b) In the event that the area within the Birmingham Limits encompassed
by the predicted city grade contour of the Station, as approved and authorized
by the FCC, from the Station Tower at the Transmitter Site (the "Authorized
Contour Area") is less than the area within the Birmingham Limits encompassed by
the predicted city grade contour presently proposed in the Modification
Application (the "Proposed Contour Area"), the Supplemental Amount shall be
reduced to equal the amount which is the product of (i) Seven Million Dollars
($7,000,000) multiplied by (ii) the fraction of which the numerator is the
Authorized Contour Area and the denominator is the Proposed Contour Area. In the
event that the Supplemental Amount is reduced in accordance with the preceding
sentence, all partial payments of the Supplemental Amount shall also be reduced
pro rata. 2.4. Termination of Obligation to Pay Supplemental Amount. In the
event that Grantor has not obtained all Governmental Approvals within
forty-eight (48) months of the Commencement Date, ACC shall have the right by
written notice
to Grantor to terminate all of ACC's obligations under this Article 2 and
neither party hereto shall have any further liabilities or obligations under
this Article 2.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF GRANTOR
Grantor represents and warrants to ACC as follows:
Section 3.1. Incorporation; Authorization; etc. Grantor is a corporation
validly existing and in good standing under the laws of the State of Delaware,
and Grantor has full corporate power to execute and deliver this Option
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Option
Agreement and the Purchase Agreement, the performance of Grantor's obligations
hereunder and thereunder and the consummation of the transactions contemplated
hereby and thereby by Grantor have been duly and validly authorized by the board
of directors of Grantor and no other corporate proceedings or actions on the
part of Grantor, its board of directors or stockholders are necessary therefor.
The execution, delivery and performance of this Option Agreement and the
Purchase Agreement by Grantor will not (a) conflict with or violate any law,
order, award, judgment, injunction or decree applicable to Grantor, the Assets
or the Station or by which any of the Assets or the Station is subject or
affected, (b) conflict with or result in any breach of or constitute a default
(or an event which with notice or lapse of time or both would become a default)
of any Contract to which Grantor is a party or by which Grantor is bound or to
which any of the Assets or the Station is subject or affected, or result in the
acceleration of any indebtedness or in the creation of any Encumbrance upon the
Assets, or (c) conflict with or violate the articles of incorporation, bylaws or
any related organizational documents of Grantor. This Option Agreement has been
duly executed and delivered by Grantor, and, assuming the due execution hereof
by ACC, this Option Agreement constitutes the legal, valid and binding
obligation of Grantor.
Section 3.2. Consents and Approvals. Except for the consent of Society
National Bank, the execution and delivery of this Option Agreement do not and
will not require any consent, approval, exemption, authorization or other action
by, or filing with or notification to any Government Authority or any other
person, except that the Option Agreement shall be filed with the FCC within
thirty (30) days from the date hereof.
Section 3.3. Financial Statements. Grantor has prepared and shall
furnish to ACC the unaudited balance sheets of Grantor as of the end of the
fiscal year ending in each of 1992, 1993, and 1994 and unaudited statements of
income. Grantor also has prepared and shall furnish to ACC the unaudited balance
sheets of Grantor as of the end of each month of Grantor ending after November
30, 1995, and unaudited statements of income for the respective months then
ended. All of
the financial statements, including, without limitation, the notes thereto,
referred to in this Section: (a) are in accordance with the books and records of
the Grantor, (b) present fairly the consolidated financial position of the
Grantor as of the respective dates and the results of operations and changes in
financial position for the respective periods indicated, and (c) have been
prepared in accordance with generally accepted accounting principles applied on
a basis consistent with prior accounting periods.
Section 3.4. Brokers, Finders, etc.. Grantor has not employed, and is
not subject to the valid claim of, any broker, finder, consultant or other
intermediary in connection with the transactions contemplated hereby who would
have a valid claim for a fee or commission from ACC in connection with such
transactions. Grantor has employed the services of ▇▇▇▇ ▇▇▇▇▇ & Co. as broker
and shall be solely responsible for its fees in connection therewith.
Section 3.5. Representations and Warranties in the Purchase Agreement.
Grantor hereby makes all of the representations and warranties of the "Seller"
set forth in Article 3 of the Purchase Agreement for the benefit of ACC and all
such representations and warranties are (a) true and correct as of the date
heref, and (b) incorporated herein by reference in their entirety.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF ACC
ACC represents and warrants to Grantor as follows:
Section 4.1. Incorporation; Authorization; etc. ACC is a corporation
validly existing and in good standing under the laws of the State of Delaware,
and ACC has full corporate power to execute and deliver this Option Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Option Agreement, the
performance of ACC's obligations hereunder and the consummation of the
transactions contemplated hereby by ACC have been duly and validly authorized by
the board of directors of ACC and no other corporate proceedings or actions on
the part of ACC, its board of directors or stockholders are necessary therefor.
The execution, delivery and performance under this Option Agreement by ACC will
not (a) conflict with or violate any law, order, award, judgment, injunction or
decree applicable to ACC, (b) conflict with or result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) of a contract to which ACC is bound, or (c) conflict
with or violate the articles of incorporation, bylaws or any related
organizational documents of ACC. This Option Agreement has been duly executed
and delivered by ACC, and, assuming the due execution hereof by Grantor, this
Option Agreement constitutes the legal, valid and binding obligation of ACC,
enforceable against ACC in accordance with its terms.
Section 4.2. Consents and Approvals. The execution and delivery of this
Option Agreement do not and will not require any consent, approval, exemption,
authorization or other action by, or filing with or notification to any
Government Authority or any other person, except that the Option Agreement shall
be filed with the FCC within thirty (30) days from the date hereof.
Section 4.3. Brokers, Finders, etc. ACC has not employed, and is not
subject to the valid claim of, any broker, finder, consultant or other
intermediary in connection with the transactions contemplated hereby who would
have a valid claim for a fee or commission from ACC in connection with such
transactions.
Section 4.4. Representations and Warranties in the Purchase Agreement.
ACC hereby makes all of the representations and warranties of the "Buyer" set
forth in Article 4 of the Purchase Agreement for the benefit of Grantor and all
such representations and warranties are (a) true and correct as of the date
heref, and (b) incorporated herein by reference in their entirety.
ARTICLE 5.
ADDITIONAL AGREEMENTS
Section 5.1. Due Diligence Review. Grantor covenants and agrees to
provide ACC and ACC's authorized representatives (a) full and complete access
upon reasonable notice during normal business hours to Grantor's properties,
books, records, contracts, commitments, facilities, premises, and equipment and
to Grantor's respective directors, officers and employees, agents and
representatives, and (b) all such other information and copies of documents as
ACC may reasonably request, concerning Grantor, the operation of the Station and
the Assets of the Station, and the Station's customers and suppliers. Grantor
covenants and agrees to permit Buyer's consulting engineers and other
representatives, agents, employees and independent contractors, at Buyer's
expense, to conduct engineering and other inspections of the Station and the
assets of the Station.
Section 5.2. Delivery of Schedules. Grantor covenants and agrees to
deliver to ACC and ACC's counsel the Schedules on or before December 31, 1995.
Grantor further covenants and agrees that the Schedules shall be true, complete
and accurate as of the date hereof.
Section 5.3. Operation of the Station. From and after the date of this
Option Agreement, Grantor agrees to comply with and be bound by the covenants
and agreements regarding operation of the Station set forth in Section 7 of the
Purchase Agreement and such covenants and agreements are incorporated herein by
reference in their entirety. Grantor agrees to keep ACC fully apprised of all
material developments with respect to the Station and the Grantor.
Section 5.4. Additional Deliveries of Grantor. In addition to the other
things required to be done hereby, Grantor shall deliver, or cause to be
delivered, as
of the date hereof, to ACC the following: (a) a copy of the resolutions of the
board of directors of Grantor, authorizing the execution, delivery and
performance hereof by Grantor, and a certificate of its secretary or assistant
secretary, dated as of the date hereof, that such resolutions were duly adopted
and are in full force and effect, and (b) such other certificates, instruments
and documents as may be reasonably requested by ACC to carry out the provisions
hereof and give effect to the transactions contemplated hereby.
Section 5.5. Additional Deliveries of ACC. In addition to the payment of
the Option Amount and the other things required to be done hereby, ACC shall
deliver, or cause to be delivered, as of the date hereof, to Grantor the
following: (a) a copy of the resolutions of the board of directors of ACC,
authorizing the execution, delivery and performance hereof by ACC, and a
certificate of ACC's secretary or assistant secretary, dated as of the date
hereof, that such resolutions were duly adopted and are in full force and
effect, and (b) such other certificates, instruments and documents as may be
reasonably requested by Grantor to carry out the provisions hereof and give
effect to the transactions contemplated hereby.
Section 5.6. Confidentiality. ACC shall maintain strict confidentiality
with respect to all documents and information furnished to ACC by or on behalf
of Grantor; provided, however, that ACC shall have no such obligations with
respect to confidential information that (a) is a matter of public knowledge or
(b) has been or is hereafter publicly disclosed other than by or through ACC. In
the event the Option Agreement is terminated, ACC will return to Grantor all
copies in its possession of documents, drafts, work papers, and other material
prepared or furnished by Grantor relating to the transactions contemplated
hereunder, whether obtained before or after the execution of the Option
Agreement and the agreements and instruments called for hereunder.
Section 5.7. Non-solicitation of Employees. In the event that ACC
terminates the Option pursuant to Section 1.3 of this Option Agreement, ACC
agrees that it will not solicit for hire or hire any employee of Grantor for a
period of one (1) year from the date hereof.
Section 5.8. Delivery of Bank Consent. Grantor shall obtain written
consent of Society National Bank in connection with the Grantor's execution,
delivery and performance of the Time Brokerage Agreement, the Purchase Agreement
and this Option Agreement. Grantor covenants and agrees to deliver to ACC and
ACC's counsel a copy of such consent within three (3) business days from the
date hereof.
ARTICLE 6. CREDIT OF OPTION AMOUNT AND SUPPLEMENTAL AMOUNT; TERMINATION
Section 6.1. Credit for Option Amount and Supplemental Amount. In
the event the Option is exercised pursuant to Section 1.4, the Option Amount and
any portion of the Supplemental Amount paid to Grantor (collectively, the
"Reimbursable Amounts") shall be credited to the payment of the Purchase Price
pursuant to terms and conditions of the Purchase Agreement.
Section 6.2 Termination. Without limiting any rights of ACC set forth in
Article 7, ACC shall have the right to terminate this Option Agreement upon the
occurrence of any of the following events:
(a) any representation or warranty of Grantor contained in Article 3
hereof shall fail to be true and correct in all material respects; or
(b) Grantor shall fail to comply in any material respect with any
covenant or obligation applicable to it set forth in this Option Agreement, the
Time Brokerage Agreement or the Purchase Agreement.
ARTICLE 7.
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATIONS; REMEDIES
Section 7.1. Survival of Representations. All representations and
warranties made by any party in this Option Agreement or pursuant hereto shall
survive the date hereof for a period of two (2) years, provided that Sections
3.13 and 3.15 of the Purchase Agreement, as incorporated by reference herein in
Section 3.5, shall survive the date of this Option Agreement for a period equal
to the applicable statute of limitations and Section 3.05(b) of the Purchase
Agreement shall survive without limitation as to time.
Section 7.2 Survival of Covenants. All other covenants, indemnities and
other agreements made by any party to this Option Agreement herein or pursuant
hereto shall survive the date hereof and any investigation, audit or inspection
at any time made by or on behalf of any party hereto.
Section 7.3. Agreement of Grantor to Indemnify. Grantor hereby agrees to
indemnify, defend and hold harmless ACC and its affiliates, employees,
stockholders, representatives, agents, officers and directors (the "ACC
Indemnified Persons") from and against and in any respect of all Losses asserted
against, resulting to, imposed upon or incurred by the ACC Indemnified Persons
(whether such Losses are by, against or relate to Grantor or any other party,
including a governmental entity), directly or indirectly, by reason of or
resulting from any misrepresentation or breach of any representation or
warranty, or noncompliance with any conditions, covenants or other agreements,
given or made by Grantor in this Option Agreement or the Time Brokerage
Agreement.
Section 7.4. Agreement of ACC to Indemnify. ACC hereby agrees to
indemnify, defend and hold harmless Grantor and its affiliates, employees,
stockholders, representatives, agents, officers and directors (the "Grantor
Indemnified Persons") from and against and in respect of all Losses asserted
against, resulting to, imposed upon or incurred by the Grantor Indemnified
Persons (whether such Losses are by, against or relate to ACC or any other
party, including, without limitation, a governmental entity), directly or
indirectly, by reason of or resulting from any misrepresentation or breach of
any representation or warranty, or noncompliance with any conditions, covenants
or other agreements, given or made by ACC in this Option Agreement or the Time
Brokerage Agreement.
Section 7.5. Specific Performance. In addition to any other remedies
which ACC may have at law or in equity, Grantor hereby acknowledge that the
Assets and the Station are unique, and that the harm to ACC resulting from a
breach by Grantor of its obligations cannot be adequately compensated by
damages. Accordingly, Grantor agrees that ACC shall have the right to have all
obligations, undertakings, agreements, covenants and other provisions of this
Option Agreement specifically performed by Grantor, and that ACC shall have the
right to obtain an order or decree of such specific performance in any of the
courts of the United States of America or of any state or other political
subdivision thereof.
Section 7.6. Remedies Cumulative. The remedies provided herein shall be
cumulative and shall not preclude the assertion by Grantor or ACC of any other
rights or the seeking of any other remedies against the other, or their
respective successors or assigns.
ARTICLE 8.
GENERAL PROVISIONS
Section 8.1. Expenses. Unless otherwise indicated in this Option
Agreement, all costs and expenses incurred in connection with this Option
Agreement and the transactions contemplated hereby, including fees and
disbursements of counsel, financial advisors and accountants, shall be paid by
the party incurring such costs and expenses.
Section 8.2. Notices. All notices, requests, claims, demands and other
communications given or made pursuant hereto shall be in writing (and shall be
deemed to have been duly given or made upon receipt) by delivery in person, by
telecopy (with confirmation copy of such telecopied material delivered in person
or by registered or certified mail, postage prepaid, return receipt requested)
or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other address
for a party as shall be specified in a notice given in accordance with this
Section). Notices to Grantor shall be addressed to:
RZK Television, Inc.
c/▇ ▇▇▇▇▇▇ Communications Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, P.L.C.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address and to the attention of such other person as Grantor
may designate by written notice to ACC. Notices to ACC shall be addressed to:
▇▇▇▇▇▇▇▇▇▇ Communications Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address and to the attention of such other person as ACC may
designate by written notice to Grantor.
Section 8.3. Public Announcements. The parties hereto shall not make, or
cause to be made, any press releases or public announcements in respect of this
Option Agreement or the transactions contemplated herein or otherwise
communicate with any news media without prior notification of the other, and the
parties shall cooperate as to the timing and content of any such announcement.
Section 8.4. Headings. The descriptive headings contained in this Option
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Option Agreement.
Section 8.5. Severability. If any term or other provision of this Option
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or
public policy, all other conditions and provisions of this Option Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Option Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the greatest extent possible.
Section 8.6. Entire Agreement. This Option Agreement, together with the
other agreements contemplated hereby, constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and undertakings, both written and oral, with respect to the
subject matter hereof.
Section 8.7. Successors and Assigns. This Option Agreement shall be
binding upon and inure to the benefit of the parties hereto and their permitted
successors and assigns. Grantor may not assign its rights and obligations
hereunder without the prior written consent of ACC. ACC shall be permitted to
assign any of its rights hereunder to any person, but shall remain liable on
ACC's obligations.
Section 8.8. Third-Party Beneficiaries. This Option Agreement is for the
sole benefit of the parties hereto and their permitted assigns and nothing
herein expressed or implied shall give or be construed to give to any person,
other than the parties hereto and such assigns, any legal or equitable rights
thereunder.
Section 8.9. Amendment; Wavier. This Option Agreement may not be amended
or modified except by an instrument in writing duly executed by each party
hereto. Waiver of any term or condition of this Option Agreement shall only be
effective if in a writing signed by the party to be charged therewith and shall
not be construed as a waiver of any subsequent breach or waiver of the same term
or condition, or a waiver of any other term or condition of this Option
Agreement.
Section 8.10. Governing Law. This Option Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York applicable
to contracts executed and performed in that State.
Section 8.11. Jurisdiction and Forum. (a) The parties hereto agree that
an appropriate forum and venue for any disputes between the parties hereto
arising out of this Option Agreement shall be any state or federal court in the
State of New York. By the execution and delivery of this Option Agreement, each
of ACC and Grantor irrevocably submits to the personal jurisdiction of any state
or federal court in the State of New York in any suit or proceeding arising out
of this Option
Agreement or the transactions contemplated hereby. The foregoing shall not limit
the rights of any party to obtain execution of judgment in any other
jurisdiction. The parties further agree, to the extent permitted by law, that
final and unappealable judgment against any of them in any action or proceeding
contemplated above shall be conclusive and may be enforced in any other
jurisdiction within or outside the United States by suit on the judgment, a
certified or exemplified copy of which shall be conclusive evidence of the fact
and amount of such judgment.
(b) To the extent that either ACC or Grantor has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
property, each of ACC and Grantor hereby irrevocably waives such immunity in
respect of its obligations with respect hereto.
Section 8.12. Counterparts. This Option Agreement may be executed in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
Section 8.13. ▇▇▇▇▇▇ Guaranty. (a) ▇▇▇▇▇▇ Communications Corp.
("Guarantor") hereby irrevocably and unconditionally guarantees to ACC the
prompt and complete payment and performance of each and every obligation of
Grantor to ACC, direct or indirect, now existing or hereafter arising under this
Option Agreement, including the due and punctual performance and observance by
Grantor of all of the terms and conditions of this Option Agreement.
(b) The obligations of Guarantor hereunder shall be absolute and
unconditional and shall continue in full force and effect until the payment and
performance of all of the obligations of Grantor under this Option Agreement,
and are in no way conditioned upon any event or contingency, or upon any attempt
to enforce Grantor's performance under this Option Agreement or any other right
or remedy against Grantor or to collect from Grantor through the commencement of
legal proceedings or otherwise.
(c) The obligations of Guarantor hereunder shall not be affected,
reduced, impaired, modified, changed, released, limited or discharged in any
manner whatsoever by reason of any impairment, modification, change, release, or
limitation of the liability of Grantor or its estate in bankruptcy, resulting
from the operation of any present or future provision of the bankruptcy laws or
other similar statute, or from the decision of any court.
(d) Guarantor unconditionally waives diligence, presentment, protest,
notice of dishonor, demand, extension of time for payment, notice of
nonpayment at maturity, and indulgences and notices of every kind, and consents
to any and all changes in terms, covenants, and conditions hereof.
(e) Guarantor agrees that the obligations of Guarantor hereunder are
irrevocable and are independent of the obligations of Grantor under this Option
Agreement; that a separate action or actions may be brought and prosecuted
against Guarantor regardless of whether any action is brought against Grantor or
whether Grantor is joined in any such action or actions.
(f) Guarantor agrees that Guarantor shall not exercise any rights that
it may acquire by way of subrogation hereunder or otherwise until the
performance in full of all obligations guaranteed pursuant hereto.
(g) Guarantor represents and warrants to ACC that (i) it is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware, (ii) it has the full corporate power and
corporate authority to enter into this Option Agreement, and this Option
Agreement has been duly authorized, executed and delivered by Guarantor and is a
legal, valid and binding agreement and obligation of Guarantor enforceable
against Guarantor in accordance with its terms, except to the extent limited by
applicable bankruptcy, insolvency, moratorium and other similar laws of general
application relating to or affecting the enforcement of creditors' rights and
general equity principles, (iii) neither the execution and delivery of this
Option Agreement, the consummation of any of the transactions contemplated
herein, nor compliance with the terms hereof, will conflict with or result in a
breach of any provision of any law or regulation applicable to Guarantor, or any
indenture, contract or other agreement to which Guarantor is a party or by which
Guarantor is bound, or any statute, rule, regulation, judgment, decree or order
binding upon Guarantor, and (iv) Guarantor indirectly owns all of the issued and
outstanding stock of Grantor.
(h) The provisions of this Section shall inure to the benefit of and may
be enforced by ACC and its successors and assigns, and shall be binding upon and
enforceable against Guarantor and Guarantor's successors or assigns.
Section 8.14. Delivery of Forms of Exhibits. Within fourteen (14) days
from the date of this Option Agreement, Grantor shall deliver to ACC in form and
substance reasonably satisfactory to ACC the form of Exhibits A through G of the
Purchase Agreement.
IN WITNESS WHEREOF, the parties have caused this Option Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
▇▇▇▇▇▇▇▇▇▇ COMMUNICATIONS
COMPANY
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
RKZ TELEVISION, INC.
By:
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
For purposes of Section 8.13 of
this Option Agreement
▇▇▇▇▇▇ COMMUNICATIONS CORP.
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
EXHIBIT A - FORM OF ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
TABLE OF CONTENTS
Page
----
ARTICLE 1. 1
DEFINITIONS AND REFERENCES 1
ARTICLE 2. 6
SALE AND PURCHASE OF ASSETS; PURCHASE PRICE;
PAYMENT OF PURCHASE PRICE; ASSUMPTION OF
LIABILITIES 6
2.01 Asset Sale. 6
2.02 Purchase Price. 6
2.03 Payment of Purchase Price. 6
2.04 Assumption of Liabilities. 6
ARTICLE 3 7
REPRESENTATIONS AND WARRANTIES BY SELLER 7
3.01 Organization and Standing. 7
3.02 Authorization. 7
3.03 Litigation; Compliance with Law. 7
3.04 Financial Statements and Condition; Liabilities. 8
3.05 Assets; Consents. 8
3.06 Condition of Tangible Assets. 9
3.07 Trademarks; Licenses. 10
3.08 Licenses. 10
3.09 Reports and Records. 10
3.10 Contracts. 11
3.11 Conflicts. 11
3.12 Related Parties. 11
3.13 Taxes. 12
3.14 Employee Benefit Plans. 12
3.15 Environmental Matters. 14
3.16 Labor Relations. 15
3.17 Broadcast of Programming 15
3.18 Insurance. 15
3.19 Disclosure. 16
ARTICLE 4. 16
REPRESENTATIONS AND WARRANTIES BY BUYER 16
4.01 Organization and Standing. 16
4.02 Authorization. 16
4.03 Qualification as Licensee. 17
ARTICLE 5. 17
APPLICATION FOR COMMISSION CONSENT 17
ARTICLE 6. 17
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ 17
ARTICLE 7. 18
COVENANTS AND AGREEMENTS OF SELLER 18
7.01 Negative Covenants. 18
7.02 Affirmative Covenants. 19
7.03 Removal of Materials. 21
7.04 Confidentiality. 21
7.05 Employees. 21
ARTICLE 8. 22
COVENANTS AND AGREEMENTS OF BUYER 22
8.01 Confidentiality. 22
8.02 Corporate Action. 22
ARTICLE 9. 22
CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE 22
9.01 Representations and Covenants. 22
9.02 Consents. 23
9.03 Delivery of Documents. 23
9.04 FCC Order. 23
9.05 Title Insurance Commitment and Survey. 23
9.06 Legal Proceedings. 23
9.07 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. 23
9.08 Absence of Material Change. 23
ARTICLE 10. 24
CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO
CLOSE. 24
10.01 Representations and Covenants. 24
10.02 Delivery of Documents. 24
10.03 FCC Order. 24
10.04 Legal Proceedings. 24
10.05 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. 24
ARTICLE 11. 25
THE CLOSING 25
11.01 Closing. 25
11.02 Delivery by Seller. 25
11.03 Delivery by Buyer. 26
ARTICLE 12. 27
ALLOCATION OF PURCHASE PRICE AMONG ASSETS 27
ARTICLE 13. 27
POSSESSION AND CONTROL 27
ARTICLE 14. 27
RISK OF LOSS 27
ARTICLE 15. 28
SURVIVAL; INDEMNIFICATION 28
15.01 Survival of Seller's Representations. 28
15.02 Indemnification by Seller. 28
15.03 Survival of Buyer's Representations. 28
15.04 Indemnification by Buyer. 29
15.05 Conditions of Indemnification. 29
ARTICLE 16. 30
TERMINATION 30
ARTICLE 17. 31
REMEDIES 31
17.01 Default by Buyer. 31
17.02 Default by Seller. 31
17.03 Specific Performance. 31
ARTICLE 18. 32
GUARANTEE 32
ARTICLE 19. 33
ADDITIONAL ACTIONS AND DOCUMENTS 33
ARTICLE 20. 33
BROKERS 33
ARTICLE 21. 34
EXPENSES 34
ARTICLE 22. 34
NOTICES 34
ARTICLE 23. 35
WAIVER 35
ARTICLE 24. 36
BENEFIT AND ASSIGNMENT 36
ARTICLE 25. 36
REMEDIES CUMULATIVE 36
ARTICLE 26. 36
ENTIRE AGREEMENT; AMENDMENT 36
ARTICLE 27. 37
SEVERABILITY 37
ARTICLE 28. 37
PRESS RELEASES 37
ARTICLE 29. 37
HEADINGS 37
ARTICLE 30. 37
GOVERNING LAW 37
ARTICLE 31. 38
SIGNATURE IN COUNTERPARTS 38
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered into as of
this day of , 199___ by and between RKZ TELEVISION, INC., a Delaware corporation
("Seller"), and ▇▇▇▇▇▇▇▇▇▇ COMMUNICATIONS COMPANY, a Delaware corporation, or
its designated affiliate ("Buyer").
WHEREAS, Seller owns and operates Television Station WJSU-TV,
Channel 40, Anniston, Alabama, together with certain auxiliary facilities
(collectively, the "Station");
WHEREAS, Seller and Buyer are parties to that certain Option Agreement
dated as of , 1995 whereby Seller granted to Buyer the option to purchase the
assets of the Station from Seller (the "Option Agreement");
WHEREAS, Buyer exercised the Option pursuant to written notice
dated as of ; and
WHEREAS, Buyer agrees to purchase from Seller all the Assets (as
hereinafter defined), and Seller desires to sell all the Assets to Buyer, all in
accordance with and subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, and intending to be legally
bound, the parties hereto hereby agree as follows:
ARTICLE 1.
DEFINITIONS AND REFERENCES
As used herein, the following terms shall have the meanings set forth
below, unless the context otherwise requires:
"Accounts Receivable" means all accounts, notes or accounts receivable
with respect to the Station.
"Additional Agreements" shall have the meaning set forth in
Section 7.01(e).
"Applications" shall have the meaning set forth in Section 5.
"Assets" means the Station and all real, personal and mixed assets, both
tangible and intangible (including the business of the Station as a "going
concern"), wherever located, owned or held by Seller and which are used or
useful in the business and operation of the Station. Subject to the provisions
of Section 7, Assets shall include all such assets existing on the date of this
Agreement and all such assets acquired between that date and the Closing Date,
and shall include, without limitation, all of Seller's right, title and interest
in and to the following assets:
(a) that certain real property set forth and described in Schedule 1(a).
(b) the leasehold interests in that certain real property described in
Schedule 1(b).
(c) all buildings, structures, fixtures, and other improvements now or
hereafter actually or constructively attached to the Property, and all
modifications, additions, restorations, or replacements of the whole or any part
thereof, including, without limitation, those described in Schedules 1(a) and
1(b) (the "Improvements").
(d) as landlord (whether named as such therein or by assignment or
otherwise) in all leases and subleases, if any, of the Property and the
Improvements now existing or at any time hereafter made, and any and all
amendments, modifications, supplements, renewals and extensions thereof,
together with all rents, royalties, security deposits, revenues, issues,
earnings, profits, income and other benefits of the Property or the Improvements
now due or hereafter to become due with respect to the Property or the
Improvements or any part thereof.
(e) in and to all streets, roads and public places, opened or proposed,
and all easements and rights of way, public and private, rights and
appurtenances, now or hereafter used in connection with, or belonging, incident
or appertaining to, the Property or the Improvements.
(f) all furniture, fixtures, furnishings, machinery, equipment,
inventory, supplies, antenna installations, towers and other property,
including, without limitation, those described in Schedule 1(f).
(g) all of the Licenses (as hereinafter defined) for the Station as more
fully described in Schedule 1(g).
(h) all of the copyrights, trademarks and trade names (including any
and all applications, registrations, extensions and renewals relating thereto),
and all of the rights associated therewith, including, without limitation, those
described in Schedule 1(h) and Seller's rights to the call letters for the
Station.
(i) all contracts, agreements, leases and other intangible assets,
including, without limitation, those trade-out agreements and other contracts,
agreements and leases described in Schedule 1(i).
(j) all deposits and prepaid expenses, including, without limitation,
those described in Schedule 1(j).
(k) all automotive equipment and motor vehicles, including, without
limitation, those described in Schedule 1(k).
(l) all engineering, business and other books, papers, files and
records, but not the articles of incorporation, by-laws, minute books, stock
transfer records, or other corporate records of Seller.
(m) all translators, earth stations, and other auxiliary facilities, and
all applications therefor. "Assignment of Contracts" means that certain
Assignment of Contracts, dated as of the Closing Date and executed by Seller,
substantially in the form attached hereto as Exhibit D.
"Assignment of Leases" means that certain Assignment of Leases, dated as
of the Closing Date and executed by Seller, substantially in the form attached
hereto as Exhibit A.
"Assignment of Licenses" means that certain Assignment of Licenses,
dated as of the Closing Date and executed by Seller, substantially in the form
attached hereto as Exhibit C.
"Assumption Agreement" means that certain Assumption Agreement dated as
of the Closing Date and executed by Buyer and Seller, substantially in the form
attached hereto as Exhibit G.
"▇▇▇▇ of Sale" means that certain ▇▇▇▇ of Sale and Assignment of Assets,
dated as of the Closing Date and executed by Seller, substantially in the form
attached hereto as Exhibit B.
"Claims" shall have the meaning specified in Section 15.05.
"Closing" means the closing of the purchase, assignment and sale of the
Assets contemplated hereunder.
"Closing Date" means the time and date on which the Closing takes place,
as established by Section 11.01.
"Commission" means the Federal Communications Commission.
"Deed" means the general warranty deed of Seller, substantially in the
form attached hereto as Exhibit E.
"Encumbrances" mean any mortgages, pledges, liens, claims, security
interests, agreements, restrictions, defects in title, easements, encumbrances,
or charges.
"FCC Order" means an order or orders of the Commission, or of the Chief,
Mass Media Bureau, acting under delegated authority, consenting to the
assignment to Buyer of the Licenses for the Station, as proposed in the
Applications
therefor, without conditions which are adverse to Buyer or which in any way
diminish the operating rights with respect to the Assets and the Station, except
any such conditions expressly accepted by Buyer in writing.
"Final Order" means the FCC Order(s) as to which the time for filing a
request for administrative or judicial review, or for instituting administrative
review sua sponte, shall have expired without any such filing having been made
or notice of such review having been issued; or, in the event of such filing or
review sua sponte, as to which such filing or review shall have been disposed of
favorably to the grant and the time for seeking further relief with respect
thereto shall have expired without any request for such further relief having
been filed.
"Indemnified Party" and "Indemnifying Party" shall have the respective
meanings specified in Section 15.05.
"Licenses" means all of the licenses and other authorizations issued by
the Commission for the operation of the Station, as set forth in Schedule 1(g).
"Option" means the option to purchase the Station granted by Seller to
Buyer, pursuant to the exercise of which this Agreement has been entered into.
"Option Consideration" means the amount of Ten Million Dollars
($10,000,000) which Buyer has paid Seller pursuant to the terms of the Option
Agreement and any portion of the Supplemental Amount, if any, previously paid by
Buyer to Seller.
"Property" means, collectively, that certain real property described in
Schedule 1(a) and the leasehold interests in that certain real property
described in Schedule 1(b).
"Purchase Price" means the amount of Twelve Million Dollars
($12,000,000) and up to an additional amount of Seven Million Dollars
($7,000,000) in the event that the Supplemental Amount has been paid by Buyer to
Seller as specified in Section 2.3 of the Option Agreement.
"Station Contracts" shall have the meaning set forth in Section 3.10.
"Supplemental Amount" shall have the meaning set forth in the Option
Agreement.
"Survey" means the surveys for all parcels of real property described on
Schedule 1(a), each of which shall be prepared by a registered land surveyor
licensed in the State of Alabama (the "Surveyor"), certified by the Surveyor to
Buyer and Buyer's lender, and showing (a) the location of all lot and street
lines, (b) the location of encroachments, overhangs or projections by buildings
or improvements erected on adjacent lands or on such real property, (c) means of
ingress and egress to public roads, (d) the location of all utility and other
easements, rights of way, set-back lines and other matters of record affecting
such real property; (e) a description and the location of all existing
improvements (including parking areas), and (f) such other facts and information
as Buyer may require.
"TBA" means that certain Time Brokerage Agreement, dated as of December
21, 1995, by and between Seller and Buyer.
"Title Insurance Commitment" means an irrevocable title insurance
commitment issued by a title insurance company acceptable to Buyer with respect
to the real property described in Schedule 1(a) for (i) a prepaid owner's policy
of title insurance (on ALTA Form B 1990 or form offering similar coverage),
showing fee simple title to the real property described in Schedule 1(a) in
Buyer, with no exception as to survey matters, no standard pre-printed
exceptions, no creditors' rights exceptions, no exceptions for mechanics and
materialmen's liens, no gap exceptions, and affirmative coverage as Buyer may
reasonably request, and (ii) a prepaid full-coverage mortgagee policy of title
insurance (on the ALTA 1990 form or form offering similar coverage), naming
Buyer's lender as the insured party, with no exception as to survey matters, no
standard pre-printed exceptions, no creditors' rights exceptions, no exceptions
for mechanics and materialmen's liens, no gap exceptions, and affirmative
coverage as Buyer may reasonably request, insuring that the mortgage of Buyer's
lender constitutes a valid and recorded first lien on a good and marketable fee
simple interest in the real property described in Schedule 1(a). The dollar
amount of each policy shall be equal to the amount of consideration allocated to
the real property pursuant to Section 12.
All references to Sections, Exhibits and Schedules are to Sections of
and Exhibits and Schedules to this Agreement.
ARTICLE 2.
SALE AND PURCHASE OF ASSETS; PURCHASE PRICE; PAYMENT OF
PURCHASE PRICE; ASSUMPTION OF LIABILITIES
2.01 Asset Sale.
On the basis of the representations, warranties and agreements contained
herein, and subject to the terms and conditions hereof, Seller agrees to sell,
assign, transfer, convey and deliver to Buyer, and Buyer agrees to purchase from
Seller, the Assets at the Closing.
2.02 Purchase Price.
For and in consideration of the conveyances and assignments described
herein and in addition to the assumption of liabilities as set forth in Section
2.04, Buyer agrees to pay to Seller, and Seller agrees to accept from Buyer, the
Purchase Price (less the Option Consideration), subject to adjustment for
payment of expenses as provided for in Section 21. The Purchase Price shall be
payable as described in Section 2.03. The Purchase Price shall be allocated
among the Assets in accordance with Section 12.
2.03 Payment of Purchase Price.
On the Closing Date, the Buyer shall pay the adjusted Purchase Price (as
calculated in accordance with Section 2.02) to Seller by wire transfer of
immediately available funds.
2.04 Assumption of Liabilities.
At the Closing, Buyer shall assume only the following liabilities and
obligations of Seller (the "Assumed Liabilities"): (a) the liabilities and
obligations of Seller to be performed after the Closing Date under the
contracts, agreements and leases set forth and described in Schedules 1(b) and
1(i) and (b) the liabilities and obligations of Seller to be performed after the
Closing Date under any contracts, agreements and leases which are entered into
after the date hereof (in compliance
with Section 7) and which are identified in the certificate referred to in
Section 11.02(c). Buyer shall not assume or be deemed to assume any debts,
liabilities or obligations of Seller except as specified in this Section 2.04.
All such assumptions pursuant to this Section 2.04 shall be subject to Buyer's
confirmation with creditors of existing unperformed obligations.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES BY SELLER
Seller represents and warrants to Buyer as follows:
3.01 Organization and Standing.
Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and authorized to conduct
business in the State of Alabama. Neither the nature of the business conducted
by Seller, nor the character of the properties owned, leased or otherwise held
by Seller makes any such qualification necessary in any other state, country,
territory or jurisdiction. Seller has the full and unrestricted power and
authority, corporate and otherwise, to own, lease and operate the Assets, to
carry on its business as now conducted, and to enter into and perform the terms
of this Agreement, the agreements, and instruments referred to herein, and the
transactions contemplated hereby and thereby.
3.02 Authorization.
The execution, delivery and performance of this Agreement and of the
agreements and instruments called for hereunder, and the consummation of the
transactions contemplated hereby and by such agreements and instruments have
been duly and validly authorized by all necessary actions of Seller (none of
which actions has been modified or rescinded and all of which actions are in
full force and effect). This Agreement constitutes, and upon execution and
delivery each other agreement and instrument will constitute, a valid and
binding agreement and obligation of Seller, enforceable in accordance with its
respective terms. Except as specified in Section 3.05, the execution, delivery
and performance by Seller of this Agreement and the agreements and instruments
called for hereunder will not require the consent, approval or authorization of
any person, entity or governmental authority.
3.03 Litigation; Compliance with Law.
There is no action, suit, investigation, claim, arbitration or
litigation pending or, so far as Seller knows, threatened against or involving
either Seller, the Assets, the Station or the Station's business and operations,
at law or in equity, or before or by any court, arbitrator or governmental
authority, and neither Seller nor the Station is operating under or subject to
any order, judgment, decree or injunction of any court, arbitrator or
governmental authority, except for those listed in Schedule 3.03. Seller has
complied and is in compliance in all material respects with all laws,
ordinances, regulations, awards, orders, judgments, decrees and injunctions
applicable to Seller, to the Assets, to the Station and to its business and
operations, including all federal, state and local laws, ordinances, regulations
and orders pertaining to employment or labor, safety, health, environmental
protection,
zoning and other matters. Seller has obtained all material permits, licenses and
approvals (none of which has been modified or rescinded and all of which are in
full force and effect) from all governmental authorities necessary in order to
conduct the operation of the Station as presently conducted and to own, use and
maintain the Assets.
3.04 Financial Statements and Condition; Liabilities.
3.04(a) Seller has prepared and/or furnished to Buyer the balance sheets
of Seller as of the dates specified on Schedule 3.04(a), and the statements of
income, stockholders' equity and changes in financial position for the periods
specified on Schedule 3.04(a). All of the financial statements, including,
without limitation, the notes thereto, referred to in Schedule 3.04(a) or
furnished to Buyer after the date hereof pursuant to this Agreement: (i) are in
accordance with the books and records of the Seller, (ii) are true, correct and
complete in all material respects and present fairly the financial position of
Seller as of the respective dates and the results of operations and changes in
cash flow for the respective periods indicated, and (iii) have been prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with prior accounting periods. All deposits and prepaid expenses, if
any, included as assets of Seller represent bona fide deposits or payments
theretofore made by Seller, the benefit and advantage of which will be obtained
and enjoyed by Seller and, after the Closing Date, by Buyer.
3.04(b) Except as reflected in the balance sheets as of , 199 ,
including the notes thereto, there exist no liabilities of Seller, contingent or
absolute, matured or unmatured, known or unknown. Since , 199 , (i) Seller has
not made any contract, agreement or commitment or incurred any obligation or
liability (contingent or otherwise), except in the ordinary course of business
and consistent with past business practices, (ii) there has not been any
discharge or satisfaction of any obligation or liability owed to Seller, which
is not in the ordinary course of business or which is inconsistent with past
business practices, or (iii) there has not occurred any loss or material injury
to the Assets as the result of any fire, accident, act of God or the public
enemy, or other casualty, or any adverse material change in the Assets.
3.05 Assets; Consents.
3.05(a) The Assets to be acquired at the Closing constitute all of the
real, personal, and mixed assets, both tangible and intangible, that are used,
held for use or necessary for the business and operations of the Station as
presently conducted.
3.05(b) Seller is the sole and exclusive legal and equitable owner of
all right, title and interest in and has good, marketable, and insurable title
to the Assets, free and clear of any Encumbrances, except for and subject only
to (i) liens for real estate taxes not yet due and payable, (ii) existing
easements of record on real property which do not materially impair the use of
such property for the purposes contemplated hereunder, and (iii) those
encumbrances set forth in Schedule 3.05(b), which shall be removed prior to or
contemporaneously with the Closing Date.
3.05(c) On the Closing Date, Buyer shall acquire good, marketable and
insurable title to, and all right, title and interest in, the Assets, free and
clear of all Encumbrances, except for and subject only to liens for real estate
taxes not yet due and payable and existing easements of record on real property
which do not materially impair the use of such property for the purposes
contemplated hereunder.
3.05(d) All of the Assets to be transferred hereunder are transferable
by Seller by Seller's sole act and deed, and no consent on the part of any other
person is necessary to validate the transfer to Buyer, except (i) the Licenses
described in Schedule 1(g) are not assignable without the consent of the
Commission as provided by law and (ii) certain of the agreements described in
Schedules 1(b) and 1(i), as specified in Schedule 3.05(d), may be assigned only
with the consent of third parties.
3.05(e) The Property and all of the Improvements have direct and
unobstructed access to all public utilities necessary for the uses to which the
Property and all of the Improvements are presently devoted by Seller and to a
public street. No portion of the Property or any Improvement is the subject of,
or affected by, any condemnation or eminent domain proceedings currently
instituted or pending, and so far as Seller knows, no such proceedings are
threatened. The Property and the Improvements are not subject to any covenant or
other restriction preventing or limiting Seller's right to convey Seller's
right, title and interest in the Property and the Improvements or to use the
Property and the Improvements for the various purposes for which the Property
and the Improvements are being used.
3.06 Condition of Tangible Assets.
All tangible Assets are in good operating condition and repair, and are
suitable, adequate and fit for the uses for which they are intended or are being
used; and the present use of such Assets do not violate in any material respect
any applicable licenses, statutes, or building, fire, zoning, health and safety
or any other laws or regulations. Without limiting the foregoing, such tangible
assets and operations thereof do not result in exposure of workers or the
general public to levels of radio frequency radiation in excess of the "Radio
Frequency Protection Guides" recommended in "American National Standard Safety
Levels With Respect to Human Exposure to Radio Frequency Electromagnetic Fields,
300 KHz to 100 GHz," issued by the American National Standards Institute and
which the Commission has incorporated in its rules and regulations.
3.07 Trademarks; Licenses.
Schedule 1(h) contains a true and complete listing of all franchises,
licenses, trademarks, trade names, copyrights and applications therefor owned or
licensed by or registered in the name of Seller and used or held for use in the
business and operations of the Station, other than the Licenses, all of which
are transferable to Buyer by the sole act and deed of Seller; and no consent on
the part of any other person is necessary to validate the transfer to Buyer.
Seller pays no royalty to anyone under any of the foregoing. Seller owns or
possesses all rights to use all franchises, licenses, service marks, trademarks,
trade names, copyrights, patents and applications therefor necessary to the
conduct of the business of the
Station. Seller does not have any knowledge nor has Seller received any notice
to the effect that any service rendered by Seller relating to the business of
the Station may infringe on any trademark, service ▇▇▇▇, trade name, copyright,
patent, trade secret or legally protectable right of another.
3.08 Licenses.
The Licenses for the Station are valid through April 1, 1997, and there
are no orders, complaints, proceedings or investigations, pending or, so far as
Seller knows, threatened, which would affect the validity of the Licenses.
3.09 Reports and Records.
During the current term of the Licenses, all returns, reports and
statements relating to the Station currently required to be filed by Seller with
the Commission or any other governmental instrumentality have been filed and
complied with and are true, correct and complete in all material respects. All
such reports, returns and statements shall continue to be filed on a current
basis until the Closing Date, and will be true, correct, and complete in all
material respects. During the current term of the Licenses, all documents
required by the Commission's rules to be placed in the Station's public files
have been placed and are being held in such files. During the current term of
the Licenses, all logs and business records of every type and nature relating to
the business and operations of the Station, including but not limited to
political and public record files, program, operating and maintenance logs,
equipment performance measurements, policies or evidence of insurance, licenses,
payroll, social security and withholding tax returns, operator agreements and
other records pertaining to the business and operations of the Station have been
maintained in all material respects in accordance with good business practices
and the rules of the Commission and are at the Station.
3.10 Contracts.
The contracts, agreements and leases set forth and described in
Schedules 1(b), and 1(i) are all of the contracts, agreements, leases and
commitments (both written and oral) relating to the Assets, to the Station or to
the business and operations thereof, other than (i) contracts for the sale of
advertising for cash, which are not for a term longer than thirty (30) days, and
(ii) contracts or commitments which do not require payments of more than $5,000
each or $20,000 in the aggregate. Seller has delivered to Buyer prior to the
execution of this Agreement true and complete copies or descriptions of all
contracts, agreements, leases and commitments (and all amendments and
modifications thereto) relating to the Assets, the Station or to the business
and operations thereof (collectively, the "Station Contracts"). The unperformed
obligations ascertainable from the terms on the face of the Station Contracts
are the existing unperformed obligations thereunder. Each Station Contract is in
full force and effect, and constitutes a valid and binding obligation of, and is
legally enforceable in accordance with its terms against, the parties thereto.
The parties thereto have complied with all of the material provisions of the
Station Contracts and are not in default thereunder, and there has not occurred
any event which (whether with or without notice, lapse of time, or the happening
or occurrence of any other event) would constitute such a default. There has not
been (i) any failure of any party to any Station Contract to
comply with all material provisions thereof, (ii) any default by any party
thereunder, (iii) any threatened cancellation thereof, (iv) any outstanding
dispute thereunder, or (v) any basis for any claim of breach or default
thereunder.
3.11 Conflicts.
Except as set forth in Schedule 3.11, the execution and delivery of this
Agreement and the agreements and instruments called for hereunder, the
fulfillment of and the compliance with the respective terms and provisions of
each, and the consummation of the transactions described in each, do not and
will not conflict with or violate any law, ordinance, regulation, order, award,
judgment, injunction or decree applicable to Seller, to the Assets or to the
Station, or conflict with or result in a breach of or constitute a default under
any of the terms, conditions or provisions of Seller's articles of incorporation
or bylaws, or any contract, agreement, lease, commitment, or understanding to
which Seller is a party or by which Seller is bound or to which any of the
Assets or the Station is subject, or result in the acceleration of any
indebtedness or in the creation of any Encumbrance upon the Assets.
3.12 Related Parties.
Neither Seller nor any shareholder, officer or director of Seller has
any interest whatsoever in any corporation, firm, partnership or other business
enterprise which has had any business transactions with Seller relating to the
Assets or the Station, and no shareholder of Seller has entered into any
transaction with Seller relating to the Assets or the Station, except for those
set forth in Schedule 3.12.
3.13 Taxes.
The Seller has timely filed with all appropriate governmental agencies
all federal, state, commonwealth, local, and other tax or information returns
and tax reports (including, but not limited to, all income tax, unemployment
compensation, social security, payroll, sales and use, profit, excise,
privilege, occupation, property, ad valorem, franchise, license, school and any
other tax under the laws of the United States or of any state or any
commonwealth or any municipal entity or of any political subdivision with valid
taxing authority) due for all periods ended on or before the date hereof. Seller
has paid in full all federal, state, commonwealth, foreign, local and other
governmental taxes, estimated taxes, interest, penalties, assessments and
deficiencies (collectively, "Taxes") which have become due pursuant to such
returns or without returns or pursuant to any assessments received by Seller.
Such returns and forms are true, correct and complete in all material respects,
and Seller has no liability for any Taxes in excess of the Taxes shown on such
returns. Seller is not a party to any pending action or proceeding, and, to
Seller's knowledge, there is no action or proceeding threatened by any
government or authority against Seller for assessment or collection of any
Taxes, and no unresolved claim for assessment or collection of any Taxes has
been asserted against Seller.
3.14 Employee Benefit Plans.
3.14(a) Except as described in Schedule 3.14(a), neither Seller nor any
Affiliates (as defined below) have at any time established, sponsored,
maintained,
or made any contributions to, or been parties to any contract or other
arrangement or been subject to any statute or rule requiring them to establish,
maintain, sponsor, or make any contribution to, (1) any "employee pension
benefit plan" (as defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended, and regulations thereunder ("ERISA"))
("Pension Plan"); (ii) any "employee welfare benefit plan" (as defined in
Section 3(1) of ERISA) ("Welfare Plan"); or (iii) any deferred compensation,
bonus, stock option, stock purchase, or other employee benefit plan, agreement,
commitment, or arrangement ("Other Plan"). Seller and the Affiliates have no
obligations or liabilities (whether accrued, absolute, contingent, or
unliquidated, whether or not known, and whether due or to become due) with
respect to any "employee benefit plan" (as defined in Section 3(3) of ERISA) or
Other Plan that is not listed in Schedule 3.14(a). For purposes of this Section
3.14, the term "Affiliate" shall include all persons under common control with
Seller within the meaning of Sections 4001(a)(14) or (b)(1) of ERISA or any
regulations promulgated thereunder, or Sections 414(b), (c), (m) or (o) of the
Internal Revenue Code of 1986, as amended (the "Code").
3.14(b) Each plan or arrangement listed in Schedule 3.14(a) (and any
related trust or insurance contract pursuant to which benefits under such plans
or arrangements are funded or paid) has been administered in all respects in
full compliance with its terms and in both form and operation is in compliance
with applicable provisions of ERISA, the Code, the Consolidated Omnibus Budget
Reconciliation Act of 1986 and regulations thereunder, and other applicable law.
Each Pension Plan listed in Schedule 3.14(a) has been determined by the Internal
Revenue Service to be qualified under Section 401(a) and, if applicable, Section
401(k) of the Code, and nothing has occurred or been omitted since the date of
the last such determination that resulted or could result in the revocation of
such determination. Seller and the Affiliates have made all required
contributions or payments to or under each plan or arrangement listed in
Schedule 3.14(a) on a timely basis and have made adequate provision for reserves
to meet contributions and payments under such plans or arrangements that have
not been made because they are not yet due.
3.14(c) The consummation of this Agreement (and the employment by Buyer
of former employees of Seller or any employees of an Affiliate) will not result
in any carryover liability to Buyer for taxes, penalties, interest or any other
claims resulting from any employee benefit plan (as defined in Section 3(3) of
ERISA) or Other Plan. In addition, Seller and each Affiliate make the following
representations (i) as to all of their Pension Plans: (A) neither Seller nor any
Affiliate has become liable to the PBGC under ERISA under which a lien could
attach to the assets of Seller or an Affiliate; (B) Seller and each Affiliate
has not ceased operations at a facility so as to become subject to the
provisions of Section 4062(e) of ERISA; and (C) Seller and each Affiliate has
not made a complete or partial withdrawal from a multiemployer plan (as defined
in Section 3(37) of ERISA) so as to incur withdrawal liability as defined in
Section 4201 of ERISA, and (ii) all group health plans maintained by the Seller
and each Affiliate have been operated in compliance with Section 4980B(f) of the
Code.
3.14(d) The parties agree that Buyer does not and will not assume the
sponsorship of, or the responsibility for contributions to, or any liability in
connection with, any Pension Plan, any Welfare Plan, or Other Plan maintained by
Seller or an Affiliate for its employees, former employees, retirees, their
beneficiaries or any other person. In addition and not as a limitation of the
foregoing covenant, the parties agree that Seller and such Affiliate shall be
liable for any continuation coverage (including any penalties, excise taxes or
interest resulting from the failure to provide continuation coverage) required
by Section 4980B of the Code due to qualifying events which occur on or before
Closing Date.
3.15 Environmental Matters.
3.15(a) For purposes of this section, "Hazardous Materials" means any
wastes, substances, or materials, whether solids, liquids or gases, that are
deemed hazardous, toxic, pollutants, or contaminants, including but not limited
to substances defined as "hazardous wastes," "hazardous substances," "toxic
substances," "radioactive materials," or other similar designations in, or
otherwise subject to regulation under, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, ("CERCLA") as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("▇▇▇▇"), 42 U.S.C. 9601 et seq.; the
Toxic Substance Control Act ("TSCA"), 15 U.S.C. 2601 et seq.; the Hazardous
Materials Transportation Act, 49 U.S.C. 1802 et seq.; the Resource Conservation
and Recovery Act ("RCRA"), 42 U.S.C. 9601 et seq.; the Clean Water Act ("CWA"),
33 U.S.C. 1251 et seq.; the Safe Drinking Water Act, 42 U.S.C. 300f et seq.; the
Clean Air Act ("CAA"), 42 U.S.C. 7401 et seq.; or other applicable federal,
state, or local laws, including any plans, rules, regulations, orders, or
ordinances adopted, or other criteria and guidelines promulgated pursuant to the
preceding laws or other similar laws, regulations, rules, orders, or ordinances
now or hereafter in effect relating to the protection of human health and the
environment (collectively "Environmental Laws"). "Hazardous Materials" includes
but is not limited to polychlorinated biphenyls (PCBs), asbestos and lead-based
paints.
3.15(b) Seller's Environmental Representations and Warranties. Seller
hereby represents and warrants that except as set forth on Schedule 3.15(b):
(i) There are no pending or, to Seller's knowledge threatened,
actions, suits, claims, legal proceedings or any other proceedings based on
Hazardous Materials or the Environmental Laws at the Property, or any part
thereof, or otherwise arising from Seller's activities at the Property involving
Hazardous Materials;
(ii) To Seller's knowledge, there are no conditions, facilities,
procedures or any other facts or circumstances which could give rise to claims,
expenses, losses, liabilities, or governmental action against Buyer in
connection with any Hazardous Materials present at or disposed of from the
Property, including without limitation the following conditions arising out of,
resulting from, or attributable to, the assets, business, or operations of
Seller at the Property: (A) the presence of any Hazardous Materials on the
Property or the release or threatened release of any Hazardous Materials into
the environment
from the Property; (B) the off-site disposal of Hazardous Materials originating
on or from the Property or the business or operations of Seller; (C) the release
or threatened release of any Hazardous Materials into any storm drain, sewer,
septic system or publicly owned treatment works; (D) any noncompliance with
federal, state or local requirements governing occupational safety and health,
or presence or release in the air and water supply systems of the Property of
any substances that pose a hazard to human health or an impediment to working
conditions; or (E) any facility operations, procedures or designs, which do not
conform to the statutory or regulatory requirements of any Environmental Laws.
(iii) To Seller's knowledge, neither polychlorinated biphenyls
nor asbestos-containing materials are present on or in the Property.
(iv) The Property contains no underground storage tanks,
or underground piping associated with tanks, used currently or, to Seller's
knowledge, in the past for the management of Hazardous Materials.
3.16 Labor Relations.
There are no strikes, work stoppages, grievance proceedings,
union organization efforts, or other controversies pending or threatened between
Seller and any of its employees or agents or any union or collective bargaining
unit. Seller has complied and is in compliance in all material respects with all
laws and regulations relating to the employment of labor, including without
limitation provisions relating to wages, hours, collective bargaining,
occupational safety and health, equal employment opportunity, and the
withholding of income taxes and social security contributions. Except as set
forth in Schedule 3.16 hereto, there are no collective bargaining agreements or
employment agreements between Seller and any of its employees. The consummation
of the transactions contemplated hereby will not cause Buyer to incur or suffer
any liability relating to, or obligation to pay, severance, termination, or
other payments to any person or entity. Except as set forth in Schedule 3.16
hereto, no employee of Seller has any contractual right to continued employment
by Seller following consummation of the transactions contemplated by this
Agreement. Seller has previously delivered to Buyer an accurate and complete
list, a date no more than fourteen (14) days prior to the date of this
Agreement, of all employees of Seller and the rate of compensation (including
salary, bonuses and commissions) of each such employee.
3.17 Broadcast of Programming
The motion pictures, feature films, and syndicated programs for
which Seller has obtained broadcast rights have been scheduled and broadcast in
the ordinary course of business, consistent with Seller's past business
practices and with customary practices in the television broadcast industry.
3.18 Insurance.
Schedule 3.18 contains a list and brief description of all
policies of title, property, fire, casualty, liability, life, workmen's
compensation, business interruption and other forms of insurance of any kind
relating to the Assets or the business and operations of the Station and owned
or held by Seller. All such policies: (i) are in full force and effect; (ii) are
sufficient for compliance in all material respects
by Seller with all requirements of law and of all agreements to which Seller is
a party; (iii) are valid, outstanding, and enforceable policies; and (iv) insure
against risks of the kind customarily insured against and in amounts customarily
carried by corporations similarly situated and provide adequate insurance
coverage for the Assets and the Station (including the business and operations
thereof).
3.19 Disclosure.
All facts of material importance to the Assets, to the Station
and to the business of Seller have been fully and truthfully disclosed to Buyer
in this Agreement. No representation or warranty by Seller and no document,
statement, certificate, schedule or exhibit to be furnished or delivered to
Buyer pursuant to or in connection with this Agreement contains or will contain
any material untrue or misleading statement of fact or omits or will omit any
fact necessary to make the statements contained herein or therein not materially
misleading.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES BY BUYER
Buyer represents, warrants and covenants to Seller as follows:
4.01 Organization and Standing.
Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and by the Closing Date
will be duly qualified to do business as a foreign corporation in Alabama. Buyer
has the full and unrestricted power and authority, corporate and otherwise, to
enter into and perform the terms of this Agreement, the agreements and
instruments referred to herein, and the transactions contemplated hereby and
thereby.
4.02 Authorization.
The execution, delivery and performance of this Agreement and of
the agreements and instruments called for hereunder, and the consummation of the
transactions contemplated hereby and thereby, have been duly and validly
authorized by all necessary actions of Buyer (none of which actions has been
modified or rescinded and all of which actions are in full force and effect).
This Agreement constitutes, and upon execution and delivery each other agreement
and instrument will constitute, a valid and binding agreement and obligation of
Buyer, enforceable in accordance with its respective terms. Except for the
consent of the Commission to the assignment to Buyer of the Licenses described
in Schedule 1(g), the pre-merger notification clearance required under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and any
consents which may be required from certain lenders of Buyer as described in
Schedule 4.02, the execution, delivery and performance by Buyer of this
Agreement and the agreements and instruments called for hereunder will not
require the consent, approval or authorization of any person, entity or
governmental authority.
4.03 Qualification as Licensee.
Except for possible contour overlap with television station
WCFT-TV, Tuscaloosa, Alabama, Buyer knows of no reason why it should not be
found by the Commission to be qualified under the Communications Act of 1934, as
amended, and the Commission's rules and regulations to become the licensee of
the Station.
ARTICLE 5.
APPLICATION FOR COMMISSION CONSENT
As promptly as practicable and no later than ten (10) business
days following the execution of this Agreement, Seller and Buyer shall take all
steps reasonably necessary to file and shall participate in the filing of
applications with the Commission (the "Applications") requesting its written
consent to the assignment of the Licenses for the Station (and any extensions
and renewals thereof) from Seller to Buyer. Seller and Buyer will diligently
take all necessary and proper steps, provide any additional information
reasonably requested, and otherwise use their best efforts in order to obtain
promptly the requested consent and approval of the Applications by the
Commission; provided that neither of the parties hereto shall have any
obligation to take any unreasonable steps to satisfy complainants, if any, or to
participate in any evidentiary hearing (other than a hearing at which only oral
argument is to be presented).
ARTICLE 6.
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
As promptly as practicable and no later than thirty (30) days
following the execution of this Agreement, Seller and Buyer shall complete any
filing that may be required pursuant to the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended, or shall mutually agree that no such
filing is required. Seller and Buyer shall diligently take all necessary and
proper steps and provide any additional information reasonably requested in
order to comply with the requirements of such Act.
ARTICLE 7.
COVENANTS AND AGREEMENTS OF SELLER
Seller covenants and agrees with Buyer as follows:
7.01 Negative Covenants.
Pending and prior to the Closing, Seller will not, without the
prior written approval of Buyer, do or agree to do any of the following:
7.01(a) Dispositions; Mergers. Sell, assign, lease or otherwise
transfer or dispose of any of the Assets or merge or consolidate with or into
any other entity or enter into any negotiations or agreements relating thereto;
provided, however, Seller may sell, assign, lease or otherwise transfer or
dispose of any asset described in Schedule 1(f) if such asset is expended in the
ordinary course of business, consistent with Seller's past business practices
and with customary practices in the television broadcast industry, and property
or equipment of like kind and equivalent value is substituted therefor.
7.01(b) Accounting Principles and Practices. Change or modify any
of Seller's accounting principles or practices or any method of applying such
principles or practices.
7.01(c) Trade-Outs. Enter into any trade-out agreement, or
similar contract, commitment or understanding to provide broadcast time, except
those
which are in the ordinary course of business and consistent with Seller's past
business practices and the TBA and which can be and are performed completely
prior to the Closing Date.
7.01(d) Broadcast Time Agreements. Enter into any broadcast time
sales agreement, contract, commitment or understanding except those that are in
the ordinary course of business and consistent with customary practices in the
television broadcast industry and the TBA.
7.01(e) Local Marketing Arrangements. Except for the TAB, acquire
or enter into any local marketing arrangements, time brokerage agreements or
other similar contracts.
7.01(f) Program Contracts. Acquire or enter into any new program
contracts or renew, extend, amend, alter, modify or otherwise change any
existing program contract, except that Seller may enter into new program
contracts, consistent with the terms of the TBA, which have a term of less than
six months.
7.01(g) Additional Agreements. Materially modify or amend any of
the agreements listed in Schedule 3.05(d) which are marked by an asterisk or
enter into any other agreements, contracts, leases, commitments, understandings,
or licenses (collectively, "Additional Agreements") or incur any obligation or
liability (contingent or absolute); provided, however, that Seller may enter
into trade-out agreements, broadcast time agreements and program contracts
consistent with this Section 7.01 and the terms of the TBA; and that any
Additional Agreements are entered into in the ordinary course of business
consistent with Seller's past business practices and customary practices in the
television broadcast industry, so long as such Additional Agreements do not
involve payments or obligations in excess of One Million Dollars ($1,000,000)
for all such Additional Agreements in the aggregate.
7.01(h) Breaches; Employment Contracts. Do or omit to do any act
(or permit such action or omission) which will cause a material breach of any
Station Contract; enter into or become subject to any employment, labor or union
contract, any professional service contract not terminable at will, or any
bonus, pension, insurance, profit sharing, deferred compensation, severance pay,
retirement, hospitalization, employee benefit, or other similar plan; increase
the compensation payable or to become payable to any employee; or pay or arrange
to pay any bonus payment to any employee.
7.01(i) Actions Affecting Licenses or Contracts. Take any action
which under existing law may reasonably be expected to have a material adverse
effect on the validity or enforceability of or rights under the Licenses or any
material lease or contract.
7.01(j) Programming. Program or broadcast any motion picture,
feature film or syndicated program, except in the ordinary course of business,
within the terms of the TBA and consistent with Seller's past business
practices.
7.01(k) Accounts. Accelerate the collection of or sell or assign
any accounts receivable, or decelerate the payment of accounts payable, except
in order to conform with Seller's past business practices and the terms of the
TBA.
7.02 Affirmative Covenants.
Pending and prior to the Closing Date, Seller will:
7.02(a) Preserve Existence. Preserve its corporate existence and
business organization intact, maintain its existing franchises and licenses, use
its reasonable best efforts to preserve for Buyer its relationships with
suppliers, customers, employees and others having business relations with
Seller, and keep all Assets in their present condition, ordinary wear and tear
excepted.
7.02(b) Normal Operations. Subject to the terms and conditions of
this Agreement (including, without limitation, Section 7.01) and the terms and
conditions of the TBA: (i) carry on the business and activities of the Station,
including without limitation, the sale of advertising time, entering into trade
or barter arrangements, entering into other agreements, leases, commitments or
understandings, or purchasing and scheduling of programming, in the usual and
ordinary course of business consistent with Seller's past business practices and
with customary practices in the television broadcast industry; (ii) pay or
otherwise satisfy all obligations (cash and barter) of the Station as they come
due and payable; (iii) maintain all of its properties in customary repair, order
and condition; and (iv) maintain its books of account, records, and files in
substantially the same manner as heretofore.
7.02(c) Maintain Licenses. Maintain the validity of the Licenses,
and comply in all material respects with all rules and regulations of the
Commission.
7.02(d) Payables. Pay all of its obligations, including, without
limitation, obligations under the Station Contracts and under any such contracts
that shall be entered into between the date hereof and the Closing pursuant to
Section 7.01, as and when they become due and payable.
7.02(e) Corporate Action. Take all corporate action under the law
of the State of Delaware necessary to effectuate the transactions contemplated
by this Agreement and by the agreements and instruments called for hereunder.
7.02(f) Transfer Tax; Bulk Sales. Take all necessary action to
provide for the payment of all applicable state sales, transfer or use taxes,
and to comply with all applicable bulk transfer and similar laws, in connection
with the transactions contemplated by this Agreement and the agreements and
instruments called for hereunder.
7.02(g) Access. Give to Buyer and Buyer's authorized
representatives full and complete access upon reasonable notice during normal
business hours to Seller's properties, books, records, contracts, commitments,
facilities, premises, and equipment and to Seller's officers and employees.
7.02(h) Other Information. Provide to Buyer all such other
information and copies of documents concerning Seller, the operation of the
Station, the Assets, and Seller's customers and suppliers as Buyer may request.
7.02(i) Insurance. Maintain in full force and effect all of its
existing casualty, liability, and other insurance through the day following the
Closing Date in amounts not less than those in effect on the date hereof.
7.02(j) Financial Statements. Provide Buyer with (i) unaudited
monthly balance sheets, and statements of revenues and expenses reflecting the
results of business and operations of the Station and of Seller for the month
preceding the date of this Agreement and for each month thereafter, within
twenty (20) days of the end of each such month; and (ii) with unaudited
statements of assets and liabilities and statements of revenues and expenses
reflecting the results of the business and operations of the Station for the
preceding twelve (12) months, within thirty (30) days of the end of the fiscal
year. All of the foregoing financial statements shall comply with the
requirements concerning financial statements set forth in Section 3.04.
7.02(k) Interruption in Broadcast Operations. Promptly notify
Buyer in writing if any Station ceases to broadcast at its authorized power for
more than 48 consecutive hours.
7.02(l) Consents. Obtain third party consents to assign to Buyer
those agreements on Schedule 3.05(d) which are marked with an asterisk and use
its best efforts to obtain third party consents for assignment of all other
agreements listed on Schedule 3.05(d).
7.03 Removal of Materials.
Any building materials or other items located in or around the
Property which qualify as Hazardous Wastes or Toxic Substances shall immediately
be removed from the Property at Seller's cost and expense.
7.04 Confidentiality.
Seller will use its best efforts to maintain strict
confidentiality with respect to all documents and information furnished to
Seller by or on behalf of Buyer; provided, however, that Seller shall have no
such obligations with respect to confidential information that (i) is a matter
of public knowledge or (ii) has been or is hereafter publicly disclosed other
than by or through Seller. In the event this Agreement is terminated, Seller
will return to Buyer all documents, drafts, work papers, and other material
prepared or furnished by Buyer relating to the transactions contemplated
hereunder, whether obtained before or after the execution of this Agreement.
7.05 Employees.
For a period commencing upon the execution of this Agreement and
ending twelve (12) months following the Closing Date, Seller and its affiliates
will not offer employment elsewhere than at the Station to any employee of
Seller currently employed at the Station without the prior written approval of
Buyer.
ARTICLE 8.
COVENANTS AND AGREEMENTS OF BUYER
Buyer covenants and agrees with Seller as follows:
8.01 Confidentiality.
Buyer will maintain strict confidentiality with respect to all
documents and information furnished to Buyer by or on behalf of Seller;
provided, however, that Buyer shall have no such obligations with respect to
confidential information that (i) is a matter of public knowledge or (ii) has
been or is hereafter publicly disclosed other than by or through Buyer. In the
event this Agreement is terminated, Buyer will return to Seller all copies in
its possession of documents, drafts, work papers, and other material prepared or
furnished by Seller relating to
the transactions contemplated hereunder, whether obtained before or after the
execution of this Agreement and the agreements and instruments called for
hereunder.
8.02 Corporate Action.
Prior to the Closing, Buyer shall take all corporate action under
the law of the State of Delaware necessary to effectuate the transactions
contemplated by this Agreement and by the agreements and instruments called for
hereunder.
ARTICLE 9.
CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
The obligations of Buyer to purchase the Assets and to proceed
with the Closing are subject to the satisfaction (or waiver by Buyer) at or
prior to the Closing of each of the following conditions:
9.01 Representations and Covenants.
The representations and warranties of Seller made herein or in
any agreement, instrument or document called for hereunder shall have been true
and correct when made and shall be true and correct on the Closing Date as
though such representations and warranties were made on and as of the Closing
Date, and Seller shall have performed and complied with all covenants and
agreements required by this Agreement to be performed or complied with by Seller
prior to the Closing Date.
9.02 Consents.
Seller shall have obtained prior to the Closing Date all consents
necessary to effect valid assignments to Buyer of those contracts on Schedule
3.05(d) which are marked with an asterisk and all other consents necessary to
consummate the transactions contemplated hereby (except for the FCC Order which
shall be governed by Section 9.04).
9.03 Delivery of Documents.
Seller shall have delivered to Buyer all agreements, instruments
and documents required to be delivered by Seller to Buyer pursuant to Section
11.02.
9.04 FCC Order.
The FCC Order shall have become a Final Order with respect to the
Station.
9.05 Title Insurance Commitment and Survey.
Buyer shall have received the Title Insurance Commitment and
Survey referred to in Section 1 for the real property described in Schedule
1(a), in form and substance satisfactory to Buyer.
9.06 Legal Proceedings.
No action or proceeding by or before any governmental authority
shall have been instituted or threatened (and not subsequently dismissed,
settled or otherwise terminated) which might restrain, prohibit or invalidate
the transactions contemplated by this Agreement (other than an action or
proceeding instituted or threatened by Buyer).
9.07 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇.
All applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust
Improvements Act of 1976, as amended, shall have expired.
9.08 Absence of Material Change.
Neither the Station nor the Assets shall have suffered a material
adverse change since the date hereof, and there shall have been no changes since
the date hereof in the business, operations, prospects, condition (financial or
otherwise), properties, assets or liabilities of Seller, of the Station or of
the Assets (regardless of whether or not such events or changes are consistent
with the representations and warranties given herein by Seller), except changes
contemplated by this Agreement and changes in the ordinary course of business
which are not (either individually or in the aggregate) materially adverse.
ARTICLE 10.
CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE.
The obligation of Seller to sell, transfer, convey and deliver
the Assets and to proceed with the Closing are subject to the satisfaction (or
waiver by Seller) at or prior to the Closing of each of the following
conditions:
10.01 Representations and Covenants.
The representations and warranties of Buyer made in this
Agreement or in any agreement, instrument or document called for hereunder shall
have been true and correct when made and shall be true and correct on the
Closing Date as though such representations and warranties were made on and as
of the Closing Date, and Buyer shall have performed and complied with all
covenants and agreements required to be performed or complied with by Buyer
prior to the Closing Date.
10.02 Delivery of Documents.
Buyer shall have delivered to Seller the Purchase Price and all
agreements, instruments and documents required to be delivered by Buyer to
Seller pursuant to Section 11.03.
10.03 FCC Order.
The FCC Order shall have been issued with respect to the Station.
10.04 Legal Proceedings.
No action or proceeding by or before any governmental authority
shall have been instituted or threatened (and not subsequently dismissed,
settled, or otherwise terminated) that might restrain, prohibit or invalidate
the transactions contemplated by this Agreement, other than an action or
proceeding instituted or threatened by Seller.
10.05 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇.
All applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended, shall have expired.
ARTICLE 11.
THE CLOSING
11.01 Closing.
Unless otherwise agreed by the parties hereto, the Closing
hereunder shall be held on a date specified by Buyer within ten (10) days
following the date
that the FCC Order becomes a Final Order. The Closing shall be held at 10:00
A.M. local time at the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ in Washington, D.C. or at such
other time and place as the parties may agree.
11.02 Delivery by Seller.
At or before the Closing, Seller shall deliver to Buyer the following:
11.02(a) Agreements and Instruments. The following bills of sale,
statements, assignments and other instruments of transfer, dated as of the
Closing Date, in form sufficient to transfer and convey to Buyer title (of the
quality provided for in this Agreement) to the Assets:
(i) the Assignment of Leases;
(ii) the ▇▇▇▇ of Sale;
(iii) the Assignment of Licenses;
(iv) the Assignment of Contracts;
(v) the Deed; and
(vi) such other instruments or documents as Buyer or Buyer's
senior lender may reasonably request.
11.02(b) Consents. Copies of all consents necessary to effect
valid assignments to Buyer of all of the agreements listed on Schedule 3.05(d)
which are marked with an asterisk and any other consents Seller has been able to
obtain.
11.02(c) Certificate Concerning Interim Agreements. A certificate
of Seller describing all broadcast time sales agreements made, all trade- out
agreements entered into, and all other contracts, agreements and leases entered
into by Seller between the date hereof and the Closing Date, and certifying that
such agreements, contracts and leases were entered into in accordance with
Section 7.01.
11.02(d) Corporate Resolutions. Copies of the resolutions of
directors and shareholders of Seller, certified as being correct and complete
and then in full force and effect, authorizing the execution, delivery and
performance of this Agreement and the agreements and instruments called for
hereunder, and the consummation of the transactions contemplated hereby and by
such agreements and instruments.
11.02(e) Officers' Certificate. A certificate of Seller signed by
the President and the Secretary of Seller certifying that the representations
and warranties of Seller made herein were true and correct in all material
respects as of the date of this Agreement and are true and correct in all
material respects as of the Closing Date, and that Seller has performed and
complied with all covenants and agreements required to be performed or complied
with by Seller on or prior to the Closing Date.
11.02(f) Opinion of Counsel. An opinion of counsel for Seller,
dated the Closing Date, addressed to Buyer and to Buyer's lender, substantially
in the form attached hereto as Exhibit F.
11.02(g) Seller's IRS Form 8594. Internal Revenue Service Form
8594 completed by Seller in connection with the acquisition of the Assets by
Buyer. 11.03 Delivery by Buyer.
At or before the Closing, Buyer shall deliver to Seller the
following:
11.03(a) Purchase Price.
(i) The Purchase Price in the amount and manner set forth in
Section 2.
11.03(b) Assumption Agreement. The Assumption Agreement.
11.03(c) Corporate Resolutions. Copies of the resolutions of the
directors of Buyer, certified as being correct and complete and then in full
force and effect, authorizing the execution, delivery and performance of this
Agreement and the agreements and instruments called for hereunder, and the
consummation of the transactions contemplated by this Agreement and by such
agreements and instruments.
11.03(d) Officers' Certificate. A certificate of Buyer signed by
the President and the Secretary of Buyer certifying that the representations and
warranties of Buyer made herein were true and correct in all material respects
as of the date of this Agreement and are true and correct in all material
respects as of the Closing Date, and that Buyer has performed and complied with
all covenants and agreements required to be performed or complied with by Buyer
prior to the Closing Date.
11.03(e) Buyer's IRS Form 8594. Internal Revenue Service Form
8594 completed by Buyer in connection with the acquisition of the Assets by
Buyer.
ARTICLE 12.
ALLOCATION OF PURCHASE PRICE AMONG ASSETS
Seller and Buyer each represent, warrant, covenant, and agree
with each other that the Purchase Price shall be allocated among the Assets, as
set forth in an appraisal of the tangible assets to be performed prior to the
Closing (at Buyer's sole expense) by Bond & ▇▇▇▇▇▇, for purposes of all federal,
state and other income tax returns filed by it or other tax payments made by it.
Notwithstanding any other provision of this Agreement, the provisions of this
Section 12 shall survive the Closing Date without limitation.
ARTICLE 13.
POSSESSION AND CONTROL
Between the date hereof and the Closing Date, Buyer shall not
directly or indirectly control, supervise or direct, or attempt to control,
supervise or direct, the business and operations of the Station, and such
operation, including complete control and supervision of all programs, shall be
the sole responsibility of Seller; provided, however, Buyer shall be entitled to
inspect the Assets as provided in Section 7.02(h) so that an uninterrupted and
efficient transfer of ownership may be effected. On and after the Closing Date,
Seller shall have no control over, or right to intervene or participate in, the
business and operations of the Station.
ARTICLE 14.
RISK OF LOSS
The risk of loss or damage by fire or other casualty or cause to
the Assets until the Closing Date shall be upon Seller. In the event of such
loss or
damage prior to the Closing Date, Seller shall promptly restore, replace or
repair the damaged Assets to their previous condition at Seller's sole cost and
expense. In the event such loss or damage shall not be restored, replaced, or
repaired as of the Closing Date, Buyer shall, at its option, either (a) proceed
with the Closing and receive all insurance proceeds to which Seller would be
entitled as a result of such loss or damage (provided, however, if such proceeds
do not equal the loss, Seller shall pay the deficiency to Buyer), or (b) defer
the Closing Date until such restorations, replacements or repairs are made
(provided that no such deferral shall affect the right of Buyer to terminate
this Agreement pursuant to the provisions of Section 16).
ARTICLE 15.
SURVIVAL; INDEMNIFICATION
15.01 Survival of Seller's Representations.
Except as otherwise specified, the representations and warranties
made by Seller in this Agreement or pursuant hereto shall survive the Closing
Date for a period of two (2) years, provided that Sections 3.13 and 3.15 shall
survive the Closing Date for a period equal to the applicable statute of
limitations and Section 3.05(b) shall survive without limitation as to time, and
the representations and warranties made by Seller shall also survive and shall
be unaffected by (and shall not be deemed waived by) any investigation, audit,
appraisal, or inspection at any time made by or on behalf of Buyer.
15.02 Indemnification by Seller.
Subject to the conditions and provisions of Section 15.05, Seller
agrees to indemnify, defend and hold harmless Buyer, Buyer's employees, managers
and directors ("Buyer Indemnified Parties") from and against and in respect of
any and all demands, claims, complaints, actions or causes of action, suits,
proceedings, investigations, arbitrations, assessments, losses, damages,
liabilities, costs and expenses, including, but not limited to, interest,
penalties and attorneys' fees and disbursements, asserted against, imposed upon
or incurred by Buyer Indemnified Parties, directly or indirectly, by reason of
or resulting from (a) any liability, obligation, or claim against Seller
(whether absolute, accrued, contingent or otherwise and whether a contractual,
tax or any other type of liability or obligation or claim) not expressly assumed
by Buyer pursuant to Section 2.04, arising out of, relating to or resulting from
the business of Seller, or relating to or resulting from the Assets or the
business and operations of the Station during the period prior to the Closing
Date; (b) any misrepresentation or breach of the representations and warranties
of Seller contained in or made pursuant to this Agreement; or (c) any
noncompliance by Seller with any covenants, agreements or undertakings of Seller
contained in or made pursuant to this Agreement.
15.03 Survival of Buyer's Representations.
The representations and warranties made by Buyer in this
Agreement or pursuant hereto shall survive the Closing Date for a period of two
(2) years, and shall also survive and shall be unaffected by (and shall not be
deemed waived by) any investigation, audit, appraisal or inspection at any time
made by or on behalf of
Seller.
15.04 Indemnification by Buyer.
Subject to the conditions and provisions of Section 15.05, Buyer
hereby agrees to indemnify, defend and hold harmless Seller, Seller's employees,
managers and directors ("Seller Indemnified Parties") from and against all
demands, claims, actions or causes of action, assessments, losses, damages,
liabilities, costs and expenses, including, but not limited to, interest,
penalties and attorneys' fees and disbursements, asserted against, imposed upon
or incurred by Seller Indemnified Parties, directly or indirectly, by reason of
or resulting from (a) any liability, obligation, or claims against Seller
Indemnified Parties (whether absolute, accrued, contingent or otherwise and
whether contractual, tax or any other type of liability or obligation or claim)
expressly assumed by Buyer hereunder; (b) any misrepresentation or breach of the
representations and warranties of Buyer contained in or made pursuant to this
Agreement; or (c) any noncompliance by Buyer with any covenants, agreements or
undertakings of Buyer contained in or made pursuant to this Agreement.
15.05 Conditions of Indemnification.
The obligations and liabilities of Seller and of Buyer hereunder
with respect to their respective indemnities pursuant to this Section 15,
resulting from any claim or other assertion of liability by third parties
(hereinafter called collectively, "Claims"), shall be subject to the following
terms and conditions:
15.05(a) The party seeking indemnification (the "Indemnified
Party") must give the other party or parties, as the case may be (the
"Indemnifying Party"), notice of any such Claim promptly after the Indemnified
Party receives notice thereof.
15.05(b) The Indemnifying Party shall have the right to
undertake, by counsel or other representatives of its own choosing, the defense
of such claim.
15.05(c) In the event that the Indemnifying Party shall elect not
to undertake such defense, or within a reasonable time after notice of any such
Claim from the Indemnified Party shall fail to defend, the Indemnified Party
(upon further written notice to the Indemnifying Party) shall have the right to
undertake the defense, compromise or settlement of such Claim, by counsel or
other representatives of its own choosing, on behalf of and for the account and
risk of the Indemnifying Party (subject to the right of the Indemnifying Party
to assume defense of such Claim at any time prior to settlement, compromise or
final determination thereof).
15.05(d) Anything in this Section 15.05 to the contrary
notwithstanding, (i) if there is a reasonable probability that a Claim may
materially and adversely affect the Indemnified Party other than as a result of
money damages or other money payments, the Indemnified Party shall have the
right, at its own cost and expense, to participate in the defense, compromise or
settlement of the Claim, (ii) the Indemnifying Party shall not, without the
Indemnified Party's written consent, settle or compromise any Claim or consent
to entry of any judgment which does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified Party of a
release from all liability
in respect of such Claim, and (iii) in the event that the Indemnifying Party
undertakes defense of any Claim, the Indemnified Party, by counsel or other
representative of its own choosing and at its sole cost and expense, shall have
the right to consult with the Indemnifying Party and its counsel or other
representatives concerning such Claim and the Indemnifying Party and the
Indemnified Party and their respective counsel or other representatives shall
cooperate with respect to such Claim.
ARTICLE 16.
TERMINATION
If (i) an FCC Order has not become a Final Order and/or the
Closing has not occurred on or before the tenth anniversary of the date of the
Option Agreement, (ii) the Commission designates the Application contemplated by
Section 5 for an evidentiary hearing, or (iii) the Commission issues an order in
connection with such application with conditions which are adverse to Buyer or
which in any way diminish the operating rights with respect to the Assets and
the Station (except any such conditions expressly accepted by Buyer in writing),
then in any such event Buyer may, upon written notice to the Seller, terminate
this Agreement without any further obligation to the Seller hereunder, provided,
that such notice of termination is given prior to the date of the Closing or the
date on which such FCC Order shall have become a Final Order. If the Closing has
not occurred on or before the tenth anniversary of the date of the Option
Agreement, then in such event Seller may, upon written to the Buyer, terminate
this Agreement without any further obligation to the Buyer hereunder, provided,
that, such notice of termination is given prior to the date of the Closing and
the Seller is not in material default at such time. Upon termination of this
Agreement pursuant to this Section 16, this Agreement shall be deemed null,
void, and of no further force and effect (except for the provisions of Sections
7.04, 8.01, and 21, which shall survive such termination).
ARTICLE 17.
REMEDIES
17.01 Default by Buyer.
If Buyer shall default in the performance of its obligations
under this Agreement in any material respect or if, as a result of Buyer's
action or failure to act, the conditions precedent to Seller's obligation to
close specified in Section 10 are not satisfied, and for such reason or reasons
this Agreement is not consummated, and provided that Seller shall not then be in
default in the performance of Seller's obligations hereunder, Seller shall be
entitled, by written notice to Buyer, to terminate this Agreement and to pursue
any other remedies Seller has at law or in equity or otherwise.
17.02 Default by Seller.
If Seller shall default in the performance of Seller's
obligations under this Agreement in any material respect, or if, as a result of
Seller's action or failure to act, the conditions precedent to Buyer's
obligation to close specified in Section 9
are not satisfied and for such reason or reasons this Agreement is not
consummated, or if Seller fails to operate the Station at its authorized power
for longer than 48 consecutive hours, and provided that Buyer shall not then be
in default in any material respect in the performance of Buyer's obligations
hereunder, Buyer shall be entitled, at Buyer's sole option:
(i) To require Seller to consummate and specifically perform the
sale in accordance with the terms of this Agreement, if necessary through
injunction or other court order or process; or
(ii) By written notice to Seller, to terminate this Agreement and
to pursue any other remedies Buyer has at law or in equity or otherwise.
17.03 Specific Performance.
Seller acknowledges that the Assets to be sold and delivered to
Buyer pursuant to this Agreement are unique and that Buyer has no adequate
remedy at law if Seller shall fail to perform any of their obligations
hereunder, and Seller therefore confirms and agrees that Buyer's right to
specific performance is essential to protect the rights and interests of Buyer.
Accordingly, in addition to any other remedies which Buyer may have hereunder or
at law or in equity or otherwise, Seller hereby agrees that Buyer shall have the
right to have all obligations, undertakings, agreements and other provisions of
this Agreement specifically performed by Seller and that Buyer shall have the
right to obtain an order or decree of such specific performance in any of the
courts of the United States or of any state or other political subdivision
thereof.
ARTICLE 18.
GUARANTEE
18.01 ▇▇▇▇▇▇ Communications Corp. ("Guarantor") hereby
irrevocably and unconditionally guarantees to Buyer the prompt and complete
performance and payment of each and every obligation of Seller to Buyer, direct
or indirect, now existing or hereafter arising under this Agreement, including
the due and punctual performance and observance by Seller of all of the terms
and conditions of this Agreement.
18.02 The obligations of Guarantor hereunder shall be absolute
and unconditional and shall continue in full force and effect until the
performance and payment of all of the obligations of Seller under this
Agreement, and are in no way conditioned upon any event or contingency, or upon
any attempt to enforce Seller's performance under this Agreement or any other
right or remedy against Seller or to collect from Seller through the
commencement of legal proceedings or otherwise.
18.03 The obligations of Guarantor hereunder shall not be
affected, reduced, impaired, modified, changed, released, limited or discharged
in any manner whatsoever by reason of any impairment, modification, change,
release, or limitation of the liability of Seller or its estate in bankruptcy,
resulting from the operation of any present or future provision of the
bankruptcy laws or other similar statute, or from the decision of any court.
18.04 Guarantor unconditionally waives diligence, presentment,
protest, notice of dishonor, demand, extension of time for payment, notice of
nonpayment at maturity, and indulgences and notices of every kind, and consents
to any and all changes in terms, covenants, and conditions hereof.
18.05 Guarantor agrees that the obligations of Guarantor
hereunder are irrevocable and are independent of the obligations of Seller under
this Agreement; that a separate action or actions may be brought and prosecuted
against Guarantor regardless of whether any action is brought against Seller or
whether Grantor is joined in any such action or actions.
18.06 Guarantor agrees that Guarantor shall not exercise any
rights that it may acquire by way of subrogation hereunder or otherwise until
the performance in full of all obligations guaranteed pursuant hereto.
18.07 Guarantor represents and warrants to Buyer that (a) it is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware, (b) it has the full corporate power and corporate
authority to enter into this Agreement, and this Agreement has been duly
authorized, executed and delivered by Guarantor and is a legal, valid and
binding agreement and obligation of Guarantor enforceable against Guarantor in
accordance with its terms, except to the extent limited by applicable
bankruptcy, insolvency, moratorium and other similar laws of general application
relating to or affecting the enforcement of creditors' rights and general equity
principles, (c) neither the execution and delivery of this Agreement, the
consummation of any of the transactions contemplated herein, nor compliance with
the terms hereof, will conflict with or result in a breach of any provision of
any law or regulation applicable to Guarantor, or any indenture, contract or
other agreement to which Guarantor is a party or by which Guarantor is bound, or
any statute, rule, regulation, judgment, decree or order binding upon Guarantor,
and (d) Guarantor indirectly owns all of the issued and outstanding stock of
Seller.
18.08 The provisions of this Section shall inure to the benefit
of and may be enforced by Buyer and its successors and assigns, and shall be
binding upon and enforceable against Guarantor and Guarantor's successors or
assigns.
ARTICLE 19.
ADDITIONAL ACTIONS AND DOCUMENTS
Each of the parties hereto agrees that it will, at any time,
prior to, at or after the Closing Date, take or cause to be taken such further
actions, and execute, deliver and file or cause to be executed, delivered and
filed such further documents and instruments, and obtain such consents, as may
be necessary or reasonably requested in connection with the consummation of the
purchase and sale contemplated by this Agreement or in order to fully effectuate
the purposes, terms and conditions of this Agreement.
ARTICLE 20.
BROKERS
Except for ▇▇▇▇ ▇▇▇▇▇ & Co., Seller represents to Buyer that
Seller has not engaged, or incurred any unpaid liability (for any brokerage
fees, finders'
fees, commissions or otherwise) to, any broker, finder or agent in connection
with the transactions contemplated by this Agreement; Buyer represents to Seller
that Buyer has not engaged, or incurred any unpaid liability (for any brokerage
fees, finders' fees, commissions or otherwise) to, any broker, finder or agent
in connection with the transactions contemplated by this Agreement; and Seller
agrees to indemnify Buyer, and Buyer agrees to indemnify Seller, against any
claims asserted against the other parties for any such fees or commissions by
any person purporting to act or to have acted for or on behalf of the
indemnifying party. Notwithstanding any other provision of this Agreement, this
representation and warranty shall survive the Closing Date without limitation as
to time.
ARTICLE 21.
EXPENSES
Each party hereto shall pay its own expenses incurred in
connection with this Agreement and in the preparation for and consummation of
the transactions provided for herein. Notwithstanding the foregoing, (a) Seller
and Buyer shall share equally in all sales, use, transfer, stamp, documentary,
and recording taxes and fees, all costs of conveyances, all notary fees, all
filing and application fees to any federal, state or local agency, all filing
fees to the Commission in connection with the Applications, all sales, stamp,
documentary, transfer, and recording taxes and fees applicable to the
transactions contemplated by this Agreement and the instruments and documents
called for hereunder, including, without limitation, any Alabama sales, use,
stamp, documentary, transfer or similar taxes imposed with respect to the sale
of any motor vehicle or with respect to the transfer of any real property, (b)
Buyer shall pay all fees and expenses of the appraiser referred to in Section 12
and the Title Insurance Commitment, and all filing fees in connection with any
filing under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended, and (c) Seller shall pay all fees and expenses for the Survey.
ARTICLE 22.
NOTICES
All notices, demands, requests, or other communications which may
be or are required to be given or made by any party to any other party pursuant
to this Agreement shall be in writing and shall be hand delivered (including
delivery by overnight courier), mailed by first-class registered or certified
mail, return receipt requested, postage prepaid, delivered by overnight air
courier, or transmitted by telegram, telex or facsimile transmission addressed
as follows:
(i) If to Buyer:
▇▇▇▇▇▇▇▇▇▇ Communications Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
(ii) If to Seller:
RKZ Television, Inc.
c/▇ ▇▇▇▇▇▇ Communications Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy (which shall not constitute notice) to:
Haley, Bader & ▇▇▇▇▇ P.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
or such other address as the addressee may indicate by written notice.
Each notice, demand, request, or communication which shall be
given or made in the manner described above shall be deemed sufficiently given
or made for all purposes at such time as it is delivered to the addressee (with
the return receipt, the delivery receipt, the affidavit of messenger or (with
respect to a telex or facsimile) the answer back being deemed conclusive but not
exclusive evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation.
ARTICLE 23.
WAIVER
No delay or failure on the part of any party hereto in exercising
any right, power or privilege under this Agreement or under any other instrument
or document given in connection with or pursuant to this Agreement shall impair
any such right, power or privilege or be construed as a waiver of any default or
any acquiescence therein. No single or partial exercise of any such right, power
or privilege shall preclude the further exercise of such right, power or
privilege, or the exercise of any other right, power or privilege. No waiver
shall be valid against any party hereto unless made in writing and signed by the
party against whom enforcement of such waiver is sought and then only to the
extent expressly specified therein.
ARTICLE 24.
BENEFIT AND ASSIGNMENT
Except as hereinafter specifically provided in this Section 24,
no party hereto shall assign this Agreement, in whole or in part, whether by
operation of law or otherwise without the prior written consent of Seller (if
the assignor is Buyer) or
Buyer (if the assignor is Seller), and any purported assignment contrary to the
terms hereof shall be null, void and of no force and effect. In no event shall
any assignment by Seller of its rights and obligations under this Agreement,
whether before or after the Closing, release Seller from its liabilities
hereunder. Notwithstanding the foregoing, Buyer or any permitted assignee of
Buyer may assign this Agreement and any and all rights hereunder, in whole or in
part, to any subsidiary of Buyer or to any entity in which the controlling
shareholders of Buyer maintain control. Subject to the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns. No person or entity other than the
parties hereto is or shall be entitled to bring any action to enforce any
provision of this Agreement against any of the parties hereto, and the covenants
and agreements set forth in this Agreement shall be solely for the benefit of,
and shall be enforceable only by, the parties hereto or their respective
successors and assigns as permitted hereunder.
ARTICLE 25.
REMEDIES CUMULATIVE
Except as specifically provided herein, the remedies provided
herein shall be cumulative and shall not preclude the assertion by Seller or by
Buyer of any other rights or the seeking of any other remedies against the
other.
ARTICLE 26.
ENTIRE AGREEMENT; AMENDMENT
This Agreement, together with all Exhibits and Schedules hereto,
constitutes the entire agreement among the parties pertaining to the subject
matter hereof and supersedes all prior agreements, understandings, negotiations
and discussions, whether oral or written, of the parties. No supplement,
modification or waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby.
ARTICLE 27.
SEVERABILITY
If any part of any provision of this Agreement or any other
agreement, document or writing given pursuant to or in connection with this
Agreement shall be invalid or unenforceable under applicable law, such part
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provisions or the
remaining provisions hereof or of said agreement, document or writing.
ARTICLE 28.
PRESS RELEASES
All notices to third parties and other publicity relating to the
transactions contemplated by this Agreement shall be jointly planned,
coordinated and agreed to by Buyer and Seller. Prior to the Closing Date neither
of the parties hereto shall act unilaterally in this regard without the prior
written approval of the
other, except as required by law and/or the rules and regulations of the
Commission.
ARTICLE 29.
HEADINGS
The headings of the sections and subsections contained in this
Agreement are inserted for convenience only and do not form a part or affect the
meaning, construction or scope thereof.
ARTICLE 30.
GOVERNING LAW
This Agreement, the rights and obligations of the parties hereto,
and any claims or disputes relating thereto, shall be governed by and construed
under and in accordance with the laws of the State of New York, excluding the
choice of law rules thereof.
ARTICLE 31.
SIGNATURE IN COUNTERPARTS
This Agreement may be executed in separate counterparts, neither
of which need contain the signatures of both parties, each of which shall be
deemed to be an original, and both of which taken together constitute one and
the same instrument. It shall not be necessary in making proof of this Agreement
to produce or account for more than the number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Asset Purchase Agreement, or has caused this Asset Purchase Agreement to be duly
executed and delivered in its name on its behalf, all as of the day and year
first above written.
SELLER
RKZ TELEVISION, INC.
By:
Name:
Title:
BUYER
▇▇▇▇▇▇▇▇▇▇ COMMUNICATIONS
COMPANY
By: ________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Executive Vice President
For purposes of Article 18 of
this Asset Purchase Agreement
▇▇▇▇▇▇ COMMUNICATIONS CORP.
By:
Name:
Title:
DECEMBER 29, 1995 LETTER TO RKZ TELEVISION, INC.
December 29, 1995
RKZ Television, Inc.
▇▇▇▇▇▇ Communications Corporation
c/▇ ▇▇▇▇▇▇ Communications Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: WJSU-TV, Anniston, Alabama (the "Station")
Gentlemen:
Reference is hereby made to that (a) certain Option Agreement,
dated as of December 21, 1995 (the "Option Agreement"), by and among RKZ
Television, Inc., a Delaware corporation ("Grantor"), ▇▇▇▇▇▇ Communications
Corporation, a Delaware corporation ("Guarantor" and together with "Grantor,"
the "Sellers"), and ▇▇▇▇▇▇▇▇▇▇ Communications Company, a Delaware corporation
("ACC") and (b) that certain Asset Purchase Agreement to be entered into by and
among the Sellers and ACC upon the exercise of the option described in the
Option Agreement (the "Purchase Agreement" and together with the Option
Agreement, the "Transaction Agreements"). Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such terms in the
Transaction Agreements.
Notwithstanding anything to the contrary set forth in the
Transaction Agreements or otherwise, this letter agreement (the "Letter
Agreement") sets forth our agreement with respect to the following matters:
1. Liens and Encumbrances. Sellers, ACC and Society National Bank
(the "Bank") have entered into an agreement dated as of December 29, 1995 (the
"Bank Agreement"), pursuant to which the Bank will give notice to ACC prior to
the foreclosure by the Bank on its liens and security interests in the Assets,
provided that the Sellers pay certain amounts to the Bank as set forth in the
Bank Agreement. Sellers represent and warrant that the Option Amount and any
Supplemental Amount (net of reasonable transaction expenses and applicable
taxes) paid by ACC will be paid to the Bank. Except for the liens and security
interests disclosed by Grantor to ACC on Schedule 3.05(b) to the Option
Agreement delivered pursuant thereto, Sellers shall not, and shall not permit
any of its
subsidiaries to, directly or indirectly, create, incur, assume or permit to
suffer to exist any lien, security interest or other encumbrance of any kind on,
or with respect to, the Assets, whether now owned or hereafter acquired, or any
income or profits therefrom. Notwithstanding anything to the contrary, Sellers
may permit new liens, security interests or other encumbrances in connection
with the refinancing of any debt presently owed to the Bank, provided that the
banks or such other financial institutions which agree to provide refinancing to
the Sellers agree in writing to the terms and conditions applicable to the Bank
which are set forth in the Bank Agreement and in the consent agreement dated as
of December 29, 1995 entered into by and between the Guarantor and the Bank.
2. Intercompany Debt. Sellers acknowledge and agree that (a)
intercompany debt and interest in the amount of approximately $10.4 million is
owed to O.C.C., Inc., a wholly-owned subsidiary of the Guarantor, by the Grantor
and (b) the entire intercompany debts and obligations of the Grantor will be
extinguished and paid in full upon payment by ACC of the Option Amount. Except
as may be reasonably required by Grantor, pursuant to the exercise of its sole
good faith business judgment, to carry out its obligations under the Transaction
Agreements, including Grantor's obligations as the licensee of the Station,
Grantor shall not, directly or indirectly, create, incur, assume, guaranty or
otherwise become or remain directly or indirectly liable with respect to any
intercompany indebtedness or any indebtedness with an affiliate of Grantor.
3. Bankruptcy.
(a) Grantor represents that as of the date hereof and continuing through the
Closing Date, Grantor has not filed a voluntary petition for relief, nor is
there any involuntary petition pending against the Grantor or against or with
respect to the Assets, under any provision of the federal bankruptcy laws or
other local, state, federal, or other insolvency or similar laws providing for
the relief of debtors (individually, an "Insolvency Proceeding").
(b) The Grantor represents, warrants and covenants to ACC that the exercise by
ACC of its rights pursuant to the Option Agreement will not be thwarted,
prevented, hindered or delayed by an Insolvency Proceeding. Grantor further
represents, warrants and covenants to ACC that Grantor shall not voluntarily
commence an Insolvency Proceeding, and that Grantor shall use its best efforts
to cause to be immediately dismissed any involuntary Insolvency Proceeding.
(c) In the event that an Insolvency Proceeding is commenced, Grantor knowingly,
voluntarily and intentionally, after consultation with and advice of counsel,
stipulates and agrees, to the fullest extent allowed by law and with the full
intention that such stipulations and agreements shall survive the filing of any
Insolvency Proceeding, that:
(i) Without the necessity of an evidentiary hearing and without the necessity or
requirement that ACC establish or prove the value of the Assets, or the lack of
adequate protection of ACC's interest in the Assets, Grantor consents to and ACC
shall be entitled to the
immediate modification or termination of any stays of proceedings pursuant to 11
U.S.C. Section 362 or otherwise, thereby allowing ACC to exercise all of its
legal rights and remedies including, without limitation, the right to acquire
the Assets. Grantor shall not oppose, directly or indirectly, or otherwise
defend against ACC's effort to gain such relief from the any stays.
(ii) The Grantor hereby irrevocably appoints ACC as its attorney in fact to
communicate to any court of competent jurisdiction the express consent of the
Grantor to any request by ACC for the modification or termination of the stays
of proceedings as set forth above, and to take any and all other and further
actions necessary or appropriate to the modification or termination of any
stays.
(iii) In addition to and not in lieu of the modification or termination of any
stays of proceedings contemplated above and to the extent that the Letter
Agreement, the Transaction Agreements and the transactions contemplated hereby
are or might be considered to be in the nature of executory contracts, the
Grantor shall, at the request of ACC, immediately assume and cure any default in
performance under the terms of this Letter Agreement and the Transaction
Agreements and shall file with a court of competent jurisdiction such motions,
adversary proceedings or other actions as may be necessary to give immediate
effect to the assumption thereof. Failure or refusal of the Grantor to undertake
immediately and successfully such assumption shall constitute additional cause
for the modification or termination of any and all stays of proceedings.
(iv) The Grantor hereby irrevocably appoints ACC as its attorney in fact to
communicate to any court of competent jurisdiction the express consent of the
Grantor to the assumption of this Letter Agreement and the Transaction
Agreements and to take any and all other and further actions necessary or
appropriate to implement such assumption. The rights and remedies set forth in
this Paragraph (c) are in addition to and not in substitution for ACC's right to
submit and have allowed a claim pursuant to 11 U.S.C. Section 502(g) (or any
similar or successor statute or rule of court) in the event that this Letter
Agreement or the Transaction Agreements are rejected as executory contracts in
an Insolvency Proceeding.
(d) The Grantor expressly acknowledges that the agreements of the parties with
respect to the matters set forth in this Letter Agreement constitute a
materially significant portion of the inducement for ACC to pay the Option
Amount as of the date hereof.
4. Relocation of Transmitter Site. Section 2.1 of the Option Agreement is
amended to clarify that the determination of whether a Transmitter Site is
"reasonably acceptable to ACC" shall not include consideration of the extent of
coverage of Birmingham from such a site as long as such site places a predicted
city grade contour over at least part of the Birmingham Limits using the
prediction methodology specified in paragraph 5 hereof.
5. Calculation of Predicted City Grade Contour. For purposes of Sections 2.1 and
2.3(b) of the Option Agreement, the Grantor and ACC agree that the area within
the Authorized Contour Area and the area within the Proposed Contour Area shall
each be determined as follows: A grid of evenly-spaced squares, each one of
which is of 1,000 meters in length on each side, shall be superimposed over the
area within the Birmingham Limits. Within each square, the predicted signal
strength will be determined using the MSite Program of EDX Engineering. The
predicted signal strength will be determined by assuming free space propagation
minus diffraction losses caused by terrain based upon the rounded obstacle
diffraction model described in Section 7.3 of NBS Technical Note 101, assuming
50 percent time and location variability and the receiving antenna height
assumed by the FCC's F(50,50) curves. Each square receiving a predicted signal
strength of 80 dBu or greater will be deemed to be encompassed by the city grade
contour of the Station. The area encompassed within all such squares receiving a
predicted signal strength of 80 dBu or greater shall be considered to be the
area within the Birmingham Limits encompassed by the predicted city grade
contour. The signal strength prediction shall be subject to review by ACC's
engineer to assure that assumptions have been made consistent with similar
studies submitted to the FCC using the MSite program or another EDX program
employing the same diffraction loss calculation techniques and assumptions.
6. Delivery of the Option Amount. ACC acknowledges that payment by ACC of the
Option Amount shall constitute a waiver by ACC of any right to terminate the
Option pursuant to Section 1.3 of the Option Agreement.
7. Miscellaneous. This Letter Agreement and the covenants and agreements set
forth herein shall be binding upon and inure solely to the benefit of the
signatory parties hereto (and their successors and assigns as permitted under
the Transaction Agreements). This Letter Agreement shall be deemed to amend the
Transaction Agreements and to the extent that any of the terms or conditions
herein are inconsistent or conflict with the forms or conditions of the
Transaction Agreements, the terms and conditions of this Letter Agreement shall
govern.
Please acknowledge your understanding of and agreement with the
foregoing by signing this Letter Agreement in the spaces provided below,
retaining one original for your files and returning the other original to ACC in
the manner provided in the Purchase Agreement.
Sincerely,
▇▇▇▇▇▇▇▇▇▇ COMMUNICATIONS
COMPANY
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
ACCEPTED AND AGREED TO THIS __th DAY OF December, 1995:
RKZ TELEVISION, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ COMMUNICATIONS
CORPORATION
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
RKZ Television, Inc.
▇▇▇▇▇▇ Communications Corporation
c/▇ ▇▇▇▇▇▇ Communications Corporation
December 29, 1995
Page 6
WJSU TIME BROKERAGE AGREEMENT
TIME BROKERAGE AGREEMENT
Time Brokerage Agreement ("Agreement") dated as of December 21,
1995, by and between RKZ Television Inc. ("Licensee") and ▇▇▇▇▇▇▇▇▇▇
Communications Company ("Broker").
WHEREAS, Licensee owns and operates television station WJSU-TV,
Channel 40, Anniston, Alabama (the "Station"); and
WHEREAS, Licensee and Broker have entered into on this day an Option
Agreement relating to the Station (the "Option Agreement") pursuant to which
Broker has purchased from Licensee the option to purchase the Station; and
WHEREAS, Licensee, while maintaining control over the Station's
finances, personnel matters and programming, desires to accept and broadcast
programming supplied by Broker on the Station and Broker desires to provide such
programming;
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the parties hereto have agreed and do agree as follows:
1. Air Time and Transmission Services. Licensee hereby agrees, beginning
on the Commencement Date, as defined in the Option Agreement, to broadcast, or
cause to be broadcast, on the Station, during times when Licensee Programs are
not broadcast, programming provided by Broker (the "Programming"), which may
include, without limitation, network programming, syndicated programs, barter
programs, paid-for programs, locally produced programs and advertising.
2. Payments. Broker hereby agrees, beginning on the Commencement Date,
to pay Licensee, as full and complete consideration for the rights granted
hereunder, the amounts, and pursuant to the terms, set forth in Attachment I.
Broker shall receive a payment credit for any Programming not broadcast by the
Station, such credit to be determined by multiplying the sum of the Base and
Expenses Payments by the ratio of the amount of time preempted or not accepted
to the total number of hours of Programming supplied each month, provided that
the failure of the Station to broadcast such Programming is not due to the
negligent act of Broker, equipment downtime or local needs programming in
accordance with Paragraph 8; provided, further, that if Licensee without
Broker's concurrence has not broadcast any programming supplied to the Station
pursuant to any affiliation agreement between the Broker and the ABC Television
Network (the ABC Affiliation Agreement), then Licensee shall be responsible for
satisfying any obligations to the ABC Network thereunder ("Network
Obligations").
3. Term. The term of this Agreement shall be until the earlier of: (i)
the acquisition of the Station pursuant to the Option Agreement; or (ii) ten
(10) years beginning on the Commencement Date.
4. Programming. Broker shall furnish or cause to be furnished the
Programming, which shall be programming of its selection and may include
commercial matter, network programming, syndicated programming, news,
entertainment, promotions, contests, public service announcements and other
television programming. On a regular basis, Licensee shall air, or shall require
Broker to air, on the Station programming responsive to issues of importance to
the local community and educational and informational programming for children
aged 16 years and younger. All Programming shall be in accordance with (i) the
Communications Act of 1934, as amended; (ii) Federal Communications Commission
(the "FCC") rules, requirements and policies, including, without limitation, the
FCC's rules on plugola/payola, lotteries, station identification, children's
programming, sponsorship identification, political programming and political
advertising rates; (iii) all applicable federal, state and local regulations and
policies; and (iv) generally accepted quality standards consistent with
Licensee's past practices. Subject to the provisions of Paragraph 2 hereof,
Broker agrees that if, in the sole, good faith judgment of the Licensee or the
Station General Manager, Broker does not comply with the standards of this
paragraph, Licensee may suspend or cancel any Programming not in compliance.
Licensee and Broker shall cooperate in an effort to avoid conflicts regarding
broadcasts on the Station. The right to use the Programming and to authorize its
use in any manner and in any media whatsoever shall be, and remain, vested
solely in Broker.
5. Special Events. Licensee reserves the right in its discretion to
preempt, delay or delete any of the broadcasts of the Programming and to
substitute programming which in Licensee's judgment is of greater local or
national importance. In all such cases, Licensee shall use its best efforts to
give Broker reasonable notice of its intention to preempt such Programming, and,
in the event of such preemption, Broker shall receive a payment credit and
Licensee shall be responsible for Network Obligations for the Programming so
omitted pursuant to the terms of Paragraph 2 hereof.
6. Advertising and Programming Revenues. Broker shall retain all
advertising and other revenues, and all accounts receivables, relating to the
Programming it delivers to the Station for broadcast, including, without
limitation, network compensation revenues, promotion-related revenues and
retransmission
consent revenues. Broker shall be responsible for payment of the commissions due
to any sales representative engaged by it for the purpose of selling advertising
which is part of the Programming it provides for the Station. Licensee shall
retain the revenue from the sale of any advertising on the Station on programs
not produced or delivered to it by Broker. Licensee and Broker each shall have
the right, at their own expense, to seek copyright royalty payments for their
own programming. Broker may sell advertising on the Station in combination with
the sale of advertising on other broadcasting stations of its choosing, subject
to compliance with antitrust laws.
7. Broadcast Obligations. Licensee represents and warrants that all
contracts, commitments or understandings of Licensee to broadcast on the Station
any programs or commercial matter on or after the date hereof are set forth in
Attachment II ("Broadcast Obligations"). Those Broadcast Obligations which
Broker agrees to assume on the Commencement Date are marked with an asterisk on
Attachment II, and Broker agrees to assume all Broadcast Obligations which may
not be terminated without penalty on 30-days written notice. As of the
Commencement Date, Licensee shall have paid all amounts owed on its Broadcast
Obligations as of that date. Licensee shall not incur any other Broadcast
Obligations without the prior written consent of Broker. Licensee agrees to be
solely responsible for, and to indemnify Broker against, satisfying and/or
terminating any Broadcast Obligation not expressly assumed by Broker and shall
provide to Broker evidence of such satisfaction or termination no later than 30
days following the Commencement Date. Licensee agrees, upon request of the
Broker, to terminate its affiliation agreement with the CBS Television Network
as of a date as soon as possible after the commencement of the ABC Affiliation
Agreement.
8. Station Facilities.
8.1. Use of Facilities. Subject to the qualifications set forth in this
Agreement, throughout the term of this Agreement, Licensee shall make the
facilities of the Station available to Broker for operation and broadcast with
the maximum authorized facilities twenty-four (24) hours a day, seven (7) days a
week, except for downtime occasioned by routine maintenance not to exceed two
(2) hours each Sunday morning between the hours of 12 Midnight and 4:00 a.m. To
the extent practicable, any maintenance work affecting the operation of the
Station at full power shall be scheduled upon at least forty-eight (48) hours
prior notice with the agreement of Broker, such agreement not to be unreasonably
withheld. During the term of this Agreement, Broker agrees to perform, without
charge, routine monitoring of the Station's transmitter performance and tower
lighting, subject to the Licensee's supervision.
9. Right of Access. Broker and Broker's employees or agents shall at all
times be afforded reasonable access to the Station in order to perform their
duties in connection with the production and transmission of the Programming
over
the facilities of the Station. Broker shall have the right to install at
Licensee's and/or Broker's premises, and to maintain throughout the term of this
Agreement, at Broker's expense, any microwave studio/transmitter relay
equipment, telephone lines, transmitter remote control, monitoring devices or
any other equipment necessary for the proper transmission of the Programming on
the Station, and Licensee and Broker shall take all steps reasonably necessary
to prepare and file any applications with the FCC to effectuate such proper
transmission. Whenever on the Station's premises, Broker and its employees and
agents shall be subject to the supervision and direction of Licensee's General
Manager and/or other designated employee or agent.
10. New Technologies. The parties agree that any future FCC frequency
allocations associated with the operation of the Station, or any additional uses
of the Station's frequency authorized by the FCC (or any government agency or
entity succeeding to the FCC's authority), including but not exclusively the
transmission of advanced television, high definition, or digital broadcasts, are
included under the provisions of this Agreement. Following a timely request by
Broker, Licensee agrees to apply for any additional FCC authorization, or
authorization from such other government agency or entity which may be necessary
in order to make use of any future frequency allocations or additional uses of
the Station's frequency as provided herein.
11. Force Majeure. Any failure or impairment of facilities or any delay
or interruption in broadcasting the Programming, or failure at any time to
furnish facilities, in whole or in part, for broadcasting, due to acts of God,
strikes, or threats thereof, force majeure, or due to causes beyond the control
of Licensee, shall not constitute a breach of this Agreement, and Licensee shall
not be liable to Broker, except to the extent of allowing in each such case an
appropriate payment credit for time not provided or broadcasts not carried based
upon a pro rata adjustment to amounts due as specified in Paragraph 2 hereof
calculated upon the length of time during which the failure or impairment exists
and Licensee's satisfaction of any Network Obligations.
12. Licensee Control of Station. Notwithstanding anything to the
contrary in this Agreement, Licensee shall have full authority, control and
power over the operation of the Station during the period of this Agreement.
Licensee shall retain control, said control to be reasonably exercised, over the
policies, programming and operations of the Station, including, without
limitation, the right to decide whether to accept or reject any Programming or
advertisements, the right to preempt any Programming in order to broadcast a
program deemed by Licensee to be of greater national, regional, or local
interest, and the right to take any other actions necessary for compliance with
the laws of the United States; the laws of the relevant states; the rules,
regulations, and policies of the FCC (including without limitation the
prohibition on unauthorized transfers of control); and the rules, regulations
and policies of other federal governmental authorities, including
without limitation the Federal Trade Commission and the Department of Justice.
Licensee shall be responsible for ensuring that FCC requirements are met with
respect to ascertainment of the problems, needs and interests of the community,
public service programming, main studio staffing, maintenance of public
inspection files and the preparation of quarterly issues/programs lists and
children's programming reports. Broker shall, upon request by Licensee, provide
Licensee with information with respect to such of Broker's programs which are
responsive to the problems, needs and interests of the community or which
contain educational and informational programming for children, so as to assist
Licensee in the preparation of required quarterly issues/programs lists and
children's programming reports, and shall provide upon request other information
to enable Licensee to prepare other records, reports and logs required by the
FCC or other local, state or federal governmental agencies.
13. Responsibility for Employees and Expenses. Broker shall employ and
be responsible for the salaries, taxes, insurance and related costs for all
personnel used in the production of the Programming (including, without
limitation, salespeople, traffic personnel and programming staff). Licensee
shall employ two full-time employees of the Station, one of whom shall be a
manager, both of whom shall report to and be accountable solely to Licensee, and
who shall be ultimately responsible for the day-to-day operation of the Station.
Licensee shall be responsible for the salaries, taxes, insurance and related
costs for such personnel. Licensee shall also be responsible for all expenses
related to the Station's studio and broadcast transmission, including, but not
limited to, tower and studio rent or mortgages, utilities, insurance on
Licensee's facilities, automobile expenses of Licensee's employees, property
taxes and income taxes relating to Licensee's earnings from this arrangement.
Whenever on the Station's premises, all Broker personnel shall be subject to the
supervision and the direction of Licensee's designated personnel. Broker shall
pay for all telephone calls associated with program production and listener
responses, for all fees to ASCAP, BMI and SESAC, for all sums owed under assumed
contracts and for any other copyright fees attributable to the Broker's
Programming broadcast on the Station.
14. Indemnification. Broker shall indemnify and hold Licensee and its
stockholders, directors, officers, agents, employees, successors, and assigns
harmless against all liability for libel, slander, illegal competition or trade
practice, infringement of trade marks, trade names, or program titles, violation
of rights of privacy, and infringement of copyrights and proprietary rights and
other liabilities resulting from or relating to the broadcast of Programming
furnished by Broker and for any breach of any representations, covenants or
warranties of Broker contained in or made pursuant to this Agreement. Licensee
agrees to indemnify and to hold Broker and its stockholders, directors,
officers, agents, employees, successors, and assigns harmless against all
liability arising out of (i) material broadcast by Licensee other than the
Programming and/or (ii) liabilities of the type described in the first sentence
of this Paragraph that arise as a result of Licensee's preemption
or alteration of any Programming prior to broadcast by Licensee; or (iii) any
breach of any representations, covenants or warranties of Licensee contained in
or made pursuant to this Agreement. Broker's and Licensee's obligations to hold
the other harmless against the liabilities specified above shall survive any
termination of this Agreement until the expiration of all applicable statutes of
limitation. Each of Broker and Licensee shall carry errors and omissions
insurance covering broadcasts made under this Agreement, and shall name the
other party as an additional insured on such insurance policy to cover
broadcasts made under this Agreement.
15. Events of Default: Cure periods and Remedies.
15.1. Events of Default. The following shall, after the expiration of
the applicable cure periods, constitute Events of Default under the Agreement:
15.1.1. Non-Payment. Broker's failure to timely pay the
consideration provided for in Paragraph 2 hereof;
15.1.2. Default in Covenants or Adverse Legal Action. The
default by any party hereto in the material observance or performance of
any material covenant, condition or agreement contained herein, or if
any party shall (a) make a general assignment for the benefit of
creditors, (b) files or has filed against it a petition for bankruptcy,
for reorganization or an arrangement, or for the appointment of a
receiver, trustee or similar creditors' representative for the property
or assets of such party under any federal or state insolvency law,
which, if filed against such party, has not been dismissed or discharged
within sixty (60) days thereof, or, specifically and without limitation,
if Licensee's successors and assigns, including, without limitation, any
assignee of the FCC license for the Station, except if such successor or
assign is Broker, refuses to abide by or terminates this Agreement
during the term of this Agreement, such event shall constitute a breach
by Licensee.
15.1.3. Breach of Representation. If any material representation
or warranty herein made by either party hereto, or in any certificate or
document furnished by either party to the other pursuant to the
provisions hereof, shall prove to have been false or misleading in any
material respect as of the time made or furnished.
15.2. Cure Periods. An Event of Default shall not be deemed to have
occurred until twenty (20) business days after the nondefaulting party has
provided the defaulting party with written notice specifying the event or events
that if not cured would constitute an Event of Default and specifying the
actions necessary to cure within such period, except that in the Event of
Default pursuant to Paragraph 15.1.1 hereof, an Event of Default shall not be
deemed to have occurred until five (5) business days after Licensee has provided
Broker with
written notice specifying the event or events that if not cured would constitute
an Event of Default and specifying the actions necessary to cure within such
period. The twenty (20) business-day period may be extended for a reasonable
period of time if the defaulting party is acting in good faith to cure and such
delay is not materially adverse to the other party. The Event of Default shall
not be deemed to have occurred if actions necessary to cure are taken during the
relevant cure period.
15.3. Termination Upon Default. Upon the occurrence of an Event of
Default, the non-defaulting party may terminate this Agreement provided that it
is not also in material default hereunder. If Broker has defaulted in the
performance of its obligations, Licensee shall be under no further obligation to
make available to Broker any further broadcast time or broadcast transmission
facilities and all amounts accrued or payable to Licensee up to the date of
termination which have not been paid, less any payment credits, shall
immediately become due and payable. If Licensee has defaulted in the performance
of its obligations hereunder, Broker may seek such remedies at law and/or equity
as are available, including, without limitation, specific performance.
15.4. Liabilities Upon Termination. Broker shall be responsible for all
liabilities, debts and obligations of Broker accrued from the purchase of air
time and transmission services including, without limitation, accounts payable,
barter agreements and unaired advertisements, but not for Licensee's federal,
state, and local tax liabilities associated with Broker's payments to Licensee
as provided for herein. With respect to Broker's obligations to broadcast
material over the Station after termination hereunder, Broker may propose
compensation to Licensee for meeting these obligations, but Licensee shall be
under no duty to accept such compensation or to perform such obligations. Upon
termination, Broker shall return to Licensee any equipment or property of the
Station used by Broker, its employees or agents, in substantially the same
condition as such equipment existed on the date of this Agreement, ordinary wear
and tear excepted. Notwithstanding anything in the foregoing to the contrary,
termination shall not extinguish any rights of either party as may be provided
by Paragraphs 14, 15 or 16 hereof.
16. Broker Termination Options. Broker may elect, but shall not be
required, to terminate this Agreement at any time during the term hereof (a) in
the event that Licensee preempts or substitutes other programming for that
supplied by the Broker during five (5) percent or more of the total hours of
operation of the Station during any calendar month. In the event Broker elects
to terminate this Agreement pursuant to this provision, it shall give Licensee
notice of such election at least sixty (60) days prior to the termination date.
Upon termination, all sums owing to Licensee by Broker shall be paid.
Notwithstanding anything in the foregoing to the contrary, termination shall not
extinguish any rights of either party as may be provided by Paragraph 14 hereof.
17. Responsive Programming. Broker and Licensee mutually acknowledge
their interest in ensuring that the Station serves the needs and interests of
the residents of the Station's community of license and service area and agree
to cooperate in doing so. Licensee shall, on a regular basis, assess the issues
of concern to residents of the Station's community of license and service area
and address those issues in its public service programming. Licensee shall
describe those issues and responsive programming and place issues/programs lists
in the Station's public inspection file as required by FCC rules. Licensee may
request, and Broker shall provide, information concerning such of Broker's
Programming that is responsive to community issues so as to assist Licensee in
the satisfaction of its public service programming obligations. Licensee shall
also evaluate the local need for children's educational and informational
programming and shall inform Broker of its conclusions in that regard. Licensee,
in cooperation with Broker, shall ensure that educational and informational
programming for children aged 16 years and younger is broadcast over the Station
in compliance with applicable FCC requirements. Broker shall also provide to
Licensee upon request such other information necessary to enable Licensee to
prepare records and reports required by the FCC or other local, state or federal
government entities.
18. Time Brokerage Challenge. If this Agreement is challenged in whole
or in part at the FCC or in another administrative or judicial forum, whether or
not in connection with the Station's license renewal application, counsel for
the Licensee and counsel for the Broker shall jointly defend the Agreement and
parties' performance thereunder throughout all such proceedings. Each of
Licensee and Broker shall bear its respective costs of such proceedings. If
portions of this Agreement do not receive the approval of the FCC's staff, then
the parties shall endeavor in good faith to reform the Agreement as necessary to
satisfy the FCC staff's concerns or seek reversal of the staff decision and
approval from the full Commission on appeal.
19. Representations and Warranties.
19.1. Mutual Representations and Warranties. Both Licensee and Broker
represent that they are legally qualified, empowered, and able to enter into
this Agreement, and that the execution, delivery and performance hereof shall
not constitute a breach or violation of any agreement, contract or other
obligation to which either party is subject or by which it is bound.
19.2. Licensee's Representations, Warranties and Covenants. Licensee
makes the following further representations, warranties and covenants:
19.2.1. Authorizations. During the term of this Agreement,
Licensee shall own and hold all licenses and other permits and
authorizations necessary for the operation of the Station as presently
conducted (including licenses, permits and authorizations issued by the
FCC), and such
licenses, permits and authorizations shall be in full force and effect
for the entire term, unimpaired by any acts or omissions of Licensee,
its principals, employees or agents. There is not now pending or, to
Licensee's best knowledge, threatened, any action by the FCC or other
party to revoke, cancel, suspend, refuse to renew or modify adversely
any of such licenses, permits or authorizations, and, to Licensee's best
knowledge, no event has occurred that allows or, after notice or lapse
of time or both would allow, the revocation or termination of such
licenses, permits or authorizations or the imposition of any restriction
thereon of such a nature that may limit the operation of the Station as
presently conducted. Licensee has no reason to believe that any such
license, permit or authorization shall not be renewed during the term of
this Agreement in its ordinary course. Licensee is not in violation of
any statute, ordinance, rule, regulation, order or decree of any
federal, state, local or foreign governmental agency, court or authority
having jurisdiction over it or over any part of its operations or
assets, which default or violation would have a material adverse effect
on Licensee or its assets or on its ability to perform this Agreement.
Licensee shall not take any action or omit to take any action which
would have an adverse impact upon the Licensee, its assets, the Station
or upon Licensee's ability to perform this Agreement.
19.2.2. Filings. All material reports and applications required
to be filed with the FCC (including ownership reports and renewal
applications) or any other governmental agency, department or body in
respect of the Station have been filed during the current license term
and in the future shall be filed in substantially a timely manner, and
are and shall be true and complete and accurately present the
information contained therein in all material respects. All such reports
and documents, to the extent required to be kept in the public
inspection files of the Station, are and shall be kept in such files.
19.2.3. Facilities. The Station's facilities shall be maintained
at the expense of Licensee and shall comply and be operated, in all
material respects, in accordance with the FCC authorizations for the
Station and with good engineering standards necessary to deliver a high
quality technical signal to the area served by the Station, and with all
applicable laws and regulations (including the requirements of the
Communications Act and the rules, regulations, policies and procedures
of the FCC promulgated thereunder). Licensee, throughout the term of
this Agreement, shall maintain good and marketable title to all of the
assets and properties used and useful in the operation of the Station.
During the term of this Agreement, Licensee shall not dispose of,
transfer, assign or pledge any of such assets and properties except with
the prior written consent of the Broker, if such action might adversely
affect Licensee's performance hereunder or the business and operations
of Licensee or the Station permitted hereby. All expenditures reasonably
required to maintain the quality of the Station's signal shall be made
promptly by Licensee, provided that Broker reimburses Licensee for such
expenses as set forth in Attachment I.
19.2.4. Compliance with Law. Throughout the term of this
Agreement, Licensee shall comply with all laws and regulations
applicable in the conduct of Licensee's business and Licensee
acknowledges that Broker has not urged, counseled, or advised the use of
any unfair business practice.
19.2.5. Payment of Obligations. Licensee shall not incur any
debt, obligation or liability without the prior written consent of
Broker if such undertaking would adversely affect Licensee's performance
hereunder or the business and operations of the Broker permitted hereby.
Licensee shall pay in a timely fashion all of its debts, assessments and
obligations, including without limitation tax liabilities and payments
attributable to the operations of the Station, as they come due from and
after the effective date of this Agreement.
19.2.6. Broadcast Obligations. Licensee has no agreement,
contract, commitment or understanding to broadcast on the Station on or
after the Commencement Date, any programs or commercial matter other
than those listed in Attachment II hereto. Licensee shall not incur any
other such obligation without the prior written consent of Broker.
19.2.7. Insurance. Licensee shall maintain in full force and
effect throughout the term of this Agreement insurance with responsible
and reputable insurance companies or associations covering such risks
(including fire and other risks insured against by extended coverage,
public liability insurance, insurance for claims against personal injury
or death or property damage and such other insurance as may be
applicable) and in such amounts and on such terms as is conventionally
carried by broadcasters operating television stations with facilities
comparable to those of the Station. Any insurance proceeds received by
Licensee in respect of damaged property shall be used to repair or
replace such property so that the operations of the Station conform with
this Agreement.
19.2.8. Licensee Control. Licensee hereby verifies that for the
term of this Agreement it shall maintain ultimate control over the
Station's facilities, including specifically control over the Station's
finances, personnel and programming, and nothing herein shall be
interpreted as depriving Licensee of the power or right of such ultimate
control.
19.3. Broker's Representations, Warranties and Covenants.
19.3.1. Compliance with Applicable Law. Broker's performance of
its obligations under the Agreement and its furnishing of Programming
shall be in compliance with, and shall not violate, any applicable laws
or any applicable rules, regulations, or orders of the FCC or any other
governmental agency. Throughout the term of this Agreement, Broker shall
comply with all laws and regulations applicable in the conduct of
Broker's business and
Broker acknowledges that Licensee has not urged, counseled, or advised
the use of any unfair business practice.
19.3.2. Children's Television Advertising. Broker shall not
broadcast advertising in programs originally designed for children aged
12 years and under in excess of the amounts permitted under applicable
FCC rules.
19.3.3. Handling of Complaints. Broker shall promptly advise
Licensee of any public or FCC complaint or inquiry that Broker receives
concerning the Programming on the Station.
19.3.4. Contracts. On the Commencement Date, Broker shall assume
Licensee's rights and obligations under the Broadcast Obligations marked
with an asterisk on Attachment II, and all Broadcast Obligations which
may not be terminated without penalty on 30 days written notice.
19.3.5. Copyright and Licensing. Broker represents and warrants
to Licensee that Broker has and shall have throughout the term of this
Agreement the full authority to broadcast the Programming on the Station
and that Broker shall not broadcast on the Station any material in
violation of the Copyright Act.
19.3.6. Information For FCC Reports. Upon request by Licensee,
Broker shall provide in a timely manner any such information in its
possession which shall enable Licensee to prepare, file or maintain the
records and reports required by the FCC.
19.3.7. Payola/Plugola. Broker shall not accept, and shall not
permit any of its agents or employees to accept, any consideration,
compensation, gift or gratuity of any kind whatsoever, regardless of its
value or form, including, but not limited to, a commission, discount,
bonus, materials, supplies or other merchandise, services or labor,
whether or not pursuant to written contracts or agreements between
Broker and merchants or advertisers, unless the payer is identified in
the program as having paid for or furnished such consideration, in
accordance with FCC requirements. Broker agrees to annually, or more
frequently at the request of Licensee, execute and provide Licensee with
an affidavit regarding payola/plugola compliance.
19.3.8. Insurance. Broker shall maintain in full force and effect
throughout the term of this Agreement insurance with responsible and reputable
insurance companies or associations covering such risks (including fire and
other risks insured against by extended coverage, public liability insurance,
insurance for claims against personal injury or death or property damage and
such other insurance as may be applicable), in such amounts and on
such terms as is conventionally carried by broadcasters operating television
stations with facilities comparable to those of the Station, and shall name the
Licensee as an additional insured on such insurance policy. Any insurance
proceeds received by Broker in respect of damaged property shall be used to
repair or replace Station facilities. Broker shall carry also errors and
omissions insurance covering broadcasts made on the Station, and shall name the
Licensee as an additional insured on such insurance policy.
20. Publicity. Licensee and Broker shall not issue any press release or
otherwise make any public statement with respect to the transactions
contemplated herein except as may be required by law or regulation or as agreed
to by Licensee and Broker.
21. Modification and Waiver. No modification or waiver of any provision
of this Agreement shall in any event be effected unless the same shall be in
writing and signed by the party adversely affected by the waiver or
modification, and then such waiver and consent shall be effective only in the
specific instance and for the purpose for which given.
22. No Waiver: Remedies Cumulative. No failure or delay on the part of
Licensee or Broker in exercising any right or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of Licensee and Broker herein
provided are cumulative and are not exclusive of any right or remedies which it
may otherwise have.
23. Construction. This Agreement shall be construed in accordance with
the laws of the State of New York, and the obligations of the parties hereto are
subject to all federal, state or municipal laws or regulations now or hereafter
in force and to the regulations of the FCC and all other governmental bodies or
authorities presently or hereafter to be constituted.
24. Headings. The headings contained in this Agreement are included for
convenience only and no such heading shall in any way alter the meaning of any
provision.
25. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns,
including, without limitation, and Licensee shall assign this Agreement to, any
assignee of the FCC license for the Station.
26. Notices. Any notice required hereunder shall be in writing and any
payment, notice or other communications shall be deemed given when
delivered personally, or mailed by certified mail or Federal Express; postage
prepaid, with return receipt requested, and addressed in accordance with the
listing set forth in Attachment III hereto.
27. Entire Agreement. This Agreement embodies the entire agreement
between the parties and there are no other agreements, representations,
warranties, or understandings, oral or written, between them with respect to the
subject matter hereof. No alterations, modification or change of this Agreement
shall be valid unless by like written instrument.
28. Severability. The event that any of the provisions contained in this
Agreement is held to be invalid, illegal or unenforceable shall not affect any
other provision hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provisions had not been contained herein,
subject to Broker's right to terminate pursuant to Paragraphs 15 and 18 hereof.
29. Counterpart Signatures. This Agreement may be signed in one or more
counterparts, each of which shall be deemed a duplicate original, binding on the
parties hereto notwithstanding that the parties are not signatory to the
original or the same counterpart. This Agreement shall be binding and effective
as of the date on which the executed counterparts are exchanged by the parties.
IN WITNESS WHEREOF, the parties have executed this Time Brokerage
Agreement as of the date first above written.
RKZ TELEVISION INC.
By: _________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇▇▇▇ COMMUNICATIONS
COMPANY
By: _________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
TIME BROKERAGE AGREEMENT
ATTACHMENT I
(1) During the term of this Agreement, Broker shall pay to Licensee on
the first day of each calendar month an "Expenses Payment" plus a "TBA Payment"
by wire transfer or check. The Expenses Payment shall reimburse Licensee for all
of its monthly legitimate and prudent expenses in operating the Station pursuant
to this Agreement, as set forth in the budget of anticipated Licensee expenses
attached hereto as Attachment IV. Pursuant to such budget, the monthly Expenses
Payment shall initially be $24,500.00 per month. The TBA Payment shall equal
$15,000.00 per month until all Governmental Approvals for the Station Tower, as
defined in the Option Agreement, have been obtained, after which the TBA Payment
shall be increased to $30,000.00 per month. In addition to the above, a
supplemental TBA Payment of $3,000 per month shall be paid by Broker to Licensee
commencing forty-eight (48) months from the date hereof.
(2) There shall be a settlement at the end of each calendar year where
the actual legitimate and prudent operating expenses of Licensee relating to the
Station are compared to the Expenses Payments paid that calendar year by Broker
to Licensee. To the extent, if any, that the actual legitimate and prudent
operating expenses are more or less than those paid by Broker, going forward,
the monthly Expenses Payment shall be increased or decreased by the amount of
overpayment or underpayment.
(3) Licensee shall submit to Broker no later than thirty (30) days prior
to the end of each calendar year a proposed budget for the upcoming calendar
year. Broker and Licensee shall agree in good faith on an amount for the
upcoming year's budgeted expenses no later than September 30 of each year.
TIME BROKERAGE AGREEMENT
ATTACHMENT II
TIME BROKERAGE AGREEMENT
ATTACHMENT III
If the notice is to Licensee:
RKZ Television, Inc.
c/▇ ▇▇▇▇▇▇ Communications Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to (which shall not constitute notice):
Haley, Bader & ▇▇▇▇▇ P.L.C.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
If the notice is to Broker:
▇▇▇▇▇▇▇▇▇▇ Communications Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to (which shall not constitute notice):
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
TIME BROKERAGE AGREEMENT
ATTACHMENT IV
Station Operating Budget
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
Calculation of Expenses relating to LMA
WJSU
Technical
Technical Personnel
Salary 3,667
Insurance 590
Payroll Tax 281
Unemployment Ins. 128
Repairs & Maintenance 650
Utilities 4,900
General
General Manager
Salary 3,423
Insurance 590
Payroll Tax 262
Unemployment Ins. 245
Lease Payment 3,155
Utilities 900
Telephone-Svc. Chg./Maint. 1,000
Repairs & Maintenance 300
Property Insurance 3,820
Property Tax 500
Payroll Service 50
_______
24,462
LETTER AMENDMENT TO WJSU TIME BROKERAGE
December 29, 1995
RKZ Television, Inc.
c/▇ ▇▇▇▇▇▇ Communications Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: WJSU-TV, Anniston, Alabama (the "Station")
Gentlemen:
Reference is hereby made to that certain Time Brokerage Agreement, dated
as of December 21, 1995 (the "Brokerage Agreement"), by and between RKZ
Television, Inc., a Delaware corporation ("Licensee") and ▇▇▇▇▇▇▇▇▇▇
Communications Company, a Delaware corporation ("Broker"). Capitalized terms
used but not otherwise defined herein shall have the meanings ascribed to such
terms in the Brokerage Agreement.
Notwithstanding anything to the contrary set forth in the Brokerage
Agreement or otherwise, this letter agreement (the "Letter Agreement") sets
forth our agreement with respect to the following matters:
1. Station Employees. Licensee and Broker acknowledge and agree that
after February 1, 1996, the "expenses" of Licensee which the Broker agrees to
reimburse pursuant to Attachment I of the Brokerage Agreement shall not include
any compensation or other remuneration for any employee (or former employee) of
the Station (other than the General Manager and Chief Engineer). Broker shall be
entitled, but not obligated, to offer employment to any of the employees of
Licensee other than the General Manager and Chief Engineer on or before February
1, 1996. Licensee shall be liable and responsible for any salary, commission,
bonus, benefit plan contribution, or other compensation or benefit of the
employees (or former employees) of the Station arising or incurred prior to the
Commencement Date, and such payments shall not be deemed expenses reimbursable
pursuant to Attachment I of the Brokerage Agreement.
2. Programming Revenue. Licensee and Broker acknowledge and agree that
all programs broadcast or selected for broadcast by Broker pursuant to
contracts, the obligations for which have been assumed by Broker pursuant to
Section 7 of the Brokerage Agreement, shall be deemed Programming for purposes
of the Brokerage Agreement, and Broker shall be entitled to all revenue derived
in connection therewith, including without limitation any network compensation
pursuant to the Affiliation Agreement by and between Licensee and CBS Affiliate
Relations dated as of December 4, 1992, as amended. Exhibit A hereto, listing
the existing program agreements of Licensee, shall be deemed to be Attachment II
to the Brokerage Agreement.
3. Studio Lease. Licensee acknowledges that the lease for studio space
in Anniston, Alabama terminated as of July 5, 1994. Licensee agrees that in the
event that the new lease, presently being negotiated, should provide for a lease
term of greater than six (6) months, Licensee must obtain the prior written
consent of Broker, which consent will not be unreasonably withheld prior to
entering into such lease.
4. Miscellaneous. This Letter Agreement and the covenants and agreements
set forth herein shall be binding upon and inure solely to the benefit of the
signatory parties hereto (and their successors and assigns as permitted under
the Brokerage Agreement). This Letter Agreement shall be deemed to amend the
Brokerage Agreement and to the extent that any of the terms or conditions herein
are inconsistent or conflict with the forms or conditions of the Brokerage
Agreement, the terms and conditions of this Letter Agreement shall govern.
Please acknowledge your understanding of and agreement with the
foregoing by signing this Letter Agreement in the spaces provided below,
retaining one original for your files and returning the other original to Broker
in the manner provided in the Brokerage Agreement.
Sincerely,
▇▇▇▇▇▇▇▇▇▇ COMMUNICATIONS
COMPANY
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
ACCEPTED AND AGREED TO THIS __th DAY OF December, 1995:
RKZ TELEVISION, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President