EXHIBIT 10.24
Execution Copy
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
MISSION BROADCASTING OF JOPLIN, INC.
"BUYER"
AND
GOCOM BROADCASTING OF JOPLIN, LLC
AND
GOCOM OF JOPLIN LICENSE SUB, LLC
"SELLERS"
Dated as of December 31, 2001
TABLE OF CONTENTS
ARTICLE I DEFINITIONS........................................................1
1.1 Definitions......................................................1
1.2 Singular/Plural; Gender..........................................9
ARTICLE II PURCHASE AND SALE................................................10
2.1 Purchase and Sale...............................................10
2.2 Payment of Purchase Price.......................................10
2.3 Closing Date Deliveries.........................................10
2.4 Proration; Adjustments to Purchase Price........................10
2.5 Taxes...........................................................13
2.6 [Intentionally Omitted].........................................13
2.7 Allocation of Purchase Price....................................13
2.8 Access..........................................................13
2.9 Accounts Receivable.............................................14
ARTICLE III GOVERNMENTAL APPROVALS AND CONTROL OF STATION...................15
3.1 FCC Consent.....................................................15
3.2 Control Prior to Closing........................................15
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLERS........................15
4.1 Organization....................................................15
4.2 Authorization; Enforceability...................................16
4.3 Absence of Conflicting Agreements...............................16
4.4 Purchased Assets................................................17
4.5 Title to Purchased Assets; Liens and Encumbrances...............17
4.6 Equipment.......................................................17
4.7 The Contracts...................................................17
4.8 Intangible Property.............................................18
4.9 Real Property...................................................18
4.10 The Leases......................................................19
4.11 Financial Statements and Interim Financial Statements...........20
4.12 No Changes......................................................20
4.13 No Litigation; Labor Disputes; Compliance with Laws.............21
4.14 Taxes...........................................................22
4.15 Governmental Authorizations.....................................22
4.16 Compliance with FCC Requirements................................23
4.17 Insurance.......................................................23
4.18 Brokers.........................................................23
4.19 Employees.......................................................23
4.20 Financial Benefit Plans.........................................23
4.21 Environmental Compliance........................................24
4.22 Affiliation Agreement...........................................25
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER...........................25
5.1 Organization....................................................25
5.2 Authorization; Enforceability...................................25
5.3 Absence of Conflicting Laws and Agreements......................26
5.4 Brokers.........................................................26
5.5 FCC Qualification...............................................26
5.6 Financing.......................................................26
5.7 Due Diligence...................................................26
5.8 Absence of Litigation...........................................27
ARTICLE VI CERTAIN MATTERS PENDING THE CLOSING..............................27
6.1 Notice of Adverse Changes.......................................27
6.2 Operations Pending Closing......................................27
6.3 Reports.........................................................28
6.4 Consents........................................................28
6.5 Cooperation; Reasonable Efforts; Release........................28
6.6 Tax Returns and Payments........................................29
6.7 Release of Liens................................................29
6.8 Public Announcement.............................................29
6.9 Exclusivity.....................................................30
6.10 Real Estate Matters.............................................30
6.11 Access and Information..........................................30
ARTICLE VII CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER................31
7.1 Compliance with Agreement.......................................31
7.2 Representations and Warranties..................................31
7.3 Deliveries at Closing...........................................32
7.4 Other Documents.................................................32
7.5 [Intentionally deleted.]........................................32
7.6 Absence of Investigations and Proceedings.......................32
7.7 FCC Consent.....................................................32
7.8 Licenses........................................................32
7.9 Release of Liens................................................32
ARTICLE VIII CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLERS.............33
8.1 Compliance with Agreement.......................................33
8.2 Representations and Warranties..................................33
8.3 Deliveries at Closing...........................................33
8.4 Other Documents.................................................33
8.5 Absence of Investigations and Proceedings.......................33
8.6 Governmental Consents...........................................33
8.7 Required Consent and Release....................................33
ARTICLE IX INDEMNIFICATION..................................................34
9.1 Survival of Representations and Warranties......................34
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9.2 Survival of Covenants and Agreements............................34
9.3 Indemnification by Sellers......................................34
9.4 Indemnification by Buyer........................................35
9.5 Remedies........................................................36
9.6 Certain Limitations of Liability................................37
9.7 Survival........................................................37
9.8 Determination of Loss and Amount................................37
ARTICLE X FURTHER AGREEMENTS................................................38
10.1 Event of Loss...................................................38
10.2 Station Employees...............................................38
10.3 Non-Competition.................................................39
ARTICLE XI TERMINATION; MISCELLANEOUS.......................................39
11.1 Termination.....................................................39
11.2 Rights on Termination; Waiver...................................40
11.3 Further Assurances..............................................41
11.4 Survival........................................................41
11.5 Entire Agreement; Amendment; Waivers............................41
11.6 Expenses........................................................42
11.7 Benefit; Assignment.............................................42
11.8 Confidentiality.................................................42
11.9 Notices.........................................................43
11.10 Counterparts; Headings..........................................44
11.11 Income Tax Position.............................................44
11.12 Severability....................................................44
11.13 No Reliance.....................................................44
11.14 Judicial Interpretation.........................................45
11.15 Saturdays, Sundays and Legal Holidays...........................45
11.16 Governing Law...................................................45
EXHIBITS
Assumption Agreement.................................................Exhibit A
▇▇▇▇ of Sale and Assignment..........................................Exhibit B
Buyer's Closing Certificate..........................................Exhibit C
Buyer's Performance Certificate......................................Exhibit D
Assignment and Assumption of Contracts...............................Exhibit E
Assignment and Assumption of Leases..................................Exhibit F
Sellers' Closing Certificate.........................................Exhibit G
Sellers' Performance Certificate.....................................Exhibit H
Assignment and Assumption of Registered Trademarks...................Exhibit I
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SCHEDULES
1.1 Assumed Liabilities
1.2 Contracts
1.2A Available Program Runs
1.3 Copyrights
1.4 Equipment
1.5 Leases
1.6 Licenses
1.7 Motor Vehicles
1.8 Permitted Liens
1.9 Real Property
1.10 Retained Assets
1.11 Trademarks
4.3 Conflicting Agreements of Sellers
4.5 Title Exceptions/Locations - Personal Property
4.7 Contract Exceptions
4.8 Intangible Property Exceptions
4.9 Real Property Exceptions
4.10 Lease Exceptions
4.11(a) Financial Statements
4.11(b) Interim Financial Statements
4.12 Changes
4.13 Litigation
4.14 Tax Exceptions
4.15 FCC License Exceptions
4.16 FCC Equipment Exceptions
4.17 Insurance
4.19 Employees
4.20 Financial Benefit Plans
4.21 Environment
5.3 Conflicts of Buyer
7.6 Investigations and Proceedings
8.7 Required Consents and Releases
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made this 31st day of December, 2001,
by and between GOCOM Broadcasting of Joplin, LLC, a Delaware limited liability
company ("Non-License Seller"), GOCOM of Joplin License Sub, LLC, a Delaware
limited liability company ("License Seller") (each a "Seller" and collectively,
"Sellers"), and Mission Broadcasting of Joplin, Inc., a Delaware corporation
("Buyer").
R E C I T A L S:
A. The License Seller owns those licenses, permits and authorizations
issued by the FCC, together with certain related assets (collectively, the "FCC
License Assets") relating to commercial television broadcast Station KODE-TV, in
Joplin, Missouri (the "Station")
B. Non-License Seller owns the assets of the Station, other than the FCC
License Assets.
▇. ▇▇▇▇▇▇▇ are willing to sell to Buyer and Buyer is willing to purchase
from Sellers, substantially all of the assets, business, properties and rights
of Sellers related to the conduct of the Station on the terms and subject to the
conditions set forth herein.
▇. ▇▇▇▇▇▇▇ and Buyer are entering into a Time Brokerage Agreement ("TBA
Agreement") simultaneously with the execution and delivery of this Agreement
pursuant to which Buyer will provide programming to the Station and sell
advertising time related to such programming, and Seller will air such
programming and advertising, subject to the terms of the TBA Agreement.
NOW, THEREFORE, in consideration of the Recitals and of the mutual
covenants, conditions and agreements set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Except as specified otherwise, when used in this
Agreement, the following terms shall have the meanings specified:
"ABC" shall mean American Broadcasting Companies, Inc.
"Accounts Payable" shall mean all accounts payable of Sellers (other than
Tradeout Payables) related to the Station as of any date or time of
determination as determined in accordance with generally accepted accounting
principles and Section 2.4; provided that in no event shall "Accounts Payable"
include the accrued vacation of employees;
"Accounts Receivable" shall mean all accounts receivable of Sellers (other
than Tradeout Receivables) related to the Station as of any date or time of
determination as determined in accordance with generally accepted accounting
principles and Section 2.4;
"Adjustment Amount" shall have the meaning set forth in Section 2.4(d);
"Adjustment List" shall have the meaning set forth in Section 2.4(d);
"Adjustment Time" shall have the meaning set forth in Section 2.4(a);
"Affiliate" of a Person shall mean any other Person that directly or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with such Person;
"Affiliation Agreement" shall mean the network affiliation agreement by
and between ABC and Eastern Broadcasting Corporation, predecessor-in-interest of
Sellers, dated as of November 22, 1995, as amended and supplemented.
"Agreement" shall mean this Purchase and Sale Agreement, together with the
Schedules and the Exhibits attached hereto, as the same shall be amended from
time to time in accordance with the terms hereof;
"Assumed Contract" shall mean any Contract described in clause (b) of the
definition of the term "Assumed Liabilities";
"Assumed Liabilities" shall mean (a) the liabilities of Sellers, if any,
listed on Schedule 1.1; (b) the obligations of Sellers under (i) the Contracts
listed on Schedule 1.2, (ii) Contracts not required pursuant to Section 4.7 to
be listed on Schedule 1.2 (other than Contracts described in clauses (iii) or
(iv) of Section 4.7(a)), (iii) Contracts entered into after the date hereof and
prior to the Closing Date in accordance with this Agreement, and (iv) the
Leases, in each case arising from and accruing with respect to the operation of
the Station after the Closing Date, and in each case except those Contracts and
Leases, if any, included in the Retained Assets; (c) the liabilities,
obligations and claims resulting from the operation of the Station following (i)
the Adjustment Time and prior to the Closing Date to the extent such
liabilities, obligations and claims have actually been taken into account in
adjusting the Purchase Price pursuant to Section 2.4, and (ii) the effective
time of the Closing; (d) liabilities under Permitted Liens and (e) Buyer's
obligations and liabilities under Section 10.2; provided that, without affecting
Sellers' rights under the TBA Agreement, Assumed Liabilities shall not include
(A) liabilities of Sellers arising out of any facts, circumstances or actions
that constitute a misrepresentation or breach of any warranty or covenant by
Sellers made in this Agreement or the TBA Agreement, (B) the Sellers'
obligations under this Agreement or the TBA Agreement, (C) liabilities arising
out of the termination of employees of the Station prior to the Adjustment Time,
(D) any indebtedness for borrowed money of the Sellers, (E) any income taxes
incurred by the Sellers during the period of operations under the TBA Agreement,
(F) any liabilities of Sellers resulting from, or arising out of, relating to,
in the nature of or caused by any breach of contract, breach of warranty, tort,
infringement, claim or lawsuit relating to any Assumed Contract for the period
prior to the Adjustment Time, (G) the liabilities of Sellers for the accrued
vacation of their employees, and (H) any liabilities and obligations under the
Master Site Lease Agreement that is part of the SpectraSite Agreements which
relate to the period prior to the Closing or relate to any property not included
in the Purchased Assets or arise under Section 2.7 thereof (unless, with respect
to such Section 2.7, Buyer's lenders consent to such assumption);
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"Assumption Agreement" shall mean an instrument in the form of Exhibit "A"
attached hereto by which the Assumed Liabilities shall be assumed by Buyer;
"Benefit Arrangements" shall mean a benefit program or practice of Sellers
providing for bonuses, incentive compensation, vacation pay, severance pay,
insurance, restricted stock, stock options, employee discounts, company cars,
tuition reimbursement or any other perquisite or benefit (including, without
limitation, any fringe benefit under Section 132 of the Code) to employees,
officers or independent contractors that is not a Plan;
"▇▇▇▇ of Sale and Assignment" shall mean an instrument in the form of
Exhibit "B" attached hereto, by which Sellers shall convey to Buyer title to the
Customer Lists, the Equipment, the Intangible Property, the Licenses, the
Miscellaneous Assets, the Motor Vehicles, the Records and the Trade Secrets;
"Buyer's Closing Certificate" shall mean the certificate of Buyer in the
form of Exhibit "C" attached hereto;
"Buyer's Opinion of Counsel" shall mean the opinion of counsel of Buyer in
a form reasonably acceptable to Buyer and Sellers;
"Buyer's Performance Certificate" shall mean the certificate of Buyer in
the form of Exhibit "D" attached hereto;
"Cable Act" shall mean the Cable Television Consumer Protection and
Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992), as amended;
"Cash" shall mean all moneys of Sellers, whether in the form of cash, cash
equivalents, marketable securities, short-term investments or deposits in bank
or other financial institution accounts of any kind;
"Closing" shall mean the conference to be held at 10:00 a.m., New York,
New York time on the Closing Date at such place as the parties may mutually
agree to in writing, at which time the transactions contemplated by this
Agreement shall be consummated;
"Closing Date" shall mean (a) September 30, 2002 or such later date on
which a Final Order is issued, unless extended as provided in Section 7.1, or
(b) such other date as Buyer and Sellers may agree upon in writing. The Closing
shall be deemed effective as of 12:01 a.m., Joplin, Missouri time, on the
Closing Date;
"Code" shall mean the Internal Revenue Code of 1986, as amended;
"Collections" shall have the meaning set forth in Section 2.9;
"Collection Period" shall have the meaning set forth in Section 2.9;
"Communications Act" means the Communications Act of 1934, as amended,
together with the rules, regulations and policies of the FCC;
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"Contract Assignment" shall mean the Assignment and Assumption of
Contracts, in the form of Exhibit "E" attached hereto, by which Sellers shall
assign the Assumed Contracts to Buyer and Buyer shall assume the Assumed
Liabilities arising under such Contracts;
"Contracts" shall mean those agreements (other than those included in the
Retained Assets and other than the Leases) under which the business of the
Station is conducted by Sellers, whether written, oral or implied, including all
contractual obligations incurred by Sellers for the Program Rights, including
without limitation those agreements listed on Schedule 1.2;
"Copyrights" shall mean all rights of Sellers to copyrights and copyright
applications related to the Station, including without limitation those items
described on Schedule 1.3;
"Customer Lists" shall mean all lists, documents, written information and
computer tapes and programs and other computer readable media used by or in
Sellers' possession concerning past, present and potential purchasers of
advertising or services from the Station;
"Eligible Employees" shall have the meaning set forth in Section 10.2;
"Environmental Laws" shall mean the rules and regulations of the FCC, the
Environmental Protection Agency and any other federal, state or local government
authority pertaining to human exposure to RF radiation and all applicable rules
and regulations of federal, state and local laws, including statutes,
regulations, ordinances, codes, and rules, as amended, relating to the discharge
or removal of air pollutants, water pollutants or process waste water or
hazardous or toxic substances, including, but not limited to, the Federal Solid
Waste Disposal Act, the Federal Clean Air Act, the Federal Clean Water Act, the
Federal Resource Conservation and Recovery Act of 1976, the Federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
and the Occupational Safety and Health Act of 1970, each as amended, regulations
of the Environmental Protection Agency, regulations of the Nuclear Regulatory
Agency, regulations of the Occupational Safety and Health Administration and
regulations of any state department of natural resources or state environmental
protection agency, now in effect;
"Equipment" shall mean all machinery, equipment, furniture, fixtures,
furnishings, toolings, parts, blank films and tapes and other items of tangible
personal property owned or leased by Sellers which are used or useable in the
operation of the Station, including without limitation to those items listed on
Schedule 1.4;
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended;
"Event of Loss" shall mean any loss, taking, condemnation, damage or
destruction of or to any of the Purchased Assets or the Station;
"FCC" means the Federal Communications Commission;
"FCC Consent" shall mean action by the FCC granting its consent to the
assignment of the Licenses from Sellers to Buyer;
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"Final Order" shall mean an FCC Consent, with respect to which no action,
request for stay, petition for rehearing or reconsideration, appeal or review by
the FCC on its own motion is pending and as to which the time for filing or
initiation of any such request, petition, appeal or review has expired;
"Financial Statements" shall mean the financial statements of Sellers
described in Section 4.11(a);
"Financing Lease" shall mean any Lease that is properly characterized as a
capitalized lease obligation in accordance with generally accepted accounting
principles;
"Hazardous Materials" shall mean any wastes, substances, or materials
(whether solids, liquids or gases) that are deemed hazardous, toxic, pollutants,
or contaminants, including without limitation, substances defined as "hazardous
wastes," "hazardous substances," "toxic substances," "radioactive materials," or
other similar designations in, or otherwise subject to regulation under, any
Environmental Laws. "Hazardous Materials" includes but is not limited to
polychlorinated biphenyls (PCB's) asbestos, lead-based paints, infectious
wastes, radioactive materials and wastes and petroleum and petroleum products
(including, without limitation, crude oil or any fraction thereof);
"Indemnity Deductible" shall have the meaning set forth in Section 9.6(c);
"Intangible Property" shall mean: (a) the Copyrights; (b) the Trademarks;
(c) the Trade Secrets; (d) all of the rights of the Sellers in and to the call
letters "KODE-TV" or "KODE"; and (e) all rights of Sellers in and to all
slogans, phrases or logos of the Station; and (f) all goodwill associated
therewith and with the other Purchased Assets;
"Interim Financial Statements" shall mean the financial statements of
Sellers described in Section 4.11(b);
"Internet Web Sites" means all internet domain names of the Station, and
all rights that the Station or Sellers has in the HTML content relating to the
Station located and publicly accessible from those domain names, and the
"visitor" email data base for those sites;
"Knowledge of Sellers" or "to the Sellers' Knowledge" shall mean,
collectively, the actual knowledge without independent investigation of (i) ▇▇▇
▇▇▇▇▇▇, (ii) the Station's general manager, and (iii) the Station's business
manager ("Knowledge of Sellers" or "to the Sellers' Knowledge" shall in no event
involve any constructive knowledge of such individuals);
"Lease Assignment" shall mean the Assignment and Assumption of Leases in
the form of Exhibit "F" attached hereto, by which Sellers shall assign to Buyer
the Leases or in the case of Leases of Real Property, in such other form as is
reasonably acceptable to the Title Company;
"Leases" shall mean those leases of Real Property and Equipment related to
the Station as listed on Schedule 1.5;
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"Licenses" shall mean all licenses, permits and authorizations issued by
the FCC to Sellers for the operation of the Station and all auxiliary facilities
licensed by the FCC for operation in connection with the Station, as listed on
Schedule 1.6;
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
security interest, encumbrance, claim, lien, lease (including any capitalized
lease) or charge of any kind, whether voluntarily incurred or arising by
operation of law or otherwise, affecting any of the Purchased Assets or the
Station, including any agreement to give or grant any of the foregoing, any
conditional sale or other title retention agreement and the filing of or
agreement to give any financing statement with respect to any of the Purchased
Assets or the Station under the Uniform Commercial Code of the State of Missouri
or comparable law of any jurisdiction;
"Material Adverse Effect" shall mean a material adverse effect on (i) the
present or future business, operations, financial condition or results of
operations of the Station, in each case taken as a whole, exclusive of (a)
general changes to the national economy or the economy of the Station's
Designated Market Area, (b) conditions affecting the national television
broadcast industry generally or the television broadcast industry in the
Station's Designated Market Area generally, and (c) the effects of the taking of
any action expressly required by or contemplated under this Agreement or the TBA
Agreement, or (ii) the ability of Sellers, taken as a whole, to perform their
material obligations under this Agreement or the TBA Agreement;
"Miscellaneous Assets" shall mean all tangible and intangible assets owned
by, leased by or licensed to Sellers and used or useable in the operation of the
Station and not otherwise specifically referred to in this Agreement, including
any warranties related to any of the Purchased Assets, excepting therefrom only
the Retained Assets;
"Motor Vehicles" shall mean all motor vehicles owned by Sellers related to
the operation of the Station including without limitation those listed on
Schedule 1.7;
"Motor Vehicle Title Certificates" shall mean the official evidences of
title to the Motor Vehicles;
"Parent" shall have the meaning set forth in Section 6.5;
"Permitted Liens" shall mean (i) Liens imposed by any governmental
authority for Taxes not yet due and/or which are being contested in good faith
and by appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Sellers in accordance with GAAP; (ii) carriers',
warehousemen's, mechanics', materialmen's, repairmen's or other non-consensual
Liens arising in the ordinary course of business and securing amounts not yet
due and payable or which are being contested in good faith and by appropriate
proceedings, if adequate reserves with respect thereto are maintained on the
books of the Sellers in accordance with GAAP; (iii) pledges or deposits in
connection with worker's compensation, unemployment insurance and other social
security legislation; (iv) deposits to secure the performance of any or all of
the following: bids, trade contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business; (v)
easements, rights-of-way, restrictions and other similar encumbrances on real
property incurred in the ordinary course of business, and
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encroachments (whether or not in the ordinary course of business), which do not
secure any monetary amount and which do not in any case materially detract from
the value of the property subject thereto or materially interfere with the
ordinary conduct of the business thereon; and (vi) all of the exceptions
reflected in Schedule 1.8 or the title insurance policies attached thereto,
provided the Liens on the Purchased Assets granted to FINOVA Capital
Corporation, as agent (collectively, the "Debtholders") are to be released at
Closing. Schedule 1.8 also sets forth a list of the Liens described in clauses
(i) and (ii) above as Liens which are being contested in good faith;
"Person" shall mean any natural person, general or limited partnership,
corporation, limited liability company or other entity;
"Plan" shall mean any plan, program or arrangement, whether or not
written, that is or was (a) an "employee benefit plan" as such term is defined
in Section 3(3) of ERISA and (i) which was or is established or maintained by
Sellers; (ii) to which Sellers contributed or was obligated to contribute or to
fund or provide benefits; or (iii) which provides or promises benefits to any
person who performs or who has performed services for Sellers and because of
those services is or has been (A) a participant therein or (B) entitled to
benefits thereunder; (b) an "employee pension benefit plan" as such term is
defined in Section 3(2) of ERISA, including, without limitation, any such plan
that satisfies, or is intended by Sellers to satisfy, the requirements for tax
qualification described in Section 401 of the Code; (c) a "multiemployer plan"
as such term is defined in Section 3(37) of ERISA; or (d) an "employee welfare
benefit plan" as such term is defined in Section 3(1) of ERISA;
"Pre-TBA Receivables" shall have the meaning set forth in Section 2.9;
"Program Contracts" shall have the meaning set forth in Section 2.4(b);
"Program Payments" shall have the meaning set forth in Section 2.4(b);
"Program Rights" shall mean all rights of Sellers presently existing or
obtained prior to the Closing, in accordance with this Agreement, to broadcast
television programs or shows as part of the Station's programming and for which
Sellers are or will be obligated to compensate the vendor of such Program
Rights, including all film and program barter agreements;
"Purchased Assets" shall mean all rights of Sellers in, to and under all
assets used or useable in the operation of the Station, including but not
limited to (a) the Contracts; (b) the Customer Lists; (c) the Equipment; (d) the
Intangible Property; (e) the Leases; (f) the Licenses; (g) the Miscellaneous
Assets; (h) the Motor Vehicles; (i) the Real Property; (j) the Records; (k) the
Trade Secrets; and (l) Internet Web Sites; in each case, other than the Retained
Assets;
"Purchase Price" shall mean the sum of Fourteen Million Dollars
($14,000,000.00), as adjusted pursuant to Section 2.4;
"Real Property" shall mean the real property owned in fee simple or
leasehold by Sellers more particularly described on Schedule 1.9, and all
buildings, improvements and fixtures thereon, together with all strips and
gores, rights of way, easements, strips and gores privileges
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and appurtenances pertaining thereto, including any right, title and interest of
Sellers in and to any street adjoining any portion of the Real Property;
"Records" shall mean files and records, including schematics, technical
information and engineering data, programming information, correspondence, books
of account, employment records, customer files, purchase and sales records and
correspondence, advertising records, files and literature, and FCC logs, files
and records and other written materials of Sellers relating to the Station other
than those that are Retained Assets; provided, however, that Records shall not
mean or include the certificates of formation, limited liability company
agreements, bylaws, qualifications to conduct business as a foreign limited
liability company, arrangements with registered agents relating to foreign
qualification, taxpayer and other identification numbers, seals, minute books,
and other documents and records relating to the organization, maintenance and
existence of Sellers as limited liability companies;
"Retained Assets" shall mean (a) Cash; (b) Pre-TBA Receivables (subject to
Buyer's right to collect and use the proceeds of same as provided in Section 2.9
hereof); (c) any and all claims of Sellers with respect to transactions prior to
the Closing Date including, without limitation, claims for tax refunds and
refunds of fees paid to the FCC, except to the extent any such item was taken
into account in adjusting the Purchase Price pursuant to Section 2.4 or relates
to Assumed Liabilities or the Purchased Assets; (d) all contracts of insurance
entered into by Sellers; (e) all rights and obligations under any agreements
listed on Schedule 1.10; (f) those other assets, if any, described on Schedule
1.10; (g) all assets related to Seller's Station Employee Benefit Plans; (h) the
records and other documents described in the proviso to the definition of
Records above; and (i) any of the rights of Sellers under this Agreement, the
TBA Agreement and under any agreement or documents executed or to be executed in
connection herewith or therewith or any side agreement between Sellers and Buyer
entered into on or after the date of this Agreement;
"Retained Liabilities" shall mean all the obligations and liabilities of
Sellers whether now existing or previously or hereafter incurred other than the
Assumed Liabilities;
"Schedules" shall mean those schedules referenced to in this Agreement
which have been bound in that separate volume executed by or on behalf of the
parties, and delivered concurrently with the execution of this Agreement, which
schedules and volume are hereby incorporated herein and made a part hereof;
"Sellers' Closing Certificate" shall mean the certificate of Sellers in
the form of Exhibit "G" attached hereto;
"Sellers' Opinion of Counsel" means the legal opinion of counsel to
Sellers addressed to Buyer in a form reasonably acceptable to Buyer and Sellers;
"Sellers' Performance Certificate" shall mean the certificate of Sellers
in the form of Exhibit "H" attached hereto;
"SpectraSite Agreements" shall mean the lease, site and other agreements
by and between SpectraSite Broadcast Towers, Inc. ("SpectraSite") and
Non-License Seller and among
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SpectraSite, Non-License Seller, GOCOM Holdings, LLC and its subsidiaries, in
each case pertaining to KODE listed in Schedule 1.2 or Schedule 1.5;
"Station" shall have the meaning set forth in the Recitals;
"Station Employee Benefit Plans" shall mean any Plan or Benefit
Arrangement in which any current, former or retired employee of the Sellers
participates;
"TBA Agreement" shall have the meaning set forth in the recitals;
"Title Commitment" shall have the meaning set forth in Section 6.2;
"Title Company" shall mean First American Title Insurance Company, or such
other title insurance company reasonably acceptable to Sellers;
"Title Policy" shall have the meaning set forth in Section 6.2;
"Trade Secrets" shall mean all proprietary or confidential information of
Sellers relating to the Station;
"Trademarks" shall mean all of those names, trademarks, service marks,
jingles, slogans, logos, trademark and service ▇▇▇▇ registrations and trademark
and service ▇▇▇▇ applications owned, used, held for use, licensed by or leased
by Sellers relating to the Station including without limitation those set forth
on Schedule 1.11;
"Trademark Assignment" shall mean an instrument, in the form of Exhibit
"I" attached hereto, by which Sellers shall convey to Buyer the Trademarks;
"Tradeout Agreement" shall mean any Contract pursuant to which Sellers
have sold or traded commercial air time of the Station in consideration for any
property or services in lieu of or in addition to Cash, excluding film and
program barter agreements;
"Tradeout Payables" means all obligations of Sellers arising under any
Tradeout Agreement, whenever made;
"Tradeout Receivables" means all current assets of Sellers that are goods
or services receivable by any Seller arising under any Tradeout Agreement,
whenever made;
"Warranty Deed" shall mean a special or limited warranty deed in a form
acceptable to the Title Company pursuant to which Sellers shall convey to Buyer
at the Closing the Real Property owned by Sellers, subject only to Permitted
Liens.
1.2 Singular/Plural; Gender. Where the context so requires or permits, the
use of the singular form includes the plural, and the use of the plural form
includes the singular, and the use of any gender includes any and all genders.
Except as specifically set forth herein, all Section and Article references are
to Sections and Articles of this Agreement.
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ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale. At the Closing on the Closing Date, and upon all of
the terms and subject to all of the conditions of this Agreement, Sellers shall
sell, assign, convey, transfer and deliver to Buyer, and Buyer shall purchase
the Purchased Assets, including all of Sellers' legal and equitable interests
therein. Notwithstanding any provision of this Agreement to the contrary,
Sellers shall not transfer, convey or assign to Buyer, but shall retain, all of
its right, title and interest in and to the Retained Assets.
2.2 Payment of Purchase Price.
(a) On the date of this Agreement, Buyer shall pay to Sellers, by
wire transfer in immediately available funds, the sum of Six Million Dollars
($6,000,000.00);
(b) At Closing, Buyer shall pay to Sellers, by wire transfer in
immediately available funds, an amount equal to the Purchase Price (as adjusted
pursuant to Section 2.4 below), less the amount paid pursuant to Section 2.2(a);
and
(c) At Closing, Buyer shall assume the Assumed Liabilities pursuant
to the Assumption Agreement.
2.3 Closing Date Deliveries. At the Closing on the Closing Date:
(a) Sellers shall deliver, or cause to be delivered to Buyer,
properly executed and dated as of the Closing Date: (i) the Assumption
Agreement; (ii) the ▇▇▇▇ of Sale and Assignment; (iii) the Contract Assignment;
(iv) the Lease Assignment; (v) the Motor Vehicle Title Certificates; (vi)
Sellers' Closing Certificate; (vii) Sellers' Opinion of Counsel; (viii) Sellers'
Performance Certificate; (ix) the Trademark Assignment; (x) the Warranty Deed;
(xi) a certificate of existence or good standing with respect to each Seller
from the Secretary of State of Delaware and with respect to Non-License Seller
from the Secretary of State of Missouri; and (xii) such other documents as
provided in Article VII hereof or as Buyer shall reasonably request; and
(b) In addition to the payments described in Section 2.2, Buyer
shall deliver, or cause to be delivered to Sellers, properly executed and dated
as of the Closing Date: (i) the Assumption Agreement; (ii) the ▇▇▇▇ of Sale and
Assignment; (iii) Buyer's Closing Certificate; (iv) Buyer's Opinion of Counsel;
(v) Buyer's Performance Certificate; (vi) the Contract Assignment; (vii) the
Lease Assignment; (viii) the Trademark Assignment; (ix) a certificate of
existence or good standing with respect to Buyer from the Secretaries of State
of Delaware and Missouri; and (x) such other documents as provided in Article
VIII hereof or as Sellers shall reasonably request.
2.4 Proration; Adjustments to Purchase Price.
(a) For the purposes of (i) identifying the Purchased Assets,
Retained Assets, Assumed Liabilities and Retained Liabilities, (ii) determining
the adjustment to the Purchase Price, if any, to be made pursuant to this
Section 2.4, and (iii) identifying the Pre-TBA
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Receivables for the purpose of Section 2.9, all prepaid or deferred revenue,
prepaid expenses, accrued income and accrued expenses of the Station as of 12:01
a.m., Joplin, Missouri time on the date hereof (the "Adjustment Time") shall,
except as otherwise expressly provided herein, be adjusted and allocated between
Sellers and Buyer to reflect the principle that all revenue, income and expenses
(including, without limitation, accrued liabilities for vacation pay, sick pay,
compensatory pay and similar amounts, and amounts that may become payable in
respect of unlicensed software, whether or not Sellers' normally accrue such
amounts) arising from the operation of the Station or relating to the Purchased
Assets before the Adjustment Time shall be for the account of Sellers, and all
revenue, income and expenses arising from the operation of the Station or
relating to the Purchased Assets from and after the Adjustment Time shall be for
the account of Buyer (under this Agreement or the TBA Agreement). Any and all
rebates which, under any agreements in effect as of the Adjustment Time, may be
payable after such date to any advertiser or other user of the Station's
facilities, based in part on business, advertising or services prior to the
Closing Date, shall be borne by Sellers and Buyer ratably in proportion to
revenues received or volume of business done by each during the applicable
period. Any and all agency commissions which are subject to adjustment after the
Adjustment Time based on revenue, volume of business done or services rendered
in part before the Adjustment Time and in part after the Adjustment Time shall
be shared by Sellers, on the one hand, and Buyer, on the other hand, ratably in
proportion to the revenue, volume of business done or services rendered, as the
case may be, by each during the applicable period.
(b) Treatment of Program Liabilities. Notwithstanding anything to
the contrary set forth in Section 2.4(a) above, as between Buyer and Sellers
with respect to all Contracts relating to Program Rights ("Program Contracts"):
(i) Sellers will be allocated all obligations to make cash
payments of license and usage fees pursuant to any Program Contract
("Program Payments") which first becomes due and payable under the terms
of the Program Contract in question prior to the first day of the calendar
month which includes the Adjustment Time;
(ii) Buyer will be allocated all Program Payments which first
become due and payable under the terms of the Program Contract in question
after the last day of the calendar month which includes the Adjustment
Time; and
(iii) with respect to Program Payments which first become due
and payable under the terms of the Program Contract in question during the
calendar month which includes the Adjustment Time: (A) Sellers will be
allocated a portion of each such Program Payment which is equal to a
fraction, the numerator of which is the number of days (if any) in such
calendar month which are prior to the Adjustment Time and the denominator
of which is the total number of days in such calendar month, and (B) Buyer
will be allocated the remaining portion of such Program Payments.
(c) To the extent not inconsistent with the express provisions of
this Agreement, the allocations made pursuant to Sections 2.4(a) and (b) above
shall be made in accordance with generally accepted accounting principles.
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(d) Net settlement of the adjustments contemplated under Section
2.4(e) shall be made at the Closing by decreasing the Purchase Price
appropriately, if feasible based on Sellers' and Buyer's good faith estimates.
For items not readily subject to ascertainment at the Closing, the following
procedures shall apply. Buyer shall prepare and deliver to Sellers within thirty
(30) business days following the Closing Date, or such earlier or later date as
shall be mutually agreed to by Sellers and Buyer, an itemized list (the
"Adjustment List") of all sums which, as described in Section 2.4(e) below,
shall decrease the Purchase Price, with a brief explanation thereof. Such list
shall show the net amount of the decrease to the Purchase Price (the "Adjustment
Amount"). If the Adjustment Amount is a decrease to the Purchase Price, Sellers
shall pay such amount to Buyer. Except as provided otherwise in Section 2.4(f),
payment of the Adjustment Amount shall be made not later than fifteen (15)
business days following the delivery of the Adjustment List.
(e) The items set forth on the Adjustment List and the calculation
of the Adjustment Amount shall each reflect the understanding that the Purchase
Price shall be:
(i) decreased by the amount of all Accounts Payable existing
as of the Adjustment Time actually paid or assumed by Buyer or reimbursed
by Buyer to Sellers under the TBA Agreement (not including any Accounts
Payable which may have previously reduced the payment by Buyer to Sellers
of collections of Pre-TBA Receivables made pursuant to Section 2.9);
(ii) decreased by the amount, if any, by which Tradeout
Payables as of the Adjustment Time exceed Tradeout Receivables as of the
Adjustment Time by more than $15,000; and
(iii) decreased by the amount of all liabilities under
Financing Leases, if any, existing as of the Adjustment Time.
(f) Not later than fifteen (15) business days following the delivery
of the Adjustment List, Sellers may furnish Buyer with written notification of
any dispute concerning any items shown thereon or omitted therefrom together
with a detailed explanation in support of Sellers' position in respect thereof.
If Sellers do not furnish Buyer such a written notification during such fifteen
(15) business day period, then Buyer's determination of the Adjustment Amount
(as set forth in the Adjustment List) will be final and binding on Buyer and
Sellers as of the last day of such fifteen (15) business day period. If Sellers
do furnish Buyer such a written notification during such fifteen (15) business
day period, then Buyer and Sellers shall consult to resolve any such dispute for
a period of fifteen (15) business days following the notification thereof. In
the event of any such dispute, that portion of the Adjustment Amount that is not
in dispute shall be paid to the party entitled to receive the same on the day
for payment provided in Section 2.4(d). If such fifteen (15) business day
consultation period expires and the dispute has not been resolved, the matter
shall be referred to an independent "Big Five" public accounting firm mutually
agreed upon by Sellers and Buyer (the "Accountants"), which shall resolve the
dispute and shall render its decision (together with a brief explanation of the
basis therefor) to Buyer and Sellers not later than twenty (20) business days
following submission of the dispute to it; provided, however, if Buyer and
Sellers are unable to mutually agree upon an independent public accounting firm,
then Buyer and Sellers shall each choose an independent public
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accounting firm and those firms shall appoint a third independent public
accounting firm to act as the Accountants. The Accountants' determination of the
disputed portion of the Adjustment Amount (the "Disputed Amount") will become
final and binding on Buyer and Sellers on the business day after the date upon
which a written report setting forth such determination is delivered to Sellers
and Buyer. The Disputed Amount shall be paid by the party required to pay the
same within five (5) business days after the delivery of a copy of such decision
to Sellers and Buyer. The fees and expenses of the Accountants shall be shared
equally by Sellers, on the one hand, and Buyer on the other hand.
(g) The Adjustment List to the extent not disputed within the
specified period by Sellers, any mutually agreed written settlement of any such
dispute concerning the Adjustment List and any determination of disputed items
by the Accountants shall be final, conclusive and binding on the parties hereto
absent manifest error.
(h) Notwithstanding anything herein to the contrary, the Buyer shall
reimburse the Sellers (pursuant to an increase to the Purchase Price paid at
Closing) for the prepaid expenses set forth on Schedule A; provided that the
dollar amounts set forth on Schedule A are as of the date set forth on such
Schedule and the actual amounts to be reimbursed hereunder shall be those
amounts outstanding as of the date hereof as reasonably determined by the Buyer
and Sellers and subject to the proration procedures set forth above.
2.5 Taxes. All federal, state, local and other transfer, sales and use
taxes and recording costs applicable to, imposed upon or arising out of the
transfer to Buyer of the Purchased Assets as contemplated by this Agreement
shall be shared equally by Buyer on the one hand, and Sellers on the other.
2.6 [Intentionally Omitted]
2.7 Allocation of Purchase Price. The Purchase Price will be allocated
among each item or class of the Purchased Assets based upon (i) the mutual
agreement of Buyer and Sellers, or (ii) in the event Buyer and Sellers fail to
agree, an appraisal to be paid for by Buyer, to be conducted by a
nationally-recognized appraisal firm experienced in appraising, for tax
purposes, small-to-medium market television stations selected by Buyer and which
is reasonably acceptable to Sellers, under the residual method of allocating
assets, which allocation shall be incorporated in a schedule to be provided by
Buyer and executed by the parties within one hundred twenty (120) days after the
Closing. Buyer and Sellers each agree to report such allocation to the Internal
Revenue Service in the form required by Treasury Regulations Section 1.1060-1;
provided, however that nothing contained herein shall require Buyer or Sellers
to contest or litigate in any forum any proposed deficiency or adjustment by any
taxing authority or agency that may challenge the allocation determined pursuant
to this Section 2.7.
2.8 Access.
(a) Subject to Section 11.8(b), Sellers and their authorized agents,
officers and representatives, upon prior written request, shall have access to
the appropriate records of Buyer to conduct such examination and investigation
as Sellers deem necessary to assure compliance with this Article 2, and to
permit Sellers to comply with their tax reporting compliance
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requirements, provided that such examination and investigation shall be at
Sellers' sole cost and expense and shall be during the Station's normal business
hours, shall not unreasonably interfere with the Station's operations and
activities and shall not, after the consummation of the Closing, constitute
Sellers' exercising control over the Station under FCC rules, regulations or
guidelines.
(b) Subject to Section 11.8(a), Buyer and its authorized agents,
officers and representatives, upon prior written request, shall have access to
the appropriate records of Sellers to conduct such examination and investigation
as Buyer deems necessary to assure compliance with this Article 2, and to permit
Buyer to comply with its tax reporting compliance requirements, provided that
such examination and investigation shall be at Buyer's sole cost and expense and
shall be during Sellers' normal business hours, shall not unreasonably interfere
with Sellers' operations and activities.
2.9 Accounts Receivable. From and after the Adjustment Time until the one
hundred and twentieth (120th) day following the Adjustment Time (the "Collection
Period"), Buyer agrees to use reasonable efforts to collect, as agent for
Sellers, the Accounts Receivable of the Sellers as of the Adjustment Time (the
"Pre-TBA Receivables") in the manner regularly pursued by Buyer with respect to
the collection of its accounts receivable and in the ordinary course of
business. Buyer shall hold the proceeds collected from Pre-TBA Receivables
(which may be commingled with other funds of Buyer and/or used by Buyer for its
own purposes) pending remittance to Sellers as provided in this Section 2.9.
Within ten (10) days following the end of the Collection Period, Buyer shall pay
to the Sellers in immediately available funds all proceeds of Pre-TBA
Receivables actually collected by Buyer during the Collection Period, minus the
amount of all the Accounts Payable of the Sellers as of the Adjustment Time (the
"Pre-TBA Payables") actually paid by Buyer, assumed by Buyer, or reimbursed by
Buyer to Sellers under the TBA Agreement (provided that in the event the amount
of such Accounts Payable exceeds the proceeds of Pre-TBA Receivables actually
collected by Buyer, then the Sellers shall pay such difference to Buyer in the
same manner). On the tenth (10th) day following the end of the Collection
Period, Buyer will deliver to Sellers all records of uncollected Pre-TBA
Receivables (provided that Buyer may retain copies of such records). In the
collection of accounts receivable, all payments received by Buyer from account
debtors will be applied first to the Pre-TBA Receivables and then to Buyer's
accounts receivable, in the order of origination (i.e., "first-in, first-out"),
unless the account debtor specifies otherwise, in which case the proceeds shall
be applied as specifically designated by the account debtor. Buyer will take no
action to encourage an account debtor to dispute its obligation to pay any
billing that relates to a Pre-TBA Receivable or to specify that any payment be
applied to ▇▇▇▇▇▇▇▇ other than in chronological order. Buyer or Sellers will
promptly deliver to the other a true copy of any notice of a dispute as to the
validity or enforceability of a Pre-TBA Receivable received from an account
debtor. Buyer shall not agree to any settlement, discount or reduction of any
Pre-TBA Receivable without the prior written consent of Sellers. Buyer's
collection obligation under this Section 2.9 shall not include any obligation to
bring suit, engage a collection agent or take any legal action for the
collection of any Pre-TBA Receivable. After the Collection Period, Buyer shall,
if requested by Sellers, execute and deliver letters, in form and substance
reasonably satisfactory to Sellers and Buyer, to the effect that the respective
account debtor should send payments on the Pre-TBA Receivables to Sellers'
designee. In the event this Agreement is terminated prior to the end of the
Collection Period (or prior to the making of the payment described above) for
any reason, promptly but in any event within ten (10) days thereafter, Buyer
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shall deliver to Seller, in immediately available funds, an amount equal to (i)
the proceeds of all Pre-TBA Receivables collected by Buyer from and after the
Adjustment Time less (ii) all Pre-TBA Payables actually paid by Buyer or
reimbursed by Buyer to Sellers under the TBA Agreement (provided that in the
event the amount of such Accounts Payable exceeds the proceeds of Pre-TBA
Receivables actually collected by Buyer, then the Sellers shall pay such
difference to Buyer in the same manner). Notwithstanding anything to the
contrary herein, this Section 2.9 shall survive the termination of this
Agreement.
ARTICLE III
GOVERNMENTAL APPROVALS AND CONTROL OF STATION
3.1 FCC Consent. It is specifically understood and agreed by Buyer and
Sellers that the Closing shall be in all respects subject to, and conditioned
upon, the receipt of prior FCC Consent in respect of the Station's main
television broadcast license (KODE-TV). Buyer and Sellers shall prepare and file
with the FCC as soon as practicable but in no event later than five (5) business
days after the execution of this Agreement, all requisite applications and other
necessary instruments and documents to request the FCC Consent and any necessary
extensions thereof to comply with the Closing Date. After the aforesaid
applications, instruments and documents have been filed with the FCC, Buyer and
Sellers shall prosecute such applications with all reasonable diligence and take
all steps reasonably necessary to obtain the requisite FCC Consent including,
without limitation, vigorously contesting any petitions or protests against such
applications. Buyer shall promptly provide Sellers, and Sellers shall promptly
provide the Buyer, with any pleading, order or other document served on such
party relating to such FCC applications and all proceedings relating thereto. No
party hereto shall take any action that such party knows or should know would
adversely affect obtaining the FCC Consent, or adversely affect the FCC Consent
becoming a Final Order. Buyer shall pay all FCC filing or transfer fees relating
to the transactions contemplated hereby irrespective of whether the transactions
contemplated by this Agreement are consummated and irrespective of whether such
fees are assessed before or after the Closing.
3.2 Control Prior to Closing. 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 operation of the Station. Such
operation, including ultimate control and supervision of all programs, employees
and policies, shall be the sole responsibility of Sellers hereunder and under
the TBA Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLERS
Subject to the last paragraph of Section 6.2, Sellers represents and
warrants to Buyer that the statements contained in this Article IV are true,
correct and complete as of the date of this Agreement, as follows:
4.1 Organization. Each Seller is a limited liability company organized,
validly existing and in good standing under the law of the State of Delaware and
each is qualified to do business as a foreign limited liability company in the
State of Missouri. Each Seller has the
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power and authority to own, lease, and operate its properties and to conduct its
business as it is now being conducted.
4.2 Authorization; Enforceability. The execution, delivery and performance
of this Agreement and the TBA Agreement and all of the documents and instruments
required hereby by Sellers are within the power of each Seller and have been
duly authorized by all necessary action by Sellers. This Agreement and the TBA
Agreement are, and the other documents and instruments required hereby will be,
when executed and delivered by Sellers, the valid and binding obligations of
Sellers, enforceable against Sellers in accordance with their respective terms,
subject only to bankruptcy, insolvency, reorganization, moratorium or similar
laws at the time in effect affecting the enforceability or rights of creditors
generally and by general equitable principles which may limit the right to
obtain equitable remedies.
4.3 Absence of Conflicting Agreements. Except for the FCC Consent or as
described on Schedule 4.3, neither the execution, delivery or performance of
this Agreement or the TBA Agreement in accordance with their respective terms by
Sellers nor the consummation of the sale and purchase of the Purchased Assets or
any other transaction contemplated by this Agreement (including, without
limitation, the commencement or continuation of operations under the TBA
Agreement), does or will, with or without the giving of notice, or the lapse of
time or both, or otherwise:
(a) conflict with, result in a breach of, or constitute a default
under, the organizational documents of either Seller, or any federal, state or
local law, statute, ordinance, rule or regulation applicable to Sellers, or any
court of administrative order or process applicable to Sellers, or any material
contract, agreement, arrangement, commitment or plan to which either Seller is a
party or by which either Seller is bound and which relates to, the ownership or
operation of the Station or the Purchased Assets;
(b) result in the creation of any Lien upon any of the Purchased
Assets, except for Permitted Liens;
(c) terminate, amend or modify, or give any other Person the right
to terminate, amend, modify, abandon or refuse to perform any material contract,
agreement, arrangement, commitment or plan to which either Seller is a party and
which relates to, the ownership or operation of the Station or the Purchased
Assets;
(d) accelerate or modify, or give any party the right to accelerate
or modify, the time within which, or the terms under which, any duties or
obligations are to be performed, or any rights or benefits are to be received,
under any material contract, agreement, arrangement, commitment or plan to which
either Seller is a party and which relates to the ownership or operation of the
Station or the Purchased Assets;
(e) require the consent, waiver, approval, permit, license,
clearance or authorization of, or any declaration or filing with, any court or
governmental or public agency or other authority other than the FCC; or
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(f) require the consent of any Person under any material agreement,
arrangement or commitment of any nature to which either Seller is party, by
which either Seller is bound, or by which the Purchased Assets are bound or
subject.
4.4 Purchased Assets. The Purchased Assets include all of the assets,
properties and rights of every type and description, real, personal and mixed,
tangible and intangible, that are necessary for the business of owning and
operating the Station as currently conducted by Sellers, with the exception of
the Retained Assets. All inventories of supplies, tubes and spare parts
necessary or appropriate for the operation of the Station are at levels at least
equal to the Station's usual and customary levels.
4.5 Title to Purchased Assets; Liens and Encumbrances. Except as set forth
on Schedule 4.5, Sellers own good and marketable title to or have valid
leasehold interests in all of the Purchased Assets (other than the Real Property
as to which the provisions of Section 4.9 shall apply and the Intangible
Property as to which the provisions of Section 4.8 shall apply) free and clear
of any and all Liens except for Permitted Liens.
4.6 Equipment. Each of the material items of (i) the Equipment and (ii)
the Station's physical facilities, electrical and mechanical systems and the
transmitting and studio equipment is in good condition and repair, ordinary wear
and tear excepted, and is not in need of imminent repair or replacement, is
operating and has been serviced and maintained by Sellers in accordance with
normal industry standards and practices and FCC rules and regulations.
4.7 The Contracts. Except as set forth on Schedule 4.7:
(a) Schedule 1.2 lists all agreements relating to properties,
undertakings or commitments to or for third parties in the operation and conduct
of the Station except for (i) agreements (other than Tradeout Agreements) for
the sale of time on the Station that involve the purchase of less than
Twenty-Five Thousand Dollars ($25,000.00) in advertising time and require
performance over a period of less than thirty (30) days, (ii) other agreements
which are cancelable by Sellers or its assignee without breach or penalty on not
more than thirty (30) days notice and which involve average annual payments or
receipts by the Station of less than Ten Thousand Dollars ($10,000.00) in the
case of any single contract and Twenty-Five Thousand Dollars ($25,000.00) in the
aggregate, (iii) Sellers' (and their affiliates') senior loan agreement with
FINOVA Capital Corporation and all related agreements, documents and
instruments, and (iv) Sellers' and their affiliates' limited liability company
agreements;
(b) Sellers have performed, or are in compliance with, each material
term, covenant and condition of each of the Contracts required to be listed on
Schedule 1.2, and no material event of default on the part of Sellers, and to
the Knowledge of Sellers, any other party thereto, exists under any of the
Contracts required to be listed on Schedule 1.2;
(c) each of the Contracts listed on Schedule 1.2 is in full force
and effect, unimpaired by any acts or omissions of Sellers, and constitutes the
legal and binding obligation of, and is enforceable against Sellers, and to the
Knowledge of Sellers, against each other party thereto in accordance with its
terms, subject only to bankruptcy, insolvency, reorganization, moratorium or
similar laws at the time in effect affecting the enforceability or rights of
creditors
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generally and by general equitable principles which may limit the right to
obtain equitable remedies;
(d) Sellers have furnished or made available to Buyer true and
complete copies of all written Contracts required to be listed on Schedule 1.2,
including all amendments, modifications and supplements thereto, and Schedule
1.2 contains summaries of the following provisions of all oral Contracts which
involve Ten Thousand Dollars ($10,000.00) in the case of any single oral
Contract and Twenty-Five Thousand Dollars ($25,000.00) in the aggregate: the
parties thereto, and the value of the goods and services to be provided
thereunder;
(e) Schedule 1.2 sets forth an accurate and complete list of all
Tradeout Agreements, and sets forth for each Tradeout Agreement the parties
thereto, the value of broadcast time required to be provided on the Station from
and after the date shown on such Schedule and the value of goods and services to
be provided to the Station from and after such date; and
(f) With respect to each Program Contract, the "Available Runs"
specified on the attached Schedule 1.2-A reflects the number of unused
exhibitions pursuant to the cash portion, if any, of such Program Contract as of
the corresponding date specified on such Schedule.
4.8 Intangible Property. Except as set forth on Schedule 4.8:
(a) there are no claims, demands or proceedings instituted, pending
or, to the Knowledge of Sellers, threatened by any Person pertaining to or
challenging Sellers' right to use any of the Intangible Property;
(b) to the Knowledge of Sellers, Sellers are not infringing upon or
otherwise acting adversely to any trademark, trade name, patent or copyright
owned by a third party;
(c) there are no royalty agreements between Sellers and any third
party relating to any of the Intangible Property;
(d) the Intangible Property constitutes all of the intangible and
intellectual property interests and other intellectual property necessary or
appropriate for or used in the operation of the Station (other than Copyrights
and Trademarks with respect to Program Rights); and
(e) all Copyrights and Trademarks are listed on Schedule 1.3 and
Schedule 1.11, respectively, and all Intangible Property is transferable to
Buyer by the sole act of Sellers.
4.9 Real Property. Except as disclosed on Schedule 4.9:
(a) Sellers have good, marketable and insurable fee simple or
leasehold interests, as applicable, in the Real Property, and such Real Property
includes all real property necessary for the business of the Station as
currently conducted or used in the operation of the Station. Attached to
Schedule 4.9 are all policies of title insurance currently existing in favor of
Sellers with respect to the Real Property. Except for Permitted Liens and the
items set forth on
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Schedule 4.9, there are no Liens to title to any portion of the Real Property.
No Lien set forth or required to be set forth on Schedule 4.9 (not including
those described in items 1 through 8 and item 20 on Schedule 4.9) materially
interferes with the operation of the Station as currently operated;
(b) Sellers have not received notice of any pending condemnation or
similar proceeding affecting the Real Property or any portion thereof, and to
the Knowledge of Sellers, no such action is presently contemplated or
threatened;
(c) Sellers have not received any written notice from any insurance
company of any defects or inadequacies in the Real Property or any part thereof,
which would materially adversely affect the insurability of the Real Property or
the premiums for the insurance thereof. Sellers have not received any notice
from any insurance company which has issued or refused to issue a policy with
respect to any portion of the Real Property or by any board of fire underwriters
(or other body exercising similar functions) requiring the performance of any
repairs, alterations or other work with which compliance has not been made;
(d) there are no parties in possession of any portion of the Real
Property other than Sellers, whether as lessees, tenants at will, trespassers or
otherwise;
(e) there is no law, ordinance, order, regulation or requirement now
in existence, (other than Environmental Laws) which would require any material
expenditure to remediate, remedy, remove, modify or improve any of the Real
Property in order to bring it into substantial compliance therewith;
(f) the Real Property has adequate direct access to and from
completed, dedicated and accepted public roads, and there is no pending or, to
the Knowledge of Sellers, threatened governmental proceeding which would impair
or curtail such access; and
(g) to the Knowledge of Sellers, there are no material structural,
electrical, mechanical, plumbing, air conditioning, heating or other defects in
the buildings or towers located on the Real Property and the roofs of the
buildings located on the Real Property are free from leaks and in good
condition, ordinary wear and tear excepted.
4.10 The Leases. Except as set forth on Schedule 4.10:
(a) the Leases described on Schedule 1.5 constitute all of the lease
agreements between Sellers and third parties relating to the operation of the
Station or the Purchased Assets;
(b) Sellers have performed each material term, covenant and
condition of each of the Leases which is required to be performed by Sellers at
or before the date hereof, and no material default or event which with the
passing of time or giving of notice or both would constitute a default on the
part of the Sellers and, to the Knowledge of Sellers, on the part of any other
party thereto, exists under any Lease;
(c) each of the Leases is in full force and effect, unimpaired by
any acts or omissions of Seller, and constitutes the legal and binding
obligation of, and is legally enforceable
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against Sellers, and to the Knowledge of Sellers, against each other party
thereto in accordance with its terms;
(d) Sellers have furnished or made available to Buyer true and
complete copies of the Leases, including any and all amendments thereto;
(e) there are no leasing commissions or similar payments due,
arising out of, resulting from or with respect to any Lease which are owned by
Sellers; and
(f) each of Sellers' Financing Leases is listed as such on Schedule
4.10.
4.11 Financial Statements and Interim Financial Statements.
(a) Attached as Schedule 4.11(a) are true and complete copies of the
unaudited consolidated balance sheets of Sellers, as of December 31, 1999 and
December 31, 2000 and the related consolidated statements of income for the
fiscal years then ended. The Financial Statements are in accordance with the
books and records of Sellers, have been prepared in accordance with generally
accepted accounting principles applied on a basis consistent with preceding
years and present fairly in all material respects the financial condition of the
Sellers as of the date indicated and the results of their operations and changes
in cash flows for the period then ended, provided that the Financial Statements
do not contain footnotes and lack other presentation items.
(b) Attached as Schedule 4.11(b) are true and complete copies of the
unaudited consolidated balance sheet of Sellers as of November 30, 2001, and the
related consolidated statement of income for the month and eleven (11) month
period then ended. The Interim Financial Statements are in accordance with the
books and records of Sellers, have been prepared in accordance with generally
accepted accounting principles applied on a basis consistent with the Financial
Statements and present fairly in all material respects the financial condition
of Sellers as of the date indicated and the results of their operations and
changes in financial position for the period then ended; subject, however, to
year-end adjustments which, in the aggregate, will not be materially adverse and
provided that the Interim Financial Statements do not contain footnotes and lack
other presentation items.
4.12 No Changes. Except as set forth on Schedule 4.12 or as otherwise
contemplated by this Agreement, since November 30, 2001 through the Adjustment
Time, there has not been any:
(a) amendment or termination of any Contract, Lease or License to
which Sellers are a party with respect to the Station except in the ordinary
course of business;
(b) increase in compensation paid, payable or to become payable by
Sellers to any of its employees at the Station, except in the ordinary course of
business;
(c) extraordinary losses (whether or not covered by insurance) or
waiver by Sellers of any extraordinary rights of value;
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(d) commitment to or liability to any labor organization which
represents, or proposes to represent, employees of the Station;
(e) notice from any of the Station's sponsors or any customers
(determined on the basis of the Station's revenues for the trailing twelve (12)
month period) as to any of such sponsor's or customer's intention not to conduct
business with the Station, the result of which loss or losses of business,
individually or in the aggregate, has had, or could reasonably be expected to
have, a Material Adverse Effect; (f) sale, assignment, lease or other transfer
or disposition of any of the Purchased Assets or properties of the Station
except in the ordinary course of business or in connection with the acquisition
of similar property or assets in the ordinary course of business;
(f) sale, assignment, lease or other transfer or disposition of any
of the Purchased Assets or properties of the Station except in the ordinary
course of business or in connection with the acquisition of similar property or
assets in the ordinary course of business;
(g) adverse change in cable carriage or channel position on which
the Station is carried (on any cable system with more than 1,000 subscribers);
(h) period of four consecutive days or more during which the Station
was off the air for any reason or a period of fifteen (15) days or more during
which the Station operated at substantially reduced power;
(i) termination of the Affiliation Agreement or loss by the Station
of the ABC network affiliation; or
(j) change in the financial condition, business, assets or results
of operation of the Station which has had a Material Adverse Effect.
4.13 No Litigation; Labor Disputes; Compliance with Laws. Except as set
forth on Schedule 4.13:
(a) except for FCC rulemaking procedures generally affecting the
television broadcasting industry, there is no decree, judgment, order,
litigation at law or in equity, arbitration proceeding or other proceeding
before or by any commission, agency or other administrative or regulatory body
or authority pending or, to the Knowledge of Sellers, threatened, to which
Sellers are a party or otherwise relating to the Station or the Purchased Assets
which could reasonably be expected to have a Material Adverse Effect;
(b) to the Knowledge of Sellers, there is no material investigation
by any commission, agency or other administrative or regulatory body or
authority pending or threatened, which is specifically concerned with the
operations, business or affairs of Sellers, the Station or the Purchased Assets;
(c) (i) the Station is not subject to or bound by any labor
agreement, and there is no and there has not been any labor strike or request
for union representation pending, or to the Knowledge of Sellers, threatened
against Sellers relating to or affecting the business or operations of the
Station and, (ii) there is no and there has not been any labor dispute,
grievance or controversy, pending, or to the Knowledge of Sellers, threatened
against Sellers relating to or affecting the business or operations of the
Station which could reasonably be expected to have Material Adverse Effect; and
-21-
(d) Sellers have carried on and conducted the business and affairs
of the Station in compliance with all applicable federal, foreign, state and
local laws, statutes, ordinances, rules and regulations, and all applicable
court or administrative orders or processes, including but not limited to FCC,
Occupational Safety and Health Administration, Equal Employment Opportunity
Commission ("EEOC"), National Labor Relations Board and Environmental Protection
Agency a violation of which has had or may reasonably be expected to have a
Material Adverse Effect. The Station complies in all material respects with all
applicable statutes, rules and regulations pertaining to equal employment
opportunity.
4.14 Taxes. Except as disclosed on Schedule 4.14:
(a) Sellers have duly filed all required federal, state and local
tax returns, reports and estimates for all years and periods (and portions
thereof) for which any such returns, reports and estimates were due by Sellers
(taking into account any permitted extensions), and any and all amounts shown on
such returns and reports to be due and payable have been paid in full except as
may be contested in good faith. All of such returns, reports and estimates are
true and complete in all material respects. Sellers have withheld all taxes
required to be withheld under applicable law and regulations, and such
withholdings have either been paid to the proper governmental agency or set
aside in accounts for such purpose, or accrued, reserved against and entered
upon the books of Sellers, as the case may be; and
(b) There are, and after the date of this Agreement will be, no tax
deficiencies (including penalties and interest) of any kind assessed against or
relating to Sellers or the Purchased Assets with respect to any taxable periods
ending on or before, or including, the Closing Date of a character or nature
that would result in Liens or claims on any of the Purchased Assets or on
Buyer's title or use of the Purchased Assets or that would result in any claim
against Buyer or the Purchased Assets; provided, however, that Sellers shall not
be deemed to make any representations or warranty with respect to any Liens or
claims arising by reason of, or attributable to, Buyer's use or operation of the
Station or the Purchased Assets on or after the Adjustment Time.
4.15 Governmental Authorizations. Sellers hold, and, on the Closing Date
Sellers will hold, all regular and valid licenses, permits and authorizations
issued by the FCC to operate the Station as a television broadcast station with
the power with respect to the Station's main broadcast license disclosed on
Schedule 1.6. Such licenses, permits and authorizations constitute all of the
licenses, permits and authorizations that are necessary under the Communications
Act for the operation of the Station. The Licenses are in full force and effect.
Except as set forth on Schedule 4.15, no qualifications, registrations, filings,
privileges, franchises, licenses, permits, approvals or authorizations other
than the Licenses and those as set forth on Schedule 4.15 are required for
Sellers to own and operate the Station in the manner operated on the date
hereof. As of the date hereof, (i) no action or proceeding is pending or, to the
Knowledge of Sellers, threatened before the FCC or any other governmental
authority to revoke, refuse to renew or materially and adversely modify the
Licenses (except for FCC rulemaking procedures generally affecting the
television broadcasting industry), and (ii) there is no pending, issued or
outstanding or, to the Knowledge of Sellers, threatened by or before the FCC any
investigation, order to show cause, cease and desist order, notice of violation,
notice of apparent liability, notice or forfeiture, petition or complaint with
respect to the Station or any of the Licenses.
-22-
4.16 Compliance with FCC Requirements. Except as set forth on set forth on
Schedule 4.16, the Station, its physical facilities, electrical and mechanical
systems and transmitting and studio equipment are being and have been operated
in all material respects in accordance with the specifications of the applicable
Licenses, and the Station is in compliance in all material respects with the
Communications Act. Except as set forth on Schedule 4.16, Sellers have complied
in all material respects with the Communications Act concerning limits on the
duration of advertising in children's programming, and the record keeping
obligations related thereto. Except as set forth on Schedule 4.16, all
obligations, reports and other filings required by the FCC with respect to the
Station, including, without limitation, material required to be placed in the
Station's public inspection file, have been properly and timely filed. Except as
set forth on Schedule 4.16, no cable television system has notified Sellers of
any signal quality deficiency or copyright indemnity or other prerequisite to
cable carriage of the Station's signal, and no cable television system has
notified Sellers that it has declined or threatened to decline such carriage or
failed to respond to a request for carriage or sought any form of relief from
carriage from the FCC. To the Knowledge of Sellers, the Station's main
transmitting tower (which is designated Tower #19 and owned by SpectraSite)
located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (i) has the structural
capacity to hold, or (ii) is otherwise suitable for, additional DTV antennae and
other equipment necessary for satisfying the FCC's minimum DTV operating
requirements for the Station.
4.17 Insurance. Schedule 4.17 is a correct list of all liability and
casualty insurance and errors and omissions insurance policies insuring the
business, properties and assets of the Station. Sellers are not in default with
respect to such insurance policies, nor has either of the Sellers failed to give
any notice or present any claim under any policies in a due and timely fashion.
4.18 Brokers. Neither this Agreement nor the sale and purchase of the
Purchased Assets or any other transaction contemplated by this Agreement was
induced or procured through any Person acting on behalf of or representing
Sellers as broker, finder, investment banker, financial advisor or in any
similar capacity.
4.19 Employees. Schedule 4.19 is a true and complete list of all of
Sellers' employees as of the date of this Agreement, which list identifies the
name of such employees, and the following compensation information with respect
to each of them: (i) current annual base salary; (ii) accrued vacation and sick
leave time and; (iii) the dates and amounts of the last increase in
compensation. Except as set forth on Schedule 4.19 hereto, or as otherwise
provided by applicable state law, the employment of all employees of the Station
is terminable at will by such employer without any penalty or severance
obligations incurred by such employer. Except as set forth in Schedule 4.19,
neither Seller is bound by any collective bargaining agreement, and to the
Knowledge of Sellers, there exists no organizational effort presently being made
or, threatened by or on behalf of any labor union with respect to employees of
the Station.
4.20 Financial Benefit Plans. Except as set forth in Schedule 4.20,
neither Seller has at any time maintained or been a party to or made
contributions to any of the following: (i) any "employee pension benefit plan,"
as such term is defined in Section 3(2) of ERISA; or (ii) any "employee welfare
benefit plan," as such term is defined in Section 3(1) of ERISA, whether written
or oral. Except as set forth in Schedule 4.20, all employee benefit plans
maintained by
-23-
Sellers or to which Sellers are obligated to contribute ("Employee Benefit
Plans") are, and have in the past been, in all material respects maintained,
funded and administered in compliance with ERISA, the Code, and other applicable
law. As to each Employee Benefit Plan for which an annual report, including
schedules, or comparable report is required to be filed under ERISA or the Code,
no liabilities, with respect to such plan, existed on the dates of such annual
report except as disclosed therein and, except as disclosed in Schedule 4.20, no
material adverse change has occurred with respect to the financial data covered
by such annual report since the date thereof. Except as disclosed in Schedule
4.20, the execution of this Agreement and performance of the transactions
contemplated hereby will not in and of itself constitute a triggering event
under any Employee Benefit Plan that will result in any payment (whether of
severance pay or otherwise) becoming due from either Seller. Each Employee
Benefit Plan that is an employee pension benefit plan, if any, has received a
determination letter stating that it is tax-qualified under Section 401(a) of
the Code, and no event has occurred that could result in a disqualification of
such plan. Neither Seller has ever maintained a pension plan subject to Section
412 of the Code or Title IV of ERISA, and no such Person has ever maintained,
contributed to or been required to contribute to any employee benefit plan that
is a "multiemployer plan" (as defined in Section 3(37)(A) or (D) of ERISA) as
amended by the Multiemployer Pension Plan Amendments Acts of 1980. Neither
Seller nor any plan fiduciary has engaged in any "prohibited transaction," as
defined in Section 406 of ERISA, the Code, or in Section 4975 of the Code with
respect to any Employee Benefit Plan. No complete or partial termination has
occurred within the five (5) years preceding the date hereof with respect to any
Employee Benefit Plan.
4.21 Environmental Compliance. Except as set forth in Schedule 4.21
(including the reports attached thereto):
(a) Sellers have complied in all material respects and are in
material compliance with all Environmental Laws;
(b) Sellers are not a party to any litigation or administrative
proceeding and, to the Knowledge of Sellers, nor is any litigation or
administrative proceeding threatened against them, which in either case (i)
asserts or alleges that Sellers violated any Environmental Laws, (ii) asserts or
alleges that Sellers are required to clean up, remove or take remedial or other
response action due to the disposal, depositing, discharge, leaking or other
release of any Hazardous Materials at the Real Property, or (iii) asserts or
alleges that Sellers are required to pay all or a portion of the cost of any
past, present or future cleanup, removal or remedial or other response action
which arises out of or is related to the disposal, depositing, discharge,
leaking or other release of any Hazardous Materials by Sellers at any of the
Real Property;
(c) with respect to the period during which Sellers owned or
occupied the Real Property, and, to the Knowledge of Sellers with respect to the
time before Sellers owned or occupied the Real Property, no person has caused or
permitted Hazardous Materials to be stored, deposited, treated, recycled or
disposed of on, under or at any Real Property owned, leased, used or occupied by
Sellers which would subject Sellers to liability for the cleanup, removal or
some other remedial action under Environmental Laws;
-24-
(d) there are not now, nor, to the Knowledge of Sellers, have there
previously been, tanks or other facilities on, under, or at the Real Property
which contained any Hazardous Materials which, if known to be present in soils
or ground water, would subject any owner or operator of such Real Property to
liability for cleanup, removal or some other remedial action under Environmental
Laws;
(e) to the Knowledge of Sellers, there are not conditions existing
currently which would subject any owner or operator to the Real Property to
damages, penalties, injunctive relief or cleanup costs under any Environmental
Laws or which require or are likely to require cleanup, removal, remedial action
or other response pursuant to Environmental Laws;
(f) Sellers are not subject, as a result of its interest in the Real
Property, to any judgment, order or citation related to or arising out of any
Environmental Laws and has not been named or listed as a potentially responsible
party by any governmental body or agency in a matter related to or arising out
of any Environmental Laws; and
(g) the operation of the Station does not exceed the permissible
levels of exposure to RF radiation specified in either the FCC's current rules,
regulations and policies concerning RF radiation.
4.22 Affiliation Agreement. As of the date of this Agreement, subject to
the disclosures with respect to the Affiliation Agreement on Schedule 1.2, (i)
the Affiliation Agreement is in full force and effect and (ii) ABC has not given
Sellers written or verbal notice of any type of ABC's intention to terminate or
fail to renew the Affiliation Agreement or that ABC is considering such possible
termination or failure to renew the Affiliation Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers that the statements contained in
this Article V are true, correct and complete as of the date of this Agreement,
as follows:
5.1 Organization. Buyer is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and on the
Closing Date Buyer shall be duly qualified to do business as a foreign entity in
Missouri, and Buyer has full power to purchase the Purchased Assets pursuant to
this Agreement.
5.2 Authorization; Enforceability. The execution, delivery and performance
of this Agreement and the TBA Agreement and all of the documents and instruments
required hereby by Buyer are within the power of Buyer and have been duly
authorized by all necessary action by Buyer. This Agreement and the TBA
Agreement are, and the other documents and instruments required hereby will be,
when executed and delivered by Buyer, the valid and binding obligations of Buyer
enforceable against Buyer in accordance with their respective terms, subject
only to bankruptcy, insolvency, reorganization, moratorium or similar laws at
the time in effect affecting the enforceability or right of creditors generally
and by general equitable principles which may limit the right to obtain
equitable remedies.
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5.3 Absence of Conflicting Laws and Agreements. Except as set forth on
Schedule 5.3, neither the execution, delivery or performance of this Agreement
or the TBA Agreement by Buyer nor the consummation of the sale and purchase of
the Purchased Assets or any other transaction contemplated by this Agreement or
the TBA Agreement does or will, with or without the giving of notice, or the
lapse of time, or otherwise:
(a) conflict with, result in a breach of, or constitute a default
under, the certificate of incorporation or bylaws of Buyer, or any federal,
state or local law, statute, ordinance, rule or regulation, or any court or
administrative order or process, or any material contract, agreement,
arrangement, commitment or plan to which Buyer is a party or by which Buyer or
its assets is bound;
(b) require the consent, waiver, approval, permit, license,
clearance or authorization of, or any declaration or filing with, any court or
governmental or public agency other than the FCC Consent; or
(c) require the consent of any Person under any material agreement,
material arrangement or material commitment of any nature to which Buyer is a
party or by which it is bound.
5.4 Brokers. Neither this Agreement nor the sale and purchase of the
Purchased Assets or any other transaction contemplated by this Agreement was
induced or procured through any Person acting on behalf of or representing Buyer
as broker, finder, investment banker, financial advisor or in any similar
capacity.
5.5 FCC Qualification. Except for proceedings of general applicability to
the television industry, Buyer knows of no facts that would, under the
Communications Act or the present or pending rules, regulations, published
policies and published practices of the United States Federal Trade Commission
or the United States Department of Justice, disqualify Buyer as an assignee of
the Licenses or as an owner or operator of the Station. Buyer is now and as of
the Closing Date will be legally and financially qualified under the
Communications Act to become the assignee of the Licenses.
5.6 Financing. The Buyer has and at the Closing will have adequate funds
or financing to consummate the transactions contemplated by this Agreement.
5.7 Due Diligence.
(a) Buyer has conducted its own independent investigation of the
Sellers and their business, has been provided the opportunity to obtain
information and documents concerning the Sellers and has had the opportunity to
ask questions of, and receive answers from, the officers of the Sellers
pertaining to the Sellers and the Station.
(b) With respect to the Affiliation Agreement, Buyer acknowledges
and agrees that (i) the current term thereof expires on August 7, 2002, and (ii)
it shall not be a condition to Buyer consummating the Closing that ABC's consent
to the assignment of the Affiliation Agreement shall have been obtained or that
the Affiliation Agreement shall not have been terminated by ABC.
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5.8 Absence of Litigation. There is no decree, judgment, order, litigation
at law or in equity, arbitration proceeding or proceeding before or by any
commission, agency or other administrative or regulatory body or authority
pending or, to the knowledge of Buyer, threatened to which Buyer is a party and
which could materially and adversely affect Buyer's ability to purchase the
Purchased Assets under this Agreement or to perform its obligations under the
TBA Agreement.
ARTICLE VI
CERTAIN MATTERS PENDING THE CLOSING
From and after the date of this Agreement and until the Closing (unless
otherwise provided herein):
6.1 Notice of Adverse Changes. Pending the Closing, Sellers shall give
Buyer prompt written notice of the occurrence of any of the following as they
gain Knowledge thereof:
(a) the commencement of any proceeding or litigation at law or in
equity or before the FCC or any other commission, agency or administrative or
regulatory body or authority which involves any of the Licenses or which could
reasonably be expected to have a Material Adverse Effect, other than proceedings
or litigation of general applicability to the television broadcasting industry;
or
(b) any material violation by Sellers, or written notice of any
alleged material violation by Sellers, of any federal, state or local law,
statute, ordinance, rule or regulation.
6.2 Operations Pending Closing. Subject to the provisions of Section 3.2
regarding control of the Station, after the date hereof and prior to the Closing
and subject to the TBA Agreement, Sellers shall:
(a) operate the Station in all material respects in accordance with
applicable FCC requirements, rules and regulations and make all filings
necessary to make the representation in Section 4.15 true and correct at
Closing;
(b) not sell, lease, mortgage, pledge or otherwise dispose of any of
the Purchased Assets except for transactions in the ordinary and regular course
of the operation of the Station where the proceeds of such disposition are used
to replace such Purchased Assets;
(c) except with Buyer's prior written consent, not enter into, or
become obligated under, amend or otherwise modify any agreement or commitment on
behalf of the Station;
(d) maintain in full force and effect policies of liability and
casualty insurance of substantially the same type, character and coverage as the
policies currently carried with respect to the business, operations and assets
of the Station;
(e) not enter into any Tradeout Agreements relating to the Station,
and shall take all commercially reasonable action to protect the present service
areas of the Station from increased electrical interference from other stations,
existing or proposed, and take all
-27-
commercially reasonable action to maintain carriage, if any, of the Station's
signals on all cable television systems or satellite systems; and
(f) except as required by law, not enter into any collective
bargaining agreement or modify the employment terms applicable to any employee
of the Station.
Notwithstanding any provision of this Agreement or the TBA Agreement to
the contrary, none of the following shall be deemed (i) a breach of Sellers'
agreements or covenants under this Section 6.2 or under the TBA Agreement or of
the representations and warranties contained in Article IV hereof, or (ii) a
failure of any of the conditions set forth in Article VII to be satisfied: any
fact or circumstance that occurs as a result of either any action or omission to
act of the Buyer pursuant to the TBA Agreement or any other agreement or
arrangement, or by virtue of Buyer's activities or operations with respect to
the Station.
6.3 Reports. Within thirty (30) days after the end of the calendar month
that includes the date hereof, Sellers will furnish Buyer with a copy of
Sellers' monthly financial reports for the Station for December 2001 (including
a balance sheet and operating statement for each such month and the fiscal year
to the end of such months), and Sellers will furnish to Buyer within ten (10)
days after filing all reports filed with the FCC with respect to the Station
after the date hereof.
6.4 Consents. Sellers will use its commercially reasonable efforts to
obtain all consents and approvals required from third Persons, whose consent or
approval is required pursuant to any Contract or Lease prior to the Closing Date
as a result of the purchase and sale of the Purchased Assets as contemplated
herein. Anything to the contrary in this Agreement notwithstanding, Sellers
shall not be required to pay any fees or provide or deliver any other
consideration to any such Person in order to obtain such consent or approval.
6.5 Cooperation; Reasonable Efforts; Release. Buyer and Sellers will
cooperate in all respects in connection with and use commercially reasonable
efforts to: (a) secure any nongovernmental approvals, consents and waivers of
third parties listed in Schedule 4.3; (b) give notices to any governmental
authority, or secure the permission, approval, determination, consent or waiver
of any governmental authority, required by law in connection with the transfer
of the Purchased Assets from Sellers to Buyer; and (c) cause all of the
conditions set forth in Article VII and Article VIII to be satisfied (but not
waived). Without limiting the generality of the foregoing:
(a) Buyer shall, on or prior to the Closing, execute and deliver to
ABC and Sellers, in form and substance reasonably satisfactory to ABC and
Sellers, the acknowledgement and agreement of Buyer that, upon consummation of
the assignment of the Station's license and the Closing, Buyer will assume and
perform the Affiliation Agreement in its entirety without limitation of any
kind; and
(b) Buyer shall, on or prior to the Closing, execute and deliver to
SpectraSite and Sellers, in form and substance satisfactory to SpectraSite and
Sellers, the acknowledgement and agreement of Buyer that, upon consummation of
the Closing, Buyer will assume, be bound by and perform the SpectraSite
Agreements in their entirety without limitation of any kind;
-28-
provided that in no event shall Buyer be required to assume any obligation or
liability which either accrues or arises under the SpectraSite Agreements prior
to the Closing (provided that such language shall not be deemed to impair
Buyer's reimbursement obligations under the TBA Agreement) or which relates to
any property not included in the Purchased Assets; provided further that Buyer
shall not be required to assume the obligations set forth in Section 2.7 of the
Master Site Lease Agreement that is part of the SpectraSite Agreements (unless
Buyer's lenders consent to such assumption, which consent the Buyer shall use
its commercially reasonable efforts to obtain).
Buyer and Sellers shall, and shall cause their affiliates to, use commercially
reasonable efforts to cause Sellers' parent, GOCOM Holdings, LLC (the "Parent"),
Non-License Seller and the Parent's other direct and indirect subsidiaries
(collectively, the "Subsidiaries") to be released and discharged, effective as
of the consummation of the Closing and in form and substance reasonably
satisfactory to Sellers, from all liabilities and obligations under and in
respect of any or all of the SpectraSite Agreements (except to the extent such
liabilities and obligations relate to the period prior to the Closing or relate
to any property not included in the Purchased Assets), including, without
limitation, as set forth in Section 7.14 of the Master Site Lease Agreement that
is part of the SpectraSite Agreements.
6.6 Tax Returns and Payments.
(a) All tax returns, estimates and reports with respect to the
Purchased Assets that are required to be filed by Sellers prior to the Closing
Date or relating to periods prior to the Closing Date will be timely filed when
due with the appropriate governmental agencies or extensions will have been
granted; and
(b) All taxes pertaining to ownership of the Purchased Assets prior
to the Closing Date will be paid by Sellers (or with respect to income and
franchise taxes, the Parent, as the case may be) when due and payable unless
protested in good faith.
6.7 Release of Liens. Except for the Permitted Liens, at or prior to the
Closing, Sellers shall obtain the release of all Liens disclosed in the
Schedules hereto and any other Liens on the Purchased Assets and shall duly file
releases or terminations of all such Liens in each governmental agency or office
in which any such Lien or evidence thereof shall have been previously filed.
6.8 Public Announcement. Sellers shall publish and broadcast a public
notice concerning the filing of the application for assignment of the Licenses
in accordance with the requirements of Section 73.3580 of the FCC's Rules, and
the parties shall file with the FCC copies of this Agreement, the TBA Agreement
and any and all other required documentation in connection with FCC applications
described in Section 3.1. As to any other announcements or press releases, no
party hereto shall, and each party shall direct and use reasonable efforts to
cause its representatives and agents to not, directly or indirectly, issue any
press release or make any public announcement, comment or statement with respect
to (not including to employees of the Station), or otherwise publicly divulge or
disclose the existence of, this Agreement, the TBA
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Agreement or the transactions contemplated hereby or thereby or the terms,
conditions or other aspects of such transactions without prior approval of the
other parties hereto (which shall not be unreasonably withheld), except (i) as
and to the extent that such party shall be obligated by law, rule or regulation,
in which case the other party shall be so advised and the parties shall use
commercially reasonable efforts to cause a mutually agreeable release or
announcement to be issued and (ii) in connection with Sellers receiving the
approval of their senior lender to such transactions.
6.9 Exclusivity. Sellers agree and covenant that until Closing or this
Agreement expires or is terminated, neither Seller nor any of their
representatives, will discuss, negotiate or offer (or solicit offers) regarding
a sale, transfer or other disposition of the Station or the Purchased Assets or
any merger, combination, restructuring, refinancing or similar transaction
involving Sellers (a "Sale") with another Person or provide any information to
any other Person regarding the Station or Sellers in that connection. Sellers
represent that neither Seller is a party to or bound by any agreement with
respect to a Sale except for this Agreement. Sellers will disclose to Buyer the
existence or occurrence of any proposal or contract whether written or oral
which it may receive during the term of this Agreement in respect of any such
competing transaction.
6.10 Real Estate Matters.
(a) Prior to the Closing, Sellers will reasonably cooperate with
Buyer (at no cost to Seller) so that Buyer may obtain, for the benefit of and at
the cost of Buyer, all documents reasonably required (including estoppel
certificates, owner's affidavits, indemnities and GAP undertakings) for a final
commitment for an ALTA Owners Policy of Title Insurance, as the case may be,
Form B-1970 (or if not reasonably attainable, 1992 Form), for each parcel of
Owned Real Property, issued by a title insurer designated by Buyer (the "Title
Insurer"), in such amount as Buyer reasonably determines to be the fair market
value thereof, insuring the Buyer's interest in such parcel, subject only to the
Permitted Liens, and with such other endorsements and other terms and conditions
as Buyer may reasonably request.
(b) At Buyer's request, Sellers will reasonably cooperate with Buyer
(at no cost to Sellers) so that Buyer may procure for the benefit of Buyer, in
preparation for the Closing, current surveys of each parcel of Owned Real
Property disclosing no survey defects or encroachments which materially
interfere with the current business and operation of the Station, prepared by a
licensed surveyor and conforming to 1992 ALTA/ACSM Minimum Detail Requirements
for Urban Land Title Surveys, and such standards as the Title Insurer may
reasonably require as a condition to the removal of any survey exceptions from
the commitment for the title insurance policy described in Section 6.10(a), and
certified to Buyer, Buyer's lenders and the Title Insurer, in a form sufficient
to permit the issuance of the title policies described above in Section 6.10(a).
Buyer shall bear the cost of obtaining the surveys.
6.11 Access and Information. From the date hereof, Buyer and its financing
sources shall be entitled to make or cause to be made such reasonable
investigation of the Purchased Assets as the Buyer and its financing sources
deem necessary or advisable, and the Sellers shall reasonably cooperate with any
such investigation. In furtherance of the foregoing, but not in limitation
thereof, Seller will provide Buyer and its financing sources and their
respective agents
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and representatives, or cause them to be provided, with reasonable access to any
and all of its management personnel, accountants, representatives, premises,
properties, contracts, commitments, book, records and other information of
Sellers upon reasonable notice and during regular business hours and shall
furnish such financial and operating data, projections, forecasts, business
plans, strategic plans and other data related to the Sellers and their
respective businesses as the Buyer, its financing sources and their respective
agents, representatives and advisors shall reasonably request from time to time.
Sellers and their Affiliates agree to use their reasonable efforts to cause
their respective officers, employees, consultants, agents, accountants and
attorneys to reasonably cooperate with the Buyer, its financing sources,
representatives and advisors in connection with such review and the financing of
the transactions contemplated hereby, including the preparation by the Buyer and
its financing sources of any offering memorandum, bank book, registration
statement or related documents or other documents related to such financing;
provided that the Buyer shall be responsible and shall promptly pay for any out
of pocket expenses incurred by the Sellers in such regard.
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER
Each and every obligation of Buyer to be performed on the Closing Date
shall be subject to the satisfaction prior to or at the Closing of the following
express conditions precedent:
7.1 Compliance with Agreement. Subject to the last paragraph of Section
6.2, Sellers shall have performed and complied with Sellers' material
obligations under this Agreement and the TBA Agreement which are to be performed
or complied with by it prior to or at the Closing; provided that the Buyer shall
not be entitled to rely on the failure of any obligation of the Sellers under
this Agreement or the TBA Agreement (not including obligations of the Sellers
under Sections 2.1 and 2.3(a) which are required or permitted to be satisfied at
Closing and other material obligations which the Sellers have complied with up
to the date which is 15 days prior to the Closing Date but which the Sellers do
not comply with thereafter prior to the Closing Date) to have been complied
with, in order to not consummate the transactions contemplated hereby, unless
the Buyer shall have provided the Sellers with written notice at least 15 days
prior to the Closing Date to the effect that the Buyer does not intend to
consummate the transactions contemplated hereby unless such obligation has been
complied with prior to the Closing Date; provided that if the Sellers receive
such a notice and are acting in good faith to satisfy the obligations described
therein and a delay will not materially and adversely affect the Buyer, then the
Closing Date shall be postponed for such a reasonable period of time (in any
event not to exceed 30 days) as is necessary for the Sellers to satisfy such
obligations; provided that notwithstanding anything herein to the contrary,
Buyer shall not be obligated to consummate the transactions contemplated herein
to the extent the Sellers fails to perform or comply with any of their
obligations herein to the extent such failure is a result of either Sellers' bad
faith.
7.2 Representations and Warranties. Subject to the last paragraph of
Section 6.2, the representations and warranties made by Sellers (i) in Sections
4.1, 4.2, 4.3, 4.5, 4.9(a), 4.11, 4.13 (a) and (b), 4.14, 4.15 and 4.18 of this
Agreement shall have been true and correct as of the Adjustment Time and shall
be true and correct as of the Closing Date (provided that for purposes of the
truth of such representations on the Closing Date, Sellers shall be permitted,
subject to the reasonable approval of Buyer, to amend the Schedules with respect
to such Sections to account
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for events occurring following the Adjustment Time), and (ii) in Sections 4.4,
4.6, 4.7, 4.8, 4.9(b)-(g), 4.10, 4.12, 4.13 (c) and (d), 4.16, 4.17, 4.19, 4.20,
4.21 and 4.22 shall have been true and correct as of the Adjustment Time; in
each case under either clause (i) or (ii) above disregarding all materiality
qualifiers set forth therein, except for (A) matters which have not or could not
reasonably be expected to have a Material Adverse Effect (after giving due
regard to any positive events during the applicable period) and (B) changes
permitted or contemplated by this Agreement, or contemplated or effected as a
result of the TBA Agreement or Buyer's operations, activities, acts or omissions
with respect to the Station.
7.3 Deliveries at Closing. Sellers shall have delivered or caused to be
delivered to Buyer the documents, each properly executed and dated as of the
Closing Date as required pursuant to Section 2.3(a).
7.4 Other Documents. Sellers shall have delivered to Buyer such documents
and certificates of officers of Sellers and public officials as shall be
reasonably requested by Buyer's counsel to establish the existence and good
standing of Sellers and the due authorization of this Agreement and the
transactions contemplated hereby by Sellers.
7.5 [Intentionally deleted.]
7.6 Absence of Investigations and Proceedings. Except for governmental
investigations relating to high definition television or the broadcast industry
generally, including proceedings of general applicability under the Cable Act
and as set forth on Schedule 7.6, there shall be no claim, suit, action or other
proceeding pending or threatened before or by any court, governmental agency,
arbitrator or other entity against any of the parties to this Agreement that
makes it reasonably likely to be unlawful to consummate the Closing.
7.7 FCC Consent. The FCC Consent for the Station's main broadcast
television license (KODE-TV) (without any conditions materially adverse to Buyer
other than those generally applicable to assignees of such licenses) shall have
been issued, and shall, at Closing, be a Final Order and in full force and
effect.
7.8 Licenses. License Seller or Non-License Seller shall be the holder of
the Station's main broadcast television license and all other material licenses
lawfully necessary for the operation of the Station and there shall not have
been any modification of any of such Licenses that has had or could reasonably
be expected to have a Material Adverse Effect. Subject to the last paragraph of
Section 6.2, no proceeding shall be pending or, to the Knowledge of Sellers,
threatened in or before the FCC that is reasonably likely to result in the
revocation, cancellation, failure to renew, suspension or modification in a
material and adverse way of any of the Licenses described above.
7.9 Release of Liens. All Liens (other than Permitted Liens) on the
Purchased Assets shall be released as provided in Section 6.7.
If any of the conditions set forth in this Article VII have not been
satisfied prior to or at the Closing, Buyer may (without waiving any other right
or remedy under this Agreement or the TBA Agreement) in its sole discretion
waive any such condition (other than as set forth in
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Section 7.7) and elect to proceed with the consummation of the transactions
contemplated hereby.
ARTICLE VIII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLERS
Each and every obligation of Sellers to be performed on the Closing Date
shall be subject to the satisfaction prior to or at the Closing of the following
express conditions precedent:
8.1 Compliance with Agreement. Buyer shall have performed and complied in
all material respects with all of its obligations under this Agreement and the
TBA Agreement which are to be performed or complied with by it prior to or at
the Closing.
8.2 Representations and Warranties. The representations and warranties
made by Buyer in this Agreement shall be true and correct in all material
respects as of the Closing Date with the same force and effect as though such
representations and warranties had been made on the Closing Date.
8.3 Deliveries at Closing. Buyer shall have delivered, or caused to be
delivered, to Sellers the documents, each properly executed and dated as of the
Closing Date, required pursuant to Section 2.3(b) and paragraphs (i) and (ii) of
Section 6.5. Buyer shall also have made the payments described in Section 2.2.
8.4 Other Documents. Buyer shall have delivered, or caused to be
delivered, to Sellers such documents and certificates of officers of Buyer and
of public officials as shall be reasonably requested by Sellers' counsel to
establish the existence and good standing of Buyer and the due authorization of
this Agreement and the transactions contemplated hereby by Buyer.
8.5 Absence of Investigations and Proceedings. Except for governmental
investigations relating to high definition television or the broadcast industry
generally, including proceedings of general applicability under the Cable Act
and as set forth on Schedule 7.6, no claim, suit, action or other proceeding
shall be pending or threatened before or by any court, governmental agency,
arbitrator or other entity against any of the parties to this Agreement the
effect of which would make it reasonably likely to be unlawful to consummate the
transactions contemplated by this Agreement to be performed prior to or at the
Closing.
8.6 Governmental Consents. The FCC Consent shall have been issued and
shall be in full force and effect. All other material authorizations, consents
or approvals of any and all governmental regulatory authorities necessary in
connection with the consummation of the transactions contemplated by this
Agreement shall have been obtained and be in full force and effect.
8.7 Required Consent and Release. There shall have been secured from
SpectraSite and Worldnow such permissions, approvals, determinations, consents,
waivers and releases as set forth on Schedule 8.7, including, without
limitation, a release of any and all obligations of the Parent, Sellers, and the
Subsidiaries from any and all further obligations and liabilities (except to the
extent such liabilities and obligations relate to the period prior to the
Closing or relate to any property not included in the Purchased Assets) under
the SpectraSite Agreements or the
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Affiliation Agreement with ▇▇▇▇▇▇▇▇ Web Holdings, LLC d/b/a WorldNow described
on Schedule 1.2.
If any of the conditions set forth in this Article VIII have not been
satisfied, Sellers may (without waiving any other right or remedy under this
Agreement or the TBA Agreement) in their sole discretion waive any of such
conditions (other than as set forth in Section 8.6) and elect to proceed with
the consummation of the transactions contemplated hereby.
ARTICLE IX
INDEMNIFICATION
9.1 Survival of Representations and Warranties. All of the representations
and warranties of the parties hereto contained in the Agreement shall survive
the Closing (regardless of any investigation or inquiry of any party and even if
the damaged party knew or had reason to know of any misrepresentation or breach
of warranty at the time of Closing) and continue in full force and effect until
September 30, 2002; provided, however, that (i) the representations and
warranties contained in Section 4.21 (related to Environmental Compliance) shall
survive the Closing and continue in full force and effect until April 30, 2003;
and (ii) the representations and warranties contained in Section 4.14 (related
to Taxes) shall survive the Closing and continue in full force and effect for a
period expiring one (1) year prior to the expiration of the applicable statutes
of limitation. Any claim with respect to the foregoing sentence under Section
9.3 or 9.4 must be asserted in writing with reasonable particularity by the
party making such claim within the applicable survival period.
9.2 Survival of Covenants and Agreements. The respective covenants and
agreements of the parties contained in this Agreement shall survive the Closing.
Any claim as to a breach of a covenant or agreement under Section 9.3 or 9.4
must be asserted in writing with reasonable particularity by the party making
such claim.
9.3 Indemnification by Sellers. Subject to (a) the survival provisions set
forth in Section 9.1 and (b) the other limitations set forth in this Article IX,
Sellers shall jointly and severally indemnify and hold harmless Buyer, its
successors and assigns (collectively, "Buyer Indemnified Parties") from and
against any and all losses, damages, costs, expenses, liabilities, obligations
and claims of any kind (including, without limitation, reasonable attorneys'
fees) ("Losses") which Buyer Indemnified Parties may at any time suffer or
incur, or become subject to, as a result of or in connection with:
(i) subject to the last paragraph of Section 6.2, any breach
of the representations and warranties made by Sellers in or pursuant to
this Agreement, or in any instrument, certificate or affidavit delivered
by Sellers at the Closing in accordance with the provisions of this
Agreement;
(ii) subject to the last paragraph of Section 6.2, any failure
by Sellers to carry out, perform, or otherwise fulfill or comply with any
covenant, agreement, undertaking, or obligation under this Agreement or
the TBA Agreement;
(iii) the Retained Liabilities;
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(iv) without limiting clause (iii) above, any and all losses,
liabilities or damages resulting from the litigation required to be listed
on Schedule 4.13; or
(v) any suit, action or other proceeding brought by any
governmental authority or other Person arising out of, or in any way
related to, any of the matters referred to in Sections 9.3(i), 9.3(ii),
9.3(iii), or 9.3(iv);
provided, however, that if any action, suit, proceeding, claim, liability,
demand or assessment shall be asserted against any Buyer Indemnified Parties in
respect of which such Buyer Indemnified Parties proposes to demand
indemnification, such Buyer Indemnified Parties shall notify the Sellers thereof
within a reasonable period of time after assertion thereof, and such notice
shall include copies of all suit, service and claim documents, all other
relevant documents in the possession of the Buyer Indemnified Parties, and an
explanation of the Buyer Indemnified Parties' contentions and defenses with as
much specificity and particularity as the circumstances permit, provided, that
the failure of the Buyer Indemnified Parties to give such notice shall not
relieve the Sellers of their obligations under this Section 9.3, except to the
extent that the Sellers shall have been prejudiced thereby. Subject to rights of
or duties to any insurer or other third Person having liability therefor, the
Sellers shall have the right within twenty (20) days after receipt of such
notice to assume the control of the defense, compromise or settlement of any
such action, suit, proceeding, claim, liability, demand, or assessment,
including, at its own expense, employment of counsel; provided further, however,
that if the Sellers shall have exercised their right to assume such control, the
Buyer Indemnified Parties may, in its sole discretion and expense, employ
counsel to represent it (in addition to counsel employed by the Sellers) in any
such matter, and in such event counsel selected by the Sellers shall be required
to cooperate with such counsel of the Buyer Indemnified Parties in such defense,
compromise or settlement for the purpose of informing and sharing information
with such Buyer Indemnified Parties. So long as the Sellers are defending in
good faith any such claim or demand asserted by a third Person against the Buyer
Indemnified Parties, the Buyer Indemnified Parties shall not settle or
compromise such claim or demand. If the Sellers have assumed the defense of any
such claim or demand, then they shall have the power and authority to settle or
consent to the entry of judgment without the consent of Buyer if the judgment or
settlement results only in the payment by Sellers of the full amount of money
damages, provided, that the Sellers have made arrangements for the payment of
such damages in a manner reasonably satisfactory to Buyer; in all other events,
the Sellers shall not consent to the entry of judgment or enter into any
settlement without the prior written consent of the Buyer Indemnified Parties,
which consent shall not be unreasonably withheld. The Buyer Indemnified Parties
shall make available to the Sellers or their agents all records and other
materials in the Buyer Indemnified Parties' possession reasonably required by
them for their use in contesting any third party claim or demand.
9.4 Indemnification by Buyer. Subject to the survival provisions set forth
in Section 9.1, Buyer agrees to indemnify and hold harmless Sellers and their
respective successors and assigns (individually a "Seller Indemnitee," and
collectively the "Seller Indemnified Parties") from, against and in respect of
any and all Losses, which Seller Indemnified Parties may at any time suffer or
incur, or become subject to, as a result of or in connection with:
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(i) any breach of the representations and warranties of Buyer
contained in this Agreement or in any instrument, certificate or affidavit
delivered by or on behalf of Buyer at the Closing in accordance with this
Agreement; and
(ii) any failure by Buyer to perform or otherwise fulfill or
comply with any covenant, undertaking, agreement or obligation to be
performed, fulfilled, or complied with by Buyer hereunder and under the
TBA Agreement prior to, on or after the Closing;
(iii) the Assumed Liabilities; or
(iv) any suit, action or other proceeding brought by any
governmental authority or Person arising out of, or in any way related to,
any of the matters referred to in 9.4(i) , 9.4(ii) or 9.4(iii);
provided, however, that if any action, suit, proceeding, claim, liability,
demand or assessment shall be asserted against any Seller Indemnitee in respect
of which such Seller Indemnitee proposes to demand indemnification, such Seller
Indemnitee shall notify Buyer thereof within a reasonable period of time after
assertion thereof, and such notice shall include copies of all suit, service and
claim documents, all other relevant documents in the possession of the Seller
Indemnitee and an explanation of the Seller Indemnitee's contentions and
defenses with as much specificity and particularity as the circumstances permit,
provided, that the failure of the Seller Indemnitee to give such notice shall
not relieve Buyer of its obligations under this Section 9.4, except to the
extent that Buyer shall have been prejudiced thereby. Subject to rights of or
duties to any insurer or other third Person having liability therefor, Buyer
shall have the right within twenty (20) days after receipt of such notice to
assume the control of the defense, compromise or settlement of any such action,
suit, proceeding, claim, liability, demand, or assessment, including, at its own
expense, employment of counsel; provided further, however, that if Buyer shall
have exercised its right to assume such control, the Seller Indemnitee may, in
its sole discretion and expense, employ counsel to represent it (in addition to
counsel employed by Buyer) in any such matter, and in such event counsel
selected by Buyer shall be required to cooperate with such counsel of the Seller
Indemnitee in such defense, compromise or settlement for the purpose of
informing and sharing information with such Seller Indemnitee. So long as Buyer
is defending in good faith any such claims or demands asserted by a third Person
against the Seller Indemnitee, the Seller Indemnitee shall not settle or
compromise such claim or demand. If Buyer has assumed the defense of any such
claim or demand, then it shall have the power and authority to settle or consent
to the entry of judgment without the consent of Sellers if the judgment or
settlement results only in the payment by Buyer of the full amount of money
damages, provided, that Buyer has made arrangements for the payment of such
damages in a manner reasonably satisfactory to Sellers; in all other events,
Buyer shall not consent to the entry of judgment or enter into any settlement
without the prior written consent of Sellers, which consent shall not be
unreasonably withheld. The Seller Indemnitee shall make available to the Buyer
or its agents all records and other materials in the Seller Indemnitee's
possession reasonably required by it for its use in contesting any third party
claim or demand.
9.5 Remedies. The indemnification provisions of this Article IX are the
sole and exclusive post-Closing remedy of Buyer and Sellers for a breach or
nonperformance of any
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representations, warranties or covenants contained in this Agreement or in any
related agreement, document, instrument or certificate (other than (i) the
rights and remedies contained in the TBA Agreement, which shall be deemed
non-exclusive herewith, (ii) in the case of fraud, and (iii) rights to seek
specific performance of post-closing covenants).
9.6 Certain Limitations of Liability.
(a) Anything to the contrary herein notwithstanding, no recovery
under the indemnification provisions of this Agreement shall include any
special, indirect, incidental or consequential damages whatsoever.
(b) No Loss shall be asserted by any party with respect to any
matter to the extent such Loss is covered by insurance.
(c) Any provision of this Agreement to the contrary notwithstanding,
the Seller Indemnitors shall have no obligation to indemnify any Buyer
Indemnified Parties for any Losses suffered or incurred by the Buyer Indemnified
Party for a breach of the representations or warranties of the Sellers made
under this Agreement or in any instrument, certificate or affidavit delivered by
or on behalf of Sellers under this Agreement until such Losses exceed an
aggregate deductible of Fifty Thousand Dollars ($50,000.00) (the "Indemnity
Deductible") (after which point the Seller Indemnitors shall be obligated to
indemnify Buyer from and against all Losses in excess of the Indemnity
Deductible); provided, however, that, notwithstanding any provision to the
contrary in this Agreement, Buyer Indemnified Parties shall not be entitled to
be indemnified by Sellers for any such Losses unless such Losses relating to an
individual claim exceed Five Thousand Dollars ($5,000.00), and such Losses
related to an individual claim for Losses for less than or equal to Five
Thousand Dollars ($5,000.00) shall not be counted toward the Indemnity
Deductible. For example, if Buyer Indemnified Parties suffer such Losses in
respect of five separate claims of Four Thousand Dollars ($4,000.00) each, none
of such claims will be counted in determining whether the Indemnity Deductible
has been satisfied. For purposes of this Section 9.6(c), an individual claim for
such Losses shall include any claims arising out of the same transaction or
occurrence.
(d) Any provision of this Agreement to the contrary notwithstanding,
the aggregate amount of Buyer Indemnified Parties' Losses required to be
indemnified or paid by the Sellers with (i) respect to claims for
indemnification made under Section 9.3(i) (and under 9.3(v) relating thereto),
and (ii) with respect to claims for indemnification made under Section 9.3(ii)
(and under 9.3(v) relating thereto) for actions, failures or breaches on the
part of either Seller occurring with Buyer's knowledge prior to Closing, shall
not exceed the sum of Five Hundred Thousand Dollars ($500,000.00) (after which
point the Sellers shall have no liability or obligation to indemnify the Buyer
Indemnified Parties with respect to such claims for indemnification).
9.7 Survival. Notwithstanding any other provision to the contrary in this
Agreement, this Article IX shall survive termination of this Agreement without
limitation.
9.8 Determination of Loss and Amount. In view of the limitation set forth
in Section 9.6(c), for purposes of determining whether any Loss has occurred, or
the amount of
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such Loss, the representations, warranties, covenants and agreements of the
parties set forth in this Agreement will be considered without regard to any
materiality qualification set forth therein.
ARTICLE X
FURTHER AGREEMENTS
10.1 Event of Loss. If prior to Closing the Station shall suffer an Event
of Loss , at Closing, Sellers shall assign to Buyer all its rights under any
insurance and all proceeds of insurance (excluding business interruption
proceeds for periods prior to the Closing Date) covering the property damage,
destruction or loss not repaired, replaced or restored prior to Closing.
10.2 Station Employees. Buyer, or one of its affiliates, shall, within
five (5) business days following the grant of the FCC Consent in respect of the
Station's main broadcast license, employ and hire (to the extent employees
accept employment) all employees of Sellers as of the Adjustment Time and any
other replacements therefor in the ordinary course of business, other than (i)
▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (collectively, the "Retained Employees") and
(ii) ▇▇▇▇ ▇▇▇▇▇▇▇, upon terms and conditions of employment no less favorable
than those of their respective current employment with Sellers, or, if
applicable, pursuant to the terms and provisions of such employees' respective
employment agreements as listed in Schedule 1.2. All employees of Sellers who
work in the operation of the Station as of the Adjustment Time and any other
replacements therefor in the ordinary course of business other than the Retained
Employees and ▇▇▇▇ ▇▇▇▇▇▇▇ shall be collectively referred to as "Eligible
Employees." Buyer understands, acknowledges and agrees that upon hire by Buyer,
the Eligible Employees shall no longer be entitled to participate in Sellers'
Station Employee Benefit Plans, and Buyer or its affiliates' shall cover those
Eligible Employees whom they hire under Buyer's (or an affiliate's) employee
benefit plans. Notwithstanding any provision to the contrary in this Agreement,
as of the date that Buyer hires or is required to hire Eligible Employees as
provided above, Buyer or its affiliates, as the case may be, shall assume all
obligations of Sellers under (i) any employment agreement described on Schedule
1.2 between Sellers and Eligible Employees, and (ii) all other obligations with
respect to Eligible Employees (other than those who refuse employment with
Buyer); including in each case severance obligations, to the extent set forth on
Schedule 4.19, but excluding all items described in clauses (A) through (G) of
the proviso to the definition of "Assumed Liabilities". All obligations to (x)
employees of Sellers who are not Eligible Employees and (y) Eligible Employees
whose employment is terminated by Sellers prior to the date that Buyer hires or
is required to hire Eligible Employees as provided above or who refuse to accept
employment with the Buyer, shall remain the responsibility of the Sellers. Any
notification required by any federal, state or local law governing mass layoffs
or terminations, including without limitation the federal Worker Adjustment and
Retraining Notification Act of 1988 (collectively, the "WARN Laws"), shall be
given by Buyer, and compliance with all the WARN Laws shall be Buyer's sole
responsibility and liability. Buyer shall indemnify, defend and hold the Sellers
Indemnified Parties harmless from and against all Losses arising out of (i) the
violation, or alleged violation, of any WARN Laws; (ii) the termination of
employment of any Eligible Employees, including, without limitation, any claims
for severance payments (to the extent set forth on Schedule 4.19) or accrued
vacation time; (iii) any claim by any Eligible Employee concerning the violation
or alleged violation of any federal, state or local laws; (iv)
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any claim for breach of any employment contract between Sellers and any Eligible
Employee; and (v) any acts or omissions of Eligible Employees, including,
without limitation, any acts or omissions thereof that Sellers may be
vicariously liable for; (A) in the case of clauses (i), (ii), (iii) and (iv)
above, to the extent such losses or claims relate to actions or omissions of
Buyer or its affiliates after the Adjustment Time, and (B) in the case of clause
(v) above, to the extent such acts or omissions were directed by Buyer or its
affiliates; provided that in no event shall Buyer or its affiliates be
responsible for or indemnify Sellers Indemnified Parties for any items described
in clauses (A) through (G) of the proviso of the definition of "Assumed
Liabilities." Sellers agree that for a period commencing on and from the date
hereof and ending twelve (12) months following the Closing, neither Sellers nor
their Affiliates shall (i) hire any person employed at the Station at any time
from the date hereof through the Closing Date (excluding the Retained Employees)
or (ii) solicit or induce any person employed at the Station at any time from
the date hereof through the Closing Date to remain in or return to the employ of
Seller or any of its Affiliates or otherwise attempt to retain or obtain the
services of any such person (excluding the Retained Employees).
10.3 Non-Competition. Sellers each separately and individually agree that
neither Sellers nor their Affiliates will, directly or indirectly, for a period
of three (3) years from and after the Closing Date own, manage, operate,
control, be employed by, participate in or be engaged in any manner with the
operation of a television broadcast station in the Joplin, Missouri Designated
Market Area. For purposes hereof, an "Affiliate" shall mean any person
controlling, controlled by or under common control with another Person, and
"control" shall mean the ownership (legal or beneficial) of over fifty percent
(50%) of the capital stock or common equity interests of the applicable Person.
ARTICLE XI
TERMINATION; MISCELLANEOUS
11.1 Termination. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing Date, as
follows:
(a) by mutual written agreement of Sellers and Buyer; or
(b) subject to the last paragraph of Section 6.2, by Buyer if any of
the conditions set forth in Article VII of this Agreement shall not have been
fulfilled by the Closing Date (provided that the failure of any such condition
to be fulfilled is not a result of the Buyer's breach of this Agreement or the
TBA Agreement); or
(c) by Sellers if any of the conditions set forth in Article VIII of
this Agreement shall not have been fulfilled by the Closing Date (provided that
the failure of any such condition to be fulfilled is not a result of either
Seller's breach of this Agreement or the TBA Agreement); or
(d) by Buyer or Sellers if a Final Order (unless waived by Buyer)
shall not have been issued on or before September 30, 2002 (provided that such
failure is not the result of the terminating Party's breach of this Agreement or
the TBA Agreement); provided that Sellers shall, if the failure of a Final Order
to be issued prior to September 30, 2002 is not the result of
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either Seller's breach of this Agreement or the TBA Agreement, have the right to
extend such date until December 1, 2002 pursuant to written notice of such
extension delivered to Buyer prior to September 30, 2002; or
(e) by Buyer, if Buyer is not then in material breach of this
Agreement or the TBA Agreement and either Seller is then in material breach of
this Agreement or the TBA Agreement, and such breach remains uncured within
thirty (30) days after receipt of written notice thereof from Buyer; provided
that such 30-day period will be extended for a reasonable period of time if the
breaching party is acting in good faith to cure and such delay is not materially
adverse to the other party; or
(f) by Sellers, if neither Seller is then in material breach of this
Agreement or the TBA Agreement and Buyer is then in material breach of this
Agreement or the TBA Agreement, and such breach remains uncured within thirty
(30) days after receipt of written notice thereof from Sellers; provided that
such 30-day period will be extended for a reasonable period of time if the
breaching party is acting in good faith to cure and such delay is not materially
adverse to the other party; or
(g) by Buyer or Seller upon termination (other than in connection
with Closing) of the TBA Agreement in accordance with the terms thereof.
Notwithstanding anything herein or in the TBA Agreement, the Parties agree that
if on such date which is the earlier of (i) the 10th day following the date on
which the FCC has released public notice of its grant of assignment of the
Station's FCC Licenses to Buyer, and (ii) April 30, 2002, the parties have not
obtained the necessary consents from SpectraSite to consummate the transactions
contemplated hereby (including with respect to Buyer's non-assumption of the
obligations described in clause (H) to the definition of Assumed Liabilities)
(provided that Sellers and their Affiliates shall not be required to provide any
guaranty with respect to or in connection with the obtaining of such consents,
as contemplated by Section 7.6(a)(ii) of the Master Site Lease Agreement which
is part of the SpectraSite Agreements or otherwise), this Agreement may be
terminated by Buyer or Sellers at any time following such date until such
consents from SpectraSite are obtained (provided that the failure to obtain such
consents is not the result of the terminating Party's breach of this Agreement
or the TBA Agreement), and such termination shall be treated as a termination
pursuant to Section 11.1(d) for the purposes of Section 11.2 hereof.
11.2 Rights on Termination; Waiver.
(a) If this Agreement is terminated pursuant to Section 11.1(a), or
11.1(b) (and neither Seller is in material default of this Agreement) or 11.1(c)
(and Buyer is not in material default of this Agreement), 11.1(d), or 11.1(g)
(and neither Party is in material default under the TBA Agreement), all further
obligations of the parties under or pursuant to this Agreement shall immediately
terminate without further liability of any party to the other and the initial
payment of $6,000,000.00 (together with interest thereon at a rate of 9% per
annum) made pursuant to Section 2.2 hereof shall be returned promptly to Buyer
(provided that any payment pursuant to the terms of Section 2.9 shall remain
payable and shall be paid pursuant to the terms thereof).
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(b) If this Agreement is terminated (or terminable in the case of
clause (i) below) by Buyer pursuant to Section 11.1(b) (and either Seller is in
material default of this Agreement), pursuant to Section 11.1(e), or pursuant to
Section 11.1(g) (and Sellers are in material default under the TBA Agreement),
then Buyer shall be entitled to (i) pursue the legal remedy of specific
performance (in lieu of terminating this Agreement), or (ii) (A) be repaid by
Sellers the initial payment of $6,000,000.00 made pursuant to Section 2.2 hereof
(together with interest thereon at a rate of 9% per annum), and (B) claim and be
paid an amount equal to its direct and actual damages (provided that any payment
pursuant to the terms of Section 2.9 shall remain payable and shall be paid
pursuant to the terms thereof).
(c) If this Agreement is terminated by Seller pursuant to Section
11.1(c) (and Buyer is in material default of this Agreement), pursuant to
Section 11.1(f), or pursuant to Section 11.1(g) (and Buyer is in material
default under the TBA Agreement), then Sellers shall be entitled to keep as its
sole liquidated damages hereunder and under the TBA Agreement, the sum of
$6,000,000.00 paid pursuant to Section 2.2 (provided that any payment pursuant
to the terms of Section 2.9 shall remain payable and shall be paid pursuant to
the terms thereof).
(d) The parties agree that the liquidated damages provided in
Sections (b) and (c) above are intended to limit the claims that a
non-defaulting party hereto may have against a defaulting party hereto in the
circumstances described therein. The parties acknowledge and agree that the
liquidated damages provided in such Sections bear a reasonable relationship to
the anticipated harm, which would be caused by a breach of this Agreement and
the TBA Agreement. The parties further acknowledge and agree that the amount of
actual loss caused by a breach of this Agreement is incapable and difficult of
precise estimation and that there would not be a convenient and adequate
alternative to liquidated damages hereunder.
11.3 Further Assurances. From time to time after the Closing Date, upon
the reasonable request of Buyer, Sellers shall execute and deliver or cause to
be executed and delivered such further instruments of conveyance, assignment and
transfer and take such further action as Buyer may reasonably request in order
more effectively to sell, assign, convey, transfer, reduce to possession and
record title to Buyer to any of the Purchased Assets. Sellers agree to cooperate
with Buyer in all reasonable respects to assure to Buyer the continued title to
and possession of the Purchased Assets in the condition and manner contemplated
by this Agreement; provided, however, Sellers shall not be required to spend
additional sums of money other than incidental expenses.
11.4 Survival. The obligations to indemnify contained in Article IX
hereof, the agreements contained herein and, as limited by Article IX hereof,
the representations and warranties made in this Agreement or made pursuant
hereto shall survive the Closing and the consummation of the transactions
contemplated by this Agreement, and any dissolution, merger or consolidation of
Buyer or Sellers and shall bind the legal representatives, assigns and
successors of Buyer and Sellers.
11.5 Entire Agreement; Amendment; Waivers. This Agreement, the TBA
Agreement and the documents required to be delivered pursuant hereto constitute
the entire agreement between the parties pertaining to the subject matter
hereof, and supersede all prior and contemporaneous agreements, understandings,
negotiations and discussions of the parties,
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whether oral or written, and there are no warranties, representations or other
agreements between the parties in connection with the subject matter hereof,
except as specifically set forth herein. No amendment, supplement, modification,
waiver or termination of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision of this Agreement, whether or not similar, unless otherwise expressly
provided.
11.6 Expenses. Except as otherwise specifically provided herein, whether
or not the transactions contemplated by this Agreement are consummated, each of
the parties shall pay the fees and expenses of its respective counsel,
accountants and other experts incident to the negotiation, drafting and
execution of this Agreement, the TBA Agreement and consummation of the
transactions contemplated hereby.
11.7 Benefit; Assignment. This Agreement shall be binding upon and inure
to the benefit of and shall be enforceable by Buyer and Sellers and their
respective proper successors and permitted assigns. This Agreement (and any
rights, obligations or liabilities hereunder) may not be assigned or delegated
in whole or in part by any party without the prior written consent of the other
party; provided, however, that Buyer may, without such consent, assign its
rights hereunder to (i) its lenders and (ii) after the Closing, to any other
Person; provided further that Sellers may, without such consent, assign their
rights hereunder to their lenders.
11.8 Confidentiality.
(a) Buyer agrees that prior to Closing, Buyer and its Affiliates,
respective agents and representatives shall only use for its or their own
benefit (except when required by law, rule or regulation and except for use in
connection with Buyer's financing of the transaction and Buyer's investigation
of the Station and its assets in connection with this Agreement), and shall hold
in strict confidence and not disclose (unless required under applicable laws or
pursuant to a duly issued subpoena), (i) any data or information relating to
Sellers, their Affiliates, or the Station obtained from Sellers or any of its
directors, officers, employees, agents or representatives in connection with
this Agreement, or (ii) any data and information relating to the business,
customers, financial statements, conditions or operations of the Station which
is confidential in nature and not generally known to the public (clauses (i) and
(ii) together, "Sellers' Information"). If the transactions contemplated in this
Agreement are not consummated for any reason, Buyer shall return to Sellers all
data, information and any other written material obtained by Buyer from Sellers
in connection with this transaction and any copies, summaries or extracts
thereof, and shall refrain from disclosing any of Sellers' Information to any
third party or using any of Sellers' Information for its own benefit or that of
any other person, other than in connection with the filing of tax returns
applicable to the Purchased Assets.
(b) Sellers agree that Sellers and their Affiliates, agents and
representatives shall only use for its or their own benefit (except when
required by law, rule or regulation and except for use in connection with their
investigations and review of Buyer in connection with this Agreement), and shall
hold in strict confidence and not disclose (unless required under applicable
laws or pursuant to a duly issued subpoena or in connection with obtaining any
required third party consents or approvals or filing any tax returns), (i) any
data or information, relating to Buyer or its Affiliates obtained from Buyer, or
from any of its directors, officers,
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employees, agents or representatives, in connection with this Agreement, or (ii)
any data and information relating to the business, customers, financial
statements, conditions or operations of the Station or the Buyer (including,
without limitation, of the Station's operations under the TBA Agreement) which
is confidential in nature and not generally known to the public (clauses (i) and
(ii) together "Buyer's Information"). If the transactions contemplated in this
Agreement are not consummated for any reason, Sellers shall return to Buyer all
data, information and any other written material obtained by Sellers from Buyer
in connection with this transaction and any copies, summaries or extracts,
thereof and shall refrain from disclosing any of Buyer's Information to any
third party or using any of Buyer's Information for its own benefit or that of
any other person other than in connection with the filing of tax returns.
(c) Notwithstanding any other provision to the contrary herein, the
provisions of this Section 11.9 shall survive the termination of this Agreement.
11.9 Notices. All communications or notices required or permitted by this
Agreement shall be in writing and shall be deemed to have been given (i) on the
date of personal delivery to an officer of the other party, or (ii) if sent by
telecopy or facsimile machine to the number shown below, on the date of such
confirmed facsimile or telecopy transmission, or (iii) when properly deposited
for delivery by commercial overnight delivery service, prepaid, or by deposit in
the United States mail, certified or registered mail, postage prepaid, return
receipt requested, on the date that is two days after the date set forth in the
records of such delivery service or on the return receipt and addressed as
follows, unless and until either of such parties notifies the other in
accordance with this Section of a change of address or change of telecopy
number:
If to Buyer: Mission Broadcasting of Joplin, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to (which shall not constitute notice to Buyer):
▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Citigroup Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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If to Sellers: c/o GoCom Holdings, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to (which shall not constitute notice to Sellers):
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
And to:
▇▇▇▇ and Marks
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
11.10 Counterparts; Headings. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same Agreement. This Agreement may be
executed and delivered in counterpart signature pages executed and delivered via
facsimile transmission, and any such counterpart executed and delivered via
facsimile transmission shall be deemed an original for all intents and purposes.
The Table of Contents and Article and Section headings in this Agreement are
inserted for convenience of reference only and shall not constitute a part
hereof.
11.11 Income Tax Position. Neither Buyer nor Sellers shall take a position
for income tax purposes which is inconsistent with this Agreement; provided,
however that nothing contained herein shall require Buyer or Sellers to contest
or litigate in any forum any proposed deficiency or adjustment by any taxing
authority or agency that may challenge the manner in which the transactions
under this Agreement are treated.
11.12 Severability. If any provision, clause or part of this Agreement or
the application thereof under certain circumstances is held invalid, or
unenforceable, the remainder of this Agreement, or the application of such
provision, clause or part under other circumstances, shall not be affected
thereby.
11.13 No Reliance. Except for (i) successors and any assignees permitted
by Section 11.8 of this Agreement and (ii) lenders (and their successors and
assigns) providing financing for the consummation of the transactions
contemplated by this Agreement:
(a) no third party is entitled to rely on any of the
representations, warranties or agreements of Buyer or Sellers contained in this
Agreement; and
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(b) Buyer and Sellers assume no liability to any third party because
of any reliance on the representations, warranties or agreements of Buyer and
Sellers contained in this Agreement.
11.14 Judicial Interpretation. Should any provision of this Agreement
require judicial interpretation, the parties hereto agree that the court
interpreting or construing the same shall not apply a presumption that the terms
hereof shall be more strictly construed against one party by reason of the rule
of construction that a document is to be construed more strictly against the
party which itself or through its agent prepared the same, it being agreed that
the agents of each party have participated in the preparation hereof.
11.15 Saturdays, Sundays and Legal Holidays. If the time period by which
any acts or payments required hereunder must be performed or paid expires on a
Saturday, Sunday or legal holiday, then such time period shall be automatically
extended to the close of business on the next regularly scheduled business day.
11.16 Governing Law. This Agreement shall be construed and interpreted
according to the laws of the State of Delaware, without regard to the conflict
of law principles thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
"BUYER"
MISSION BROADCASTING OF JOPLIN, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
"SELLERS"
GOCOM BROADCASTING OF JOPLIN, LLC
GOCOM OF JOPLIN LICENSE SUB, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
The undersigned joins in the execution of this Agreement for the purpose of
jointly, severally and directly guaranteeing to Buyer the full and prompt
payment and performance of all of the indemnity obligations of Sellers under and
with respect to this Agreement and the TBA Agreement.
GOCOM BROADCASTING OF HUNTSVILLE, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President