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EXHIBIT 10.156
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ASSET PURCHASE AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇▇▇▇ MEDIA OF FLORIDA, INC.,
▇▇▇▇▇▇▇▇▇ BROADCASTING OF FLORIDA, INC.
AND
▇▇▇▇▇▇ COMMUNICATIONS OF FT. ▇▇▇▇▇▇-34, INC.
FOR
TELEVISION STATION WTVX(TV),
FT. ▇▇▇▇▇▇, FLORIDA
MARCH 21, 1997
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TABLE OF CONTENTS
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RECITALS........................................................... 1
AGREEMENTS......................................................... 1
SECTION 1. DEFINITIONS............................................. 1
"Assets"........................................................... 1
"Assumed Contracts"................................................ 1
"Closing".......................................................... 1
"Closing Date"..................................................... 2
"Consents"......................................................... 2
"Contracts"........................................................ 2
"FCC".............................................................. 2
"FCC Consent"...................................................... 2
"FCC Licenses"..................................................... 2
"Final Order"...................................................... 2
"Intangibles"...................................................... 2
"Licenses"......................................................... 2
"Permitted Liens".................................................. 3
"Person"........................................................... 3
"Purchase Price"................................................... 3
"Real Property".................................................... 3
"Tangible Personal Property"....................................... 3
SECTION 2. PURCHASE AND SALE OF ASSETS............................. 3
2.1 Agreement to Sell and Buy................................... 3
2.2 Excluded Assets............................................. 4
2.3 Purchase Price.............................................. 4
(a) Prorations.............................................. 4
(b) Manner of Determining Adjustments....................... 5
2.4 Assumption of Liabilities and Obligations................... 5
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER................ 5
3.1 Organization, Standing and Authority........................ 5
3.2 Authorization and Binding Obligation........................ 6
3.3 Absence of Conflicting Agreements........................... 6
3.4 Governmental Licenses....................................... 6
3.5 Title to and Condition of Real Property..................... 7
3.6 Title to and Condition of Tangible Personal Property........ 7
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3.7 Contracts................................................... 7
3.8 Consents.................................................... 8
3.9 Intangibles................................................. 8
3.10 Insurance................................................... 8
3.11 Reports..................................................... 8
3.12 Personnel................................................... 8
(a) Employees and Compensation.............................. 8
(b) Labor Relations......................................... 9
(c) Liabilities............................................. 9
3.13 Taxes....................................................... 9
3.14 Claims and Legal Actions.................................... 9
3.15 Environmental Matters....................................... 10
3.16 Compliance with Laws........................................ 11
3.17 Full Disclosure............................................. 11
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER................. 11
4.1 Organization, Standing and Authority........................ 11
4.2 Authorization and Binding Obligation........................ 11
4.3 Absence of Conflicting Agreements........................... 12
4.4 Full Disclosure............................................. 12
4.5 Buyer Qualifications........................................ 12
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING.............. 12
5.1 Generally................................................... 12
5.2 Contracts................................................... 12
5.3 Disposition of Assets....................................... 13
5.4 Encumbrances................................................ 13
5.5 Licenses.................................................... 13
5.6 Rights...................................................... 13
5.7 Access to Information....................................... 13
5.8 Insurance................................................... 13
5.9 Consents.................................................... 13
5.10 Books and Records........................................... 14
5.11 Notification................................................ 14
5.12 Compliance with Laws........................................ 14
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS........................ 14
6.1 FCC Consent................................................. 14
6.2 Control of the Station...................................... 15
6.3 Risk of Loss................................................ 15
6.4 Confidentiality............................................. 15
6.5 Cooperation................................................. 15
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6.6 Access to Books and Records................................. 15
6.7 Broker...................................................... 16
6.8 HSR Act Filing.............................................. 16
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT
CLOSING...................... 16
7.1 Conditions to Obligations of Buyer.......................... 16
(a) Representations and Warranties.......................... 16
(b) Covenants and Conditions................................ 16
(c) Consents................................................ 16
(d) FCC Consent............................................. 16
(e) Governmental Authorizations............................. 16
(f) Deliveries.............................................. 17
(g) HSR Act................................................. 17
7.2 Conditions to Obligations of Seller......................... 17
(a) Representations and Warranties.......................... 17
(b) Covenants and Conditions................................ 17
(c) Deliveries.............................................. 17
(d) FCC Consent............................................. 17
(e) HSR Act................................................. 17
SECTION 8. CLOSING AND CLOSING DELIVERIES.......................... 17
8.1 Closing..................................................... 17
(a) Closing Date............................................ 17
(b) Closing Place........................................... 18
8.2 Deliveries by Seller........................................ 18
(a) Transfer Documents...................................... 18
(b) Estoppel Certificate.................................... 18
(c) Consents................................................ 18
(d) Certificates............................................ 18
(e) Licenses, Contracts, Business Records, Etc.............. 18
(f) Opinions of Counsel..................................... 18
8.3 Deliveries by Buyer......................................... 18
(a) Purchase Price.......................................... 19
(b) Assumption Agreements................................... 19
(c) Officer's Certificate................................... 19
(d) Opinion of Counsel...................................... 19
SECTION 9. TERMINATION............................................. 19
9.1 Termination by Seller....................................... 19
(a) Conditions.............................................. 19
(b)......................................................... 19
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(c) Upset Date.............................................. 19
(d)......................................................... 19
9.2 Termination by Buyer........................................ 20
(a) Conditions.............................................. 20
(b) Judgments............................................... 20
(c) Upset Date.............................................. 20
9.3 Rights on Termination....................................... 20
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES................ 21
10.1 Representations and Warranties.............................. 21
10.2 Indemnification by Seller................................... 21
10.3 Indemnification by Buyer.................................... 22
10.4 Procedure for Indemnification............................... 22
10.5 Specific Performance........................................ 23
10.6 Attorneys' Fees............................................. 23
SECTION 11. MISCELLANEOUS.......................................... 24
11.1 Fees and Expenses........................................... 24
11.2 Arbitration................................................. 24
11.3 Notices..................................................... 24
11.4 Benefit and Binding Effect.................................. 25
11.5 Further Assurances.......................................... 25
11.6 GOVERNING LAW............................................... 26
11.7 Headings.................................................... 26
11.8 Gender and Number........................................... 26
11.9 Entire Agreement............................................ 26
11.10 Waiver of Compliance; Consents.............................. 26
11.11 Counterparts................................................ 26
11.12 Press Releases.............................................. 26
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LIST OF SCHEDULES
Schedule 2.2 -- Excluded Property
Schedule 3.3 -- Consents
Schedule 3.4 -- Licenses
Schedule 3.5 -- Real Property
Schedule 3.6 -- Tangible Personal Property
Schedule 3.7 -- Assumed Contracts
Schedule 3.9 -- Intangibles
Schedule 3.10 -- Insurance Policies
Schedule 3.12 -- Employee Matters
Schedule 8.2(f) -- Form of Opinion of Seller's Counsel
Schedule 8.3(d) -- Form of Opinion of Buyer's Counsel
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is dated as of March 21, 1997, by and among
▇▇▇▇▇▇▇▇▇ Media of Florida, Inc., a Delaware corporation ("▇▇▇▇▇▇▇▇▇-Florida"),
▇▇▇▇▇▇▇▇▇ Broadcasting of Florida, Inc., a Delaware corporation ("▇▇▇▇▇▇▇▇▇
Broadcasting" and collectively with ▇▇▇▇▇▇▇▇▇-Florida, "Seller"), and ▇▇▇▇▇▇
Communications of Ft. ▇▇▇▇▇▇-34, Inc., a Florida corporation ("Buyer").
RECITALS
A. Seller is the owner and operator of television station WTVX(TV), Ft.
▇▇▇▇▇▇, Florida (the "Station"), pursuant to authorizations issued by the
Federal Communications Commission ("FCC").
B. Seller desires to sell, and Buyer wishes to buy, substantially all the
assets that are owned by Seller or in which Seller has a transferable interest
and which are used or useful in the business or operations of the Station, for
the price and on the terms and conditions set forth in this Agreement.
AGREEMENTS
In consideration of the above recitals and of the mutual agreements and
covenants contained in this Agreement, Buyer and Seller, intending to be bound
legally, agree as follows:
SECTION 1. DEFINITIONS
The following terms, as used in this Agreement, shall have the meanings set
forth in this Section:
"Assets" means the assets to be sold, transferred, or otherwise conveyed to
Buyer under this Agreement, as specified in Section 2.1 and 2.2.
"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7 that are
to be assumed by Buyer upon its purchase of the Station, (ii) all Contracts
entered into by Seller in the ordinary course of business which comply with the
provisions of Section 5.3 hereof; and (iii) any other Contracts entered into by
Seller between the date of this Agreement and the Closing Date that Buyer agrees
in writing to assume.
"Closing" means the consummation of the purchase and sale of the Assets
pursuant to this Agreement in accordance with the provisions of Section 8.
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"Closing Date" means the date on which the Closing occurs, as determined
pursuant to Section 8.
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to Buyer or
otherwise to consummate the transactions contemplated by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses, and
other agreements (including leases for personal or real property and employment
agreements), written or oral (including any amendments and other modifications
thereto) to which Seller is a party or which are binding upon Seller and which
relate to or affect the Assets or the business or operations of the Station, and
(i) which are in effect on the date of this Agreement or (ii) which are entered
into by Seller between the date of this Agreement and the Closing Date.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the
assignment of the FCC Licenses to Buyer as contemplated by this Agreement.
"FCC Licenses" means all Licenses and/or Construction Permits issued by the
FCC to Seller in connection with the business or operations of the Station.
"Final Order" means an action by the FCC that has not been reversed,
stayed, enjoined, set aside, annulled, or suspended, and with respect to which
no requests are pending for administrative or judicial review, reconsideration,
appeal, or stay, and the time for filing any such requests and the time for the
FCC to set aside the action on its own motion have expired.
"Intangibles" means all copyrights, trademarks, trade names, service marks,
service names, licenses, patents, permits, jingles, proprietary information,
technical information and data, machinery and equipment warranties, and other
similar intangible property rights and interests (and any goodwill associated
with any of the foregoing) applied for, issued to, or owned y Seller or under
which Seller is licensed or franchised and which are used or useful in the
business and operations of the Station, together with any additions thereto
between the date of this Agreement and the Closing Date.
"Licenses" means all licenses, permits, and other authorizations issued by
the FCC, the Federal Aviation Administration, or any other federal, state, or
local government authorities to Seller in connection with the conduct of the
business or operations of the Station, together with any additions thereto
between the date of this Agreement and the Closing Date.
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"Permitted Liens" means liens for taxes not yet due and payable.
"Person" means an individual, a partnership, a corporation, an association,
a joint stock company, a trust, a joint venture, or any governmental entity.
"Purchase Price" means the purchase price specified in Section 2.3.
"Real Property" means Seller's interests in real property, leaseholds and
subleaseholds, purchase options, easements, licenses, rights to access, and
rights of way, and all buildings and other improvements thereon, which are used
or useful in the business or operations of the Station, together with any
additions thereto between the date of this Agreement and the Closing Date.
"Tangible Personal Property" means all machinery, equipment, tools,
furniture, leasehold improvements, office equipment, plant, inventory, spare
parts, and other tangible personal property which is owned by the Seller or in
which Seller has an interest and which is used or useful in the conduct of the
business or operations of the Station, together with any additions thereto
between the date of this Agreement and the Closing Date, but excluding any
Tangible Personal Property consumed in the ordinary course of business between
the date hereof and the Closing Date.
SECTION 2. PURCHASE AND SALE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and conditions set
forth in this Agreement, Seller hereby agrees to sell, transfer, assign and
deliver to Buyer on the Closing Date, and Buyer agrees to purchase and accept,
all of the Assets and property interests owned by Seller or in which Seller has
a property interest which are used or useful in connection with the conduct of
the business or operations of the Station, together with any additions thereto
between the date of this Agreement and the Closing Date, but excluding the
assets described in Section 2.2, free and clear of any claims, liabilities,
security interests, mortgages, liens, pledges, conditions, charges, or
encumbrances of any nature whatsoever (except for Permitted Liens), including
the following:
(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles, including the goodwill of the Station, if any;
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(f) All proprietary information, technical information and data,
machinery and equipment warranties, maps, computer discs and tapes, plans,
diagrams, blueprints, and schematics, including filings with the FCC relating to
the business and operation of the Station, which belong to Seller and is within
its possession and control;
(g) All choses in action of Seller relating to the Station that are
assignable to Buyer as provided herein;
(h) All records required by the FCC to be kept by the Station and copies
of all other books and records which belong to Seller and are within its
possession and control relating to the business or operations of the Station
(exclusive of corporate, financial and accounting records), including executed
copies of the Assumed Contracts; and
2.2 Excluded Assets. The Assets shall exclude the following assets.
(a) Seller's cash on hand as of the Closing and all other cash in any of
Seller's bank or savings accounts; any insurance policies, letters of credit, or
other similar items and cash surrender value in regard thereto; and any stocks,
bonds, certificates of deposit and similar securities or other investments;
(b) All corporate and accounting records of Seller and copies of all
other books and records relating to the business and operations of the Station;
and
(c) All property listed on Schedule 2.2 hereto.
2.3 Purchase Price. The Purchase Price for the Assets shall be $1,500,000.
Contemporaneously with the execution of this Agreement, Buyer has paid to Seller
in cash an advance toward the payment of the Purchase Price in the amount of One
Million Dollars ($1,000,000), and Seller hereby acknowledges receipt of such
amount. Buyer shall pay Seller in cash at the Closing the balance of the
Purchase Price in the amount of Five Hundred Thousand Dollars ($500,000),
adjusted as provided below.
(a) Prorations. The Purchase Price shall be increased or decreased as
required to effectuate the proration of expenses as of 11:59 p.m. local time, on
the day prior to the Closing Date. All expenses arising from the operation of
the Station, including business and license fees, utility charges, real and
personal property taxes and assessments levied against the Assets, property and
equipment rentals, applicable copyright or other fees, sales and service
charges, taxes (except for taxes arising from the transfer of the Asset under
this Agreement which shall be governed by Section 11.1 hereof), prepaid time
sales agreements and similar prepaid and deferred items, shall be prorated
between Buyer and Seller in accordance with the principle that Seller shall be
responsible for all expenses, costs, and liabilities allocable to the period
prior to the Closing Date, and Buyer shall be responsible for all expenses,
costs, and obligations allocable to the period on and after the
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Closing Date. Notwithstanding the preceding sentence, there shall be no
adjustment for, and Seller shall remain solely liable with respect to, any
Contracts not included in the Assumed Contracts and any other obligation or
liability not being assumed by Buyer in accordance with Section 2.5.
(b) Manner of Determining Adjustments. Any adjustments will, insofar as
feasible, be determined and paid on the Closing Date, with final settlement and
payment by the appropriate party occurring no later than ninety (90) days after
the Closing Date or such other date as the parties shall mutually agree upon.
2.4 Assumption of Liabilities and Obligations. As of the Closing Date,
Buyer shall (a) assume and undertake to pay, discharge, and perform all
obligations and liabilities of the Seller under the Licenses and the Assumed
Contracts insofar as they relate to the time on and after the Closing Date, and
arise out of events related to Buyer's ownership of the Assets or its operation
of the Station on or after the Closing Date and those relating to the period
prior to the Closing which Buyer agrees to assume pursuant to the prorations and
adjustments and (b) shall pay that portion of the principal and interest due and
payable following the Closing Date pursuant to the terms of the Credit Agreement
dated as of December 29, 1995, among ▇▇▇▇▇▇▇▇▇ Media, Inc. and its Affiliates,
the several Lenders From Time to Time Parties thereto, CIBC Inc., as
Documentation Agent, and Banque Paribas, as Administrative Agent that is
allocable to the Station as set forth in Schedule 6.03 to the Credit Agreement.
Buyer shall not assume any other obligations or liabilities of Seller, including
(i) any obligations or liabilities under any Contract not included in the
Assumed Contracts, (ii) any obligations or liabilities under the Assumed
Contracts relating to the period prior to the Closing Date, (iii) any claims or
pending litigation or proceedings relating to the operation of the Station prior
to the Closing, (iv) any obligations or liabilities arising under agreements
entered into other than in the ordinary course of business, (v) any obligation
to any employee of the Station for severance benefits, vacation time, or sick
leave accrued prior to the Closing Date relating to any employee of Seller who
is not employed or offered employment by Buyer within the 90-day adjustment
period, or (vi) any obligations or liabilities caused by, arising out of, or
resulting from any action or omission of Seller prior to the Closing, and all
such obligations and liabilities shall remain and be the obligations and
liabilities solely of Seller.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization, Standing and Authority. Seller is a corporation organized
under the laws of Delaware. Seller has all requisite power and authority (i) to
own, lease, and use the Assets as now owned, leased, and used, (ii) to conduct
the business operations of the Station as now conducted, and (iii) to execute
and deliver this Agreement and the documents
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contemplated hereby, and to perform and comply with all of the terms, covenants,
and conditions to be performed and complied with by Seller hereunder and
thereunder. Seller is not a participant of any joint venture or partnership with
any person or entity with respect to any part of the operations of the Station
or any of the Assets.
3.2 Authorization and Binding Obligation. The execution, delivery, and
performance of this Agreement by Seller have been duly authorized by all
necessary corporate actions on the part of Seller. This Agreement has been duly
executed and delivered by Seller and constitutes the legal, valid, and binding
obligation of Seller, enforceable against it in accordance with its terms except
as the enforceability of this Agreement may be affected by bankruptcy,
insolvency, or similar laws affecting creditors' rights generally, and by
judicial discretion in the enforcement of equitable remedies.
3.3 Absence of Conflicting Agreements. Subject to obtaining the Consents
listed on Schedule 3.3 and making any filing required under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvement Act of 1976, as amended (the "HSR Act"),
the execution, delivery, the performance of this Agreement and the documents
contemplated hereby (with or without the giving of notice, the lapse of time, or
both): (i) do not require the consent of any third party; (ii) will not conflict
with, result in a breach of, or constitute a default under, any law, judgment,
order, ordinance, injunction, decree, rule, regulation, or ruling of any court
or governmental instrumentality in a proceeding involving Seller; (iii) will not
conflict with, constitute grounds for termination of, result in a breach of,
constitute a default under, or accelerate or permit the acceleration of any
performance required by the terms of, any agreement, instrument, license, or
permit to which Seller is a party or by which Seller may be bound; (iv) will not
create any claim, liability, mortgage, lien, pledge, condition, charge, or
encumbrance of any nature whatsoever upon any of the Assets; and (v) will not
conflict with any provision of Seller's Certificate of Incorporation or By-laws.
3.4 Governmental Licenses. To the best of Seller's knowledge and except as
set forth on Schedule 3.4, (i) Schedule 3.4 includes a true and complete list of
the material Licenses and lists pending applications affecting the Licenses;
(ii) Seller has delivered to Buyer true and complete copies of the Licenses
listed on such Schedule (including any amendment and other modifications
thereto), (iii) the Licenses have been validly issued, and Seller is the
authorized legal holder thereof, (iv) the Licenses listed on Schedule 3.4
comprise all of the material licenses, permits, and other authorizations
required from any governmental or regulatory authority for the lawful conduct of
the business and operations of the Station in the manner and to the full extent
they are now conducted, (v) none of the Licenses is subject to any restriction
or condition that would limit the full operation of the Station as now operated,
(vi) the Licenses are in full force and effect, in all material respects, and
the conduct of the business and operations of the Station is in material
accordance therewith, and (vii) Seller has no reason to believe that any of the
Licenses would not be renewed by the FCC or other granting authority in the
ordinary course.
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3.5 Title to and Condition of Real Property. Schedule 3.5 contains a
complete and accurate description of all the Real Property and Seller's
interests therein (including street address, legal description, owner, and use
and the location of all improvements thereon). The Real Property listed on
Schedule 3.5 comprises all real property interests necessary to conduct the
business and operations of the Station as now conducted. With respect to each
leasehold or subleasehold interest included in the Real Property being conveyed
under this Agreement, so long as Seller fulfills its obligations under the lease
therefor, Seller has enforceable rights to nondisturbance and quiet enjoyment,
and no third party holds any interest in the leased premises with the right to
foreclose upon Seller's leasehold or subleasehold interest. Seller has full
legal and practical access to the Real Property. All easements, rights-of-way,
and real property licenses relating to the Real Property have been properly
recorded in the appropriate public recording offices. Seller will cooperate with
Buyer and provide such assistance as Buyer may reasonably request in connection
with Buyer's efforts to obtain on or before Closing, at Buyer's election and
expense, a policy of title insurance and a current survey with respect to the
Real Property, including, without limitation, using its best efforts to cause
all lease agreements relating to the Real Property to be recorded in the
appropriate public recording offices.
3.6 Title to and Condition of Tangible Personal Property. Schedule 3.6
lists all material items of Tangible Personal Property. To the best of Seller's
knowledge, except for a security interest given in connection with the Credit
Agreement referenced in Section 2.4 hereof and Permitted Liens, none of the
Tangible Personal Property owned by Seller is subject to any security interest,
mortgage, pledge, conditional sales agreement, or other lien or encumbrance.
Seller has not taken or permitted to be taken any action which would affect its
ownership of or ability to transfer good title to the Tangible Personal
Property.
3.7 Contracts. Schedule 3.7 is a true and complete list of all Assumed
Contracts except contracts with advertisers for the sale of advertising time on
the Station for cash at prevailing rates and which may be canceled by the
Station without penalty on not more than ninety days' notice. Seller has
delivered to Buyer true and complete copies of all written Assumed Contracts,
true and complete memoranda of all material oral Assumed Contracts (including
any amendments and other modifications to such Assumed Contracts), and a
schedule summarizing Seller's obligations under trade and barter agreements
relating to the Station. To the best of Seller's knowledge, all of the Assumed
Contracts are in full force and effect, and are valid, binding, and enforceable
in accordance with their terms and there is not under any Assumed Contract any
default by any party thereto or any event that, after notice or lapse of time or
both, could constitute a default. Except for the need to obtain the Consents
listed in Schedule 3.3, Seller has full legal power and authority to assign its
rights under the Assumed Contracts to Buyer in accordance with this Agreement,
and such assignment will not affect the validity, enforceability, or
continuation of any of the Assumed Contracts.
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3.8 Consents. Except for the FCC Consent provided in Section 6.1, any
filing required under the HSR Act, and the other Consents described in Schedule
3.3, to the best of Seller's knowledge, no consent, approval, permit, or
authorization of, or declaration to or filing with any governmental or
regulatory authority, or any other third party is required (i) to consummate
this Agreement and the transactions contemplated hereby, (ii) to permit Seller
to assign or transfer the Assets to Buyer, or (iii) to enable Buyer to conduct
the business and operations of the Station in essentially the same manner as
such business and operations are now conducted.
3.9 Intangibles. To the best of Seller's knowledge, Schedule 3.9 is a true
and complete list of all material Intangibles (exclusive of those listed in
Schedule 3.4), all of which are valid and in good standing and uncontested.
Seller has delivered to Buyer copies of all documents establishing or evidencing
all intangibles.
3.10 Insurance. Schedule 3.10 is a true and complete list of all insurance
policies of Seller that insure any part of the Assets or the business of the
Station. All policies of insurance listed in Schedule 3.10 are in full force and
effect.
3.11 Reports. To the best of Seller's knowledge and except as set forth in
Schedule 3.4, all returns, reports, and statements that the Station is currently
required to file with the FCC or place in its Public File or file with any other
governmental agency have been filed, and all reporting requirements of the FCC
and other governmental authorities having jurisdiction over Seller and the
Station have been complied with in all material respects and all of such
returns, reports, and statements are substantially complete and correct as
filed.
3.12 Personnel.
(a) Employees and Compensation. Schedule 3.12 contains a true and
complete list of all employees of the Station, their job description, date of
hire, salary and amount and date of last salary increase. Schedule 3.12 also
contains a true and complete list as of the date of this Agreement of all
employee benefit plans or arrangements applicable to the employees of the
Station and all fixed or contingent liabilities or obligations of Seller with
respect to any person now or formerly employed by Seller at the Station,
including pension or thrift plans, individual or supplemental pension or accrued
compensation arrangements, contributions to hospitalization or other health or
life insurance programs, incentive plans, bonus arrangements, and vacation, sick
leave, disability and termination arrangements or policies, including workers'
compensation policies, and a description of all fixed or contingent liabilities
or obligations of Seller with respect to any person now or formerly employed at
the Station or any person now or formerly retained as an independent contractor
at the Station.
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(b) Labor Relations. Seller is not a party to or subject to any
collective bargaining agreements with respect to the Station. Seller has no
written or oral contracts of employment with any employee of the Station, other
than those listed in Schedule 3.7.
(c) Liabilities. Seller has no liability of any kind to or in respect of
any employee benefit plan, including withdrawal liability under Section 4201 of
ERISA. Seller has not incurred any accumulated funding deficiency within the
meaning of ERISA or Section 4971 of the Internal Revenue Code. Seller has not
failed to make any required contributions to any employee benefit plan. The
Pension Benefit Guaranty Corporation has not asserted that Seller has incurred
any liability in connection with any such plan. No lien has been attached and no
person has threatened to attach a lien on any property of Seller as a result of
a failure to comply with ERISA.
3.13 Taxes. To the best of the Seller's knowledge, (i) Seller has filed or
caused to be filed all federal income tax returns and all other federal, state,
county, local, or city tax returns which are required to be filed, and it has
paid or caused to be paid all taxes shown on those returns or on any tax
assessment received by it to the extent that such taxes have become due, and
(ii) there are no governmental investigations or other legal, administrative, or
tax proceedings pursuant to which Seller is or could be made liable for any
taxes, penalties, interest, or other charges, the liability for which could
extend to Buyer as transferee of the business of the Station, and no event has
occurred that could impose on Buyer any transferee liability for any taxes,
penalties, or interest due or to become due from Seller.
3.14 Claims and Legal Actions. Except for any FCC rulemaking proceedings
generally affecting the broadcasting industry, and except as set forth on
Schedule 3.4, to the best of Seller's knowledge, there is no claim, legal
action, counterclaim, nor any order, decree or judgment, in progress or pending,
or to the knowledge of Seller threatened, against or relating to Seller with
respect to its ownership or operation of the Station or otherwise relating to
the Assets or the business or operations of the Station, nor does Seller know or
have reason to be aware of any basis for the same. In particular, but without
limiting the generality of the foregoing, and except as forth on Schedule 3.14,
to the best of Seller's knowledge, there are no applications, complaints or
proceedings pending or, to the best of its knowledge, threatened (i) before the
FCC relating to the business or operations of the Station other than rule making
proceedings which affect the radio industry generally, (ii) before any federal
or state agency relating to the business or operations of the Station involving
charges of illegal discrimination under any federal or state employment laws or
regulations, or (iii) before any federal, state, or local agency relating to the
business or operations of the Station involving zoning issues under any federal,
state, or local zoning law, rule, or regulation.
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3.15 Environmental Matters.
(a) Seller has complied in all material respects with all laws, rules,
and regulations of all federal, state, and local governments (and all agencies
thereof) concerning the environment, public health and safety, and employee
health and safety, and no charge, complaint, action, suit, proceeding, hearing,
investigation, claim, demand, or notice has been filed or commenced against
Seller in connection with its ownership or operation of the Station alleging any
failure to comply with any such law, rule, or regulation.
(b) To the best of Seller's knowledge, Seller has no liability relating
to its ownership and operation of the Station (and there is no basis related to
the past or present operations, properties, or facilities of Seller for any
present or future charge, complaint, action, suit, proceeding, hearing,
investigation, claim, or demand against Seller giving rise to any such
liability) under any law, rule, or regulation of any federal, state, or local
government (or agency thereof) concerning release or threatened release of
hazardous substances, public health and safety, or pollution or protection of
the environment.
(c) To the best of Seller's knowledge, Seller has no liability relating
to its ownership and operation of the Station (and Seller has not handled or
disposed of any substance, arranged for the disposal of any substance, or owned
or operated any property or facility in any manner that could form the basis for
any present or future charge, complaint, action, suit, proceeding, hearing,
investigation, claim, or demand (under the common law or pursuant to any
statute) against Seller giving rise to any such liability) for damage to any
site, location, or body of water (surface of subsurface) or for illness or
personal injury.
(d) To the best of Seller's knowledge, Seller has no liability relating
to its ownership and operation of the Station (and there is no basis for any
present or future charge, complaint, action, suit, proceeding, hearing,
investigation, claim, or demand against Seller giving rise to any such
liability) under any law, rule, or regulation of any federal, state, or local
government (or agency thereof) concerning employee health and safety.
(e) In connection with its ownership or operation of the Station, Seller
has obtained and been in material compliance with all of the terms and
conditions of all permits, licenses, and other authorizations which are required
under, and has complied in all material respects with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules, and timetables which are contained in, all federal, state, and local
laws, rules, and regulations (including all codes, plans, judgments, orders,
decrees, stipulations, injunctions, and charges thereunder) relating to public
health and safety, worker health and safety, and pollution or protection of the
environment, including laws relating to emissions, discharges, releases, or
threatened releases of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes into ambient air, surface water, ground
water, or lands or otherwise relating to the manufacture, processing,
distribution,
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use, treatment, storage, disposal, transport, or handling of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes.
(f) To the best of Seller's knowledge, all properties and equipment used
in the business of the Station are and have been free of asbestos and
asbestos-related products, PCB's, dioxins, and Extremely Hazardous Substances
(as defined in Section 302 of the Emergency Planning and Community Right-to-Know
Act).
(g) No pollutant, contaminant, or chemical, industrial, hazardous, or
toxic material or waste has ever been manufactured, buried, stored, spilled,
leaked, discharged, emitted, or released by Seller in connection with its
ownership and operation of the Station or, to the best of Seller's knowledge,
after due investigation, by any other party on any Real Property.
3.16 Compliance with Laws. To the best Seller's knowledge and except as set
forth on Schedule 3.4, Seller has complied in all material respects with the
Licenses and all federal, state, and local laws, rules, regulations, and
ordinances applicable or relating to the ownership and operation of the Station.
To the best of Seller's knowledge, neither the ownership or use of the
properties of the Station nor the conduct of the business or operations of the
Station conflicts with the rights of any other person or entity.
3.17 Full Disclosure. No representation or warranty made by Seller in this
Agreement or in any certificate, document, or other instrument furnished or to
be furnished by Seller pursuant hereto contains or will knowingly contain any
untrue statement of a material fact.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization, Standing and Authority. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Florida. Buyer has all requisite power and authority to execute and deliver this
Agreement and the documents contemplated hereby, and to perform and comply with
all of the terms, covenants, and conditions to be performed and complied with by
Buyer hereunder and thereunder.
4.2 Authorization and Binding Obligation. The execution, delivery, and
performance of this Agreement by Buyer have been duly authorized by all
necessary actions on the part of Buyer. This Agreement has been duly executed
and delivered by Buyer and constitutes the legal, valid, and binding obligation
of Buyer, enforceable against Buyer in accordance with its terms except as the
enforceability of this Agreement may be affected by
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bankruptcy, insolvency, or similar laws affecting creditors' rights generally
and by judicial discretion in the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements. Subject to obtaining the Consents
and making any filing required under the HSR Act, the execution, delivery, and
performance by Buyer of this Agreement and the documents contemplated hereby
(with or without the giving of notice, the lapse of time, or both): (i) do not
require the consent of any third party; (ii) will not conflict with the
Certificate of Incorporation or Bylaws of Buyer; (iii) will not conflict with,
result in a breach of, or constitute a default under, any law, judgment, order,
injunction, decree, rule, regulation, or ruling of any court or governmental
instrumentality; (iv) will not conflict with, constitute grounds for termination
of, result in a breach of, constitute a default under, or accelerate or permit
the acceleration of any performance required by the terms of, any agreement,
instrument, license, or permit to which Buyer is a party or by which Buyer may
be bound, such that Buyer could not acquire the Assets or operate the Station.
4.4 Full Disclosure. No representation or warranty made by Buyer in this
Agreement or in any certificate, document, or other instrument furnished or to
be furnished by Buyer pursuant hereto contains or will knowingly contain any
untrue statement of a material fact.
4.5 Buyer Qualifications. Subject to obtaining the Consents, Buyer is
legally, financially and otherwise qualified to be the licensee of, acquire, own
and operate the Station under the Communications Act of 1934, as amended, and
the rules, regulations and policies of the FCC. Subject to obtaining the
Consents, Buyer knows of no fact that would, under existing law and the existing
rules, regulations, policies and procedures of the FCC disqualify Buyer as
assignee of the FCC Licenses or as the owner and operator of the Station.
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING
5.1 Generally. Seller agrees that, between the date of this Agreement and
the Closing Date, Seller shall operate the Station in the ordinary course of
business in accordance with its past practices (except where such conduct would
conflict with the following covenants or with Seller's other obligations under
this Agreement), and in accordance with the other covenants in this Section 5.
5.2 Contracts. Seller will not enter into any contract or commitment which
is not terminable on 90-days notice relating to the Station or the Assets, or
amend or terminate any Contract (or waive any material right thereunder), or
incur any obligation (including obligations relating to the borrowing of money
or the guaranteeing of indebtedness) that will be binding on Buyer after
Closing, except for cash time sales agreements made in the
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ordinary course of business and other contracts or commitments involving less
than $5,000. Prior to the Closing Date, Seller shall deliver to Buyer a list of
all Contracts entered into between the date of this Agreement and the Closing
Date, together with copies of such Contracts.
5.3 Disposition of Assets. Seller shall not sell, assign, lease, or
otherwise transfer or dispose of any of the material Assets, except where no
longer used or useful in the business or operations of the Station or in
connection with the acquisition of replacement property of equivalent kind and
value.
5.4 Encumbrances. Seller shall not create, assume or permit to exist any
claim, liability, mortgage, lien, pledge, condition, charge, or encumbrance of
any nature whatsoever upon the Assets, except for (i) liens which shall be
removed prior to the Closing Date, (ii) liens for current taxes not yet due and
payable, and (iii) mechanics' liens and other similar liens, which shall be
removed prior to the Closing Date either by payment or posting an appropriate
indemnity bond.
5.5 Licenses. Seller shall not cause or permit, by any act or failure to
act, any of the Licenses issued by the FCC to expire or to be revoked,
suspended, or modified, or take any action that could cause the FCC or any other
governmental authority to institute proceedings for the suspension, revocation,
or adverse modification of any of the Licenses. Seller shall not fail to
prosecute with due diligence any applications to any governmental authority in
connection with the operation of the Station.
5.6 Rights. Seller shall not knowingly waive any material right relating to
the Station or any of the Assets.
5.7 Access to Information. Seller shall give Buyer and its counsel,
accountants, engineers, and other authorized representatives reasonable access
during normal business hours to the Assets and to all other properties,
equipment, books, records, Contracts, and documents relating to the Station for
the purpose of audit and inspection and will furnish or cause to be furnished to
Buyer or its authorized representatives all material information with respect to
the affairs and business of the Station that Buyer may reasonably request
(including any operations reports produced with respect to the affairs and
business of the Station).
5.8 Insurance. Seller shall maintain substantially the same insurance
coverage provided by the existing insurance policies on the Station and the
Assets.
5.9 Consents. Seller shall use its best efforts to obtain the Consents
described in Section 8.2(c), without any material change in the terms or
conditions of any Contract or License as in effect on the date of this
Agreement. Seller shall advise Buyer of any communications it receives
concerning the Consents and of any conditions proposed,
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considered, or requested for any of the Consents. Upon Buyer's request, Seller
shall cooperate with Buyer and use its best efforts to obtain from the lessors
under each Real Property lease such estoppel certificates and consents to the
collateral assignment of the lessee's interest under each such lease as Buyer's
lenders may request.
5.10 Books and Records. Seller shall maintain its books and records
relating to the Station in accordance with past practices.
5.11 Notification. Seller shall promptly notify Buyer in writing of any
material change in any of the information contained in Seller's representations
and warranties contained in Section 3 of this Agreement.
5.12 Compliance with Laws. Seller shall comply in all material respects
with all laws, rules, and regulations applicable or relating to the ownership
and operation of the Station.
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC Consent.
(a) The assignment of the FCC Licenses in connection with the purchase
and sale of the Assets pursuant to this Agreement shall be subject to the prior
consent and approval of the FCC.
(b) Seller and Buyer shall promptly prepare an appropriate application
for the FCC Consent and shall file the application with the FCC within ten (10)
days of the execution of this Agreement. The parties shall prosecute the
application with all reasonable diligence and otherwise use their reasonable
commercial efforts to obtain a grant of the application as expeditiously as
practicable. Each party agrees to comply with any condition imposed on it by the
FCC Consent, except that no party shall be required to comply with a condition
if (1) the condition was imposed on it as the result of a circumstance the
existence of which does not constitute a breach by the party of any of its
representations, warranties, or covenants under this Agreement, and (2)
compliance with the condition would have a material adverse effect upon it.
Buyer and Seller shall oppose any requests for reconsideration or judicial
review of the FCC Consent, provided, however, that the parties shall continue to
have all rights available to them pursuant to Section 9 hereof. If the Closing
shall not have occurred for any reason within the original effective period of
the FCC Consent, and neither party shall have terminated this Agreement under
Section 9, the parties shall jointly request an extension of the effective
period of the FCC Consent. No extension of the FCC Consent shall limit the
exercise by either party of its rights under Section 9.
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6.2 Control of the Station. Prior to Closing, Buyer shall not, directly or
indirectly, control, supervise, direct, or attempt to control, supervise, or
direct, the operations of the Station; such operations, including complete
control and supervision of all of the Station programs, employees, and policies,
shall be the sole responsibility of the Seller until the Closing.
6.3 Risk of Loss. The risk of any loss, damage, impairment, confiscation,
or condemnation of any of the Assets from any cause whatsoever shall be borne by
Seller at all times prior to the Closing.
6.4 Confidentiality. Except as necessary for the consummation of the
transaction contemplated by this Agreement, including Buyer's obtaining of
financing related hereto, and except as and to the extent required by law,
including, without limitation, disclosure requirements of federal or state
securities laws and rules and regulations of securities markets, each party will
keep confidential any information obtained from the other party in connection
with the transactions contemplated by this Agreement. Except as provided in this
Paragraph each party will refrain from disclosing any such information to any
third party. If this Agreement is terminated, each party will return to the
other party all copies of all documents and other all information obtained by
the such party from the other party in connection with the transactions
contemplated by this Agreement.
6.5 Cooperation. Buyer and Seller shall cooperate fully with each other and
their respective counsel and accountants in connection with any actions required
to be taken as part of their respective obligations under this Agreement, and
Buyer and Seller shall execute such other documents as may be necessary and
desirable to the implementation and consummation of this Agreement, and
otherwise use their reasonable commercial efforts to consummate the transaction
contemplated hereby and to fulfill their obligations under this Agreement.
Notwithstanding the foregoing, neither Buyer nor Seller shall have any
obligation (i) to expend funds to obtain any of the Consents or (ii) to agree to
any material adverse change in any License or Assumed Contract to obtain a
Consent required with respect thereto; provided, however, that Seller shall be
required to expend funds, if necessary, to cure any defaults in order to obtain
Consents and either party shall be required to expend funds in respect of normal
and usual filing fees and the fees of professional advisors.
6.6 Access to Books and Records. Seller shall provide Buyer access and the
right to copy for a period of four (4) years from the Closing Date any books and
records relating to the Assets but not included in the Assets. Buyer shall
provide Seller access and the right to copy for a period of four (4) years from
the Closing Date any books and records relating to the Assets that are included
in the Assets.
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6.7 Broker. Each of Buyer and Seller represents and warrants that neither
it nor any person or entity acting on its behalf has incurred any liability for
any finders' or brokers' fees or commissions in connection with the transactions
contemplated by this Agreement.
6.8 HSR Act Filing. Seller and Buyer agree to (a) file, or cause to be
filed, with the U.S. Department of Justice ("DOJ") and Federal Trade Commission
("FTC") all filings, if any, which are required in connection with the
transactions contemplated hereby under the HSR Act within twenty days after the
execution of this Agreement; (b) cooperate with each other in connection with
such HSR Act filings; and (c) promptly file, after any request by the FTC or DOJ
and appropriate negotiation with the FTC or DOJ concerning the scope of such
request, any information or documents requested by the FTC or DOJ. Buyer shall
pay any filing fee required by the FTC under the HSR Act.
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER
AT CLOSING
7.1 Conditions to Obligations of Buyer. All obligations of Buyer at the
Closing are subject at Buyer's option to the fulfillment or waiver by Buyer
prior to or at the Closing Date of each of the following conditions:
(a) Representations and Warranties. All material representations and
warranties of Seller contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time.
(b) Covenants and Conditions. Seller shall have performed and complied
in all material respects with all material covenants, agreements, and conditions
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date.
(c) Consents. All Consents shall have been obtained and delivered to
Buyer without any material adverse change in the terms or conditions of any
agreement or any governmental license, permit, or other authorization.
(d) FCC Consent. The FCC Consent shall have been granted without the
imposition on Buyer of any material conditions that need not be complied with by
Buyer under Section 6.1 hereof, Seller shall have complied with any material
conditions imposed on it by the FCC Consent, and the FCC Consent shall have
become a Final Order.
(e) Governmental Authorizations. Seller shall be the holder of all
material Licenses and there shall not have been any modification of any material
License that could have a material adverse effect on the Station or the conduct
of its business and operations. No proceeding shall be pending the effect of
which could be to revoke, cancel, fail to renew,
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suspend, or modify adversely any material License. All FCC Licenses are material
Licenses.
(f) Deliveries. Seller shall have made or stand willing to make all the
deliveries to Buyer set forth in Section 8.2.
(g) HSR Act. The waiting period under the HSR Act shall have expired
without unresolved action by the DOJ or the FTC to prevent the Closing.
7.2 Conditions to Obligations of Seller. All obligations of Seller at the
Closing are subject at Seller's option to the fulfillment prior to or at the
Closing Date of each of the following conditions:
(a) Representations and Warranties. All material representations and
warranties of Buyer contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time.
(b) Covenants and Conditions. Buyer shall have performed and complied in
all material respects with all material covenants, agreements, and conditions
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date.
(c) Deliveries. Buyer shall have made or stand willing to make all the
deliveries set forth in Section 8.3.
(d) FCC Consent. The FCC Consent shall have been granted without the
imposition on Seller of any material conditions that need not be complied with
by Seller under Section 6.1 hereof and Buyer shall have complied with any
conditions imposed on it by the FCC Consent.
(e) HSR Act. The waiting period under the HSR Act shall have expired
without unresolved action by the DOJ or the FTC to prevent the Closing.
SECTION 8. CLOSING AND CLOSING DELIVERIES
8.1 Closing.
(a) Closing Date. The Closing shall take place at 10:00 a.m. on a date
to be set by Buyer on at least five days' written notice to Seller, that is (1)
not earlier than the first business day after the FCC Consent is granted, and
(2) not later than ten business days following the date upon which the FCC
Consent has become a Final Order. If Buyer fails to specify the date for Closing
pursuant to the preceding sentence prior to the fifth business day after the
date upon which the FCC Consent becomes a Final Order, the Closing shall take
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place on the tenth business day after the date upon which the FCC Consent
becomes a Final Order.
(b) Closing Place. The Closing shall be held at the offices of Dow,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇, or such other place that is agreed upon by Buyer and Seller.
8.2 Deliveries by Seller. Prior to or on the Closing Date, Seller shall
deliver to Buyer the following, in form and substance reasonably satisfactory to
Buyer and its counsel:
(a) Transfer Documents. Subject to the provisions of this Agreement,
duly executed bills of sale, assignments, and other transfer documents which
shall be sufficient to vest good and marketable title to the Assets in the name
of Buyer, free and clear of all mortgages, liens, restrictions, encumbrances,
claims, and obligations except for Permitted Liens.
(b) Estoppel Certificate. An Estoppel Certificate of the Lessor of the
leasehold interests listed in Schedule 3.5.
(c) Consents. An executed copy of any instrument evidencing receipt of
any Consent;
(d) Certificates. Certificates, dated as of the Closing Date, executed
by Seller certifying (1) that the material representations and warranties of
Seller contained in this Agreement are true and complete in all material
respects as of the Closing Date as though made on and as of that date; and (2)
that Seller have in all material respects performed and complied with all of its
material obligations, covenants, and agreements set forth in this Agreement to
be performed and complied with on or prior to the Closing Date and such
additional Certificates and confirmations to Buyer's lenders as Buyer may
reasonably request in connection with obtaining financing for the performance of
its payment obligations hereunder.
(e) Licenses, Contracts, Business Records, Etc. Copies of all Licenses
and Assumed Contracts.
(f) Opinions of Counsel. Opinions of Seller's counsel dated as of the
Closing Date, substantially in the form of Schedule 8.2(f) hereto.
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer shall
deliver to Seller the following, in form and substance reasonably satisfactory
to Seller and its counsel.
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(a) Purchase Price. The balance of the Purchase Price as provided in
Section 2.3.
(b) Assumption Agreements. Appropriate assumption agreements pursuant to
which Buyer shall assume and undertake to perform Seller's obligations under the
Licenses and Assumed Contracts arising on or after the Closing Date.
(c) Officer's Certificate. A certificate, dated as of the Closing Date,
executed on behalf of Buyer by its President, certifying (1) that the
representations and warranties of Buyer contained in this Agreement are true and
complete in all material respects as of the Closing Date as though made on and
as of that date, and (2) that Buyer has in all material respects performed and
complied with all of its obligations, covenants, and agreements set forth in
this Agreement to be performed and complied with on or prior to the Closing
Date.
(d) Opinion of Counsel. An opinion of Buyer's counsel dated as of the
Closing Date, substantially in the form of Schedule 8.3(d) hereto.
SECTION 9. TERMINATION
9.1 Termination by Seller. Subject to the limitations set forth in Section
9.1(d) below, this Agreement may be terminated by Seller and the purchase and
sale of the Assets abandoned, if Seller is not then in material default, upon
written notice to Buyer, upon the occurrence of any of the following:
(a) Conditions. If, on the date that would otherwise be the Closing
Date, any of the conditions precedent to the obligations of Seller set forth in
this Agreement have not been satisfied or waived in writing by Seller.
(b) Judgments. If there shall be in effect on the date that would
otherwise be the Closing Date any judgment, decree, or order, not caused by
Seller, that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred within eighteen
(18) months of the date of this Agreement.
(d) Limitation. Notwithstanding Seller's rights set forth in Section
9.1(a), (b) or (c), any attempt by Seller to terminate this Agreement shall have
no force or effect whatsoever unless:
(i) Seller shall have delivered to Buyer written notice of its
election to terminate this Agreement pursuant to Section 9.1(a), (b) or
(c); and
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(ii)Buyer shall have failed, on or before the date that is 60
days from Buyer's receipt of Seller's written termination notice, to (1)
deliver to Seller written notice of Buyer's election to either (A)
terminate this Agreement pursuant to, and subject to the terms and
conditions of Section 2(e) of that certain Option Amendment and
Cooperation Agreement dated as of March 21, 1997 (the "Option
Cooperation Agreement") or (B) extend the Closing Date hereunder
pursuant to, and subject to the terms and conditions of Section 2(e) of
the Option Cooperation Agreement and (2) pay to Seller (A) the balance
of the Purchase Price pursuant to Section 2.3 hereof, and (B) the actual
out-of-pocket costs and expenses incurred by Seller in connection with
the transactions contemplated to be consummated under the WTVX Option
Agreement and this Agreement in accordance with, and subject to the
limitations set forth in, Section 11.1 hereof and Section 4 of the
Option Cooperation Agreement (the "Reimbursable Expenses"); and
(iii) Seller shall have delivered to Buyer at least 5 business
days prior to the expiration of the 60-day period referred to in clause
(ii) of this Section 9.1(d), wire transfer instructions and
documentation, including copies of invoices or receipts, in form and
substance reasonably satisfactory to Buyer, evidencing the Reimbursable
Expenses.
9.2 Termination by Buyer. This Agreement may be terminated by Buyer and the
purchase and sale of the Station abandoned, if Buyer is not then in material
default, upon written notice to Seller, upon the occurrence of any of the
following:
(a) Conditions. If on the date that would otherwise be the Closing Date
any of the conditions precedent to the obligations of Buyer set forth in this
Agreement have not been satisfied or waived in writing by Buyer.
(b) Judgments. If there shall be in effect on the date that would
otherwise be the Closing Date any judgment, decree, or order, not caused by
Buyer, that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred within eighteen
(18) months plus fifteen days of the date of this Agreement.
9.3 Rights on Termination. If this Agreement is terminated pursuant to
Section 9.1 or Section 9.2 and neither party is in material breach of any
provision of this Agreement, the parties hereto shall not have any further
liability to each other with respect to the purchase and sale of the Assets.
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SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES
10.1 Representations and Warranties. All representations and warranties
contained in this Agreement shall be deemed continuing representations and
warranties and shall survive the closing for a period of twelve (12) months
provided, however, that as to any representation or warranty made by either the
Buyer or Seller which the other party knows, or has reason to believe, is not
true as of the Closing Date, such representation or warranty shall not survive
the Closing. Until the Closing, Buyer and Seller will immediately advise each
other, in a detailed written notice, of any fact or occurrence or any pending or
threatened occurrence of which any of them obtains knowledge and which (a) (if
existing and known at the date of the execution of this Agreement) would have
been required to be set forth or disclosed in or pursuant to this Agreement or a
Schedule hereto, (b) (if existing and known at any time prior to or at the
Closing) would make the performance by any party of a covenant contained in this
Agreement impossible or make that performance materially more difficult than in
the absence of that fact or occurrence, or (c) (if existing and known at the
time of the Closing) would cause a condition to any party's obligations under
this Agreement not to be fully satisfied.
10.2 Indemnification by Seller. Seller hereby agrees to indemnify and hold
Buyer harmless against and with respect to, and shall reimburse Buyer for:
(a) Subject to the proviso contained in the first sentence of Section
10.1, any and all losses, liabilities, or damages resulting from any untrue
representation, breach of warranty, or material omission or nonfulfillment of
any covenant by Seller contained in this Agreement or in any certificate,
document, or instrument delivered to Buyer under this Agreement.
(b) Any and all obligations of Seller not assumed by Buyer pursuant to
this Agreement, including any liabilities arising at any time under any Contract
not included in the Assumed Contracts.
(c) Any and all losses, liabilities, or damages contingent or otherwise
resulting from the operation or ownership of the Station prior to the Closing
Date, including any liabilities arising under the Licenses or the Assumed
Contracts which relate to events occurring prior to the Closing Date.
(d) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
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10.3 Indemnification by Buyer. Buyer hereby agrees to indemnify and hold
Seller harmless against and with respect to, and shall reimburse Seller for:
(a) Subject to the proviso contained in the first sentence of Section
10.1, any and all losses, liabilities, or damages resulting from any untrue
representation, breach of warranty, or material omission or nonfulfillment of
any covenant by Buyer contained in this Agreement or in any certificate,
Schedule, document, or instrument delivered to Seller under this Agreement.
(b) Any and all obligations of Seller assumed by Buyer pursuant to this
Agreement.
(c) Any and all losses, liabilities, or damages contingent or otherwise,
resulting from the operation or ownership of the Station on and after the
Closing.
(d) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
10.4 Procedure for Indemnification. The procedure for indemnification shall
be as follows:
(a) The party claiming indemnification (the "Claimant") shall promptly
give notice to the party from which indemnification is claimed (the
"Indemnifying Party") of any claim, whether between the parties or brought by a
third party, specifying in reasonable detail the factual basis for the claim. If
the claim relates to an action, suit, or proceeding filed by a third party
against Claimant, such notice shall be given by Claimant within as soon as
practicable after written notice of such action, suit, or proceeding was given
to Claimant.
(b) With respect to claims solely between the parties, following receipt
of notice from the Claimant of a claim, the Indemnifying Party shall have thirty
days to make such investigation of the claim as the Indemnifying Party deems
necessary or desirable. For the purposes of such investigation, the Claimant
agrees to make available to the Indemnifying Party and/or its authorized
representatives the information relied upon by the Claimant to substantiate the
claim. If the Claimant and the Indemnifying Party agree at or prior to the
expiration of the thirty-day period (or any mutually agreed upon extension
thereof) to the validity and amount of such claim, the Indemnifying Party shall
immediately pay to the Claimant the full amount of the claim. If the Claimant
and the Indemnifying Party do not agree within the thirty-day period (or any
mutually agreed upon extension thereof), the Claimant may seek appropriate
remedy at law or equity or under the arbitration provisions of this Agreement,
as applicable.
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(c) With respect to any claim by a third party as to which the Claimant
is entitled to indemnification under this Agreement, the Indemnifying Party
shall have the right at its own expense, to participate in or assume control of
the defense of such claim, and the Claimant shall cooperate fully with the
Indemnifying Party subject to reimbursement for reasonable actual out-of-pocket
expenses incurred by the Claimant as the result of a request by the Indemnifying
Party. If the Indemnifying Party elects to assume control of the defense of any
third-party claim, the Claimant shall have the right to participate in the
defense of such claim at its own expense. If the Indemnifying Party does not
elect to assume control or otherwise participate int he defense of any third
party claim, it shall be bound by the results obtained by the Claimant with
respect to such claim.
(d) If a claim, whether between the parties or by a third party,
requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
(e) The indemnification rights provided in Sections 10.2 and 10.3 shall
extend to the shareholders, directors, officers, employees, and representatives
of any Claimant although for the purpose of the procedures set forth in this
Section 10.4, any indemnification claims by such parties shall be made by and
through the Claimant.
(f) Notwithstanding anything in this Agreement to the contrary, neither
party shall indemnify or otherwise be liable to the other party for any breach
of a representation or warranty, or for breach of any covenant in this Agreement
except to the extent the losses, obligations, liabilities, costs and expenses of
such party arising therefrom exceed in the aggregate Ten Thousand Dollars
($10,000). The provisions of the foregoing sentence shall not apply to
liabilities assumed by either party pursuant to the adjustments and prorations.
10.5 Specific Performance. The parties recognize that if Seller breaches
this Agreement and refuses to perform under the provisions of this Agreement,
monetary damages alone would not be adequate to compensate Buyer for its injury.
Buyer shall therefore be entitled, as its sole and exclusive remedy, to obtain
specific performance of the terms of this Agreement. If any action is brought by
Buyer to enforce this Agreement, Seller shall waive the defense that there is an
adequate remedy at law.
10.6 Attorneys' Fees. In the event of a default by either party which
results in a lawsuit or other proceeding for any remedy available under this
Agreement, the prevailing party shall be entitled to reimbursement from the
other party of its reasonable legal fees and expenses.
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SECTION 11. MISCELLANEOUS
11.1 Fees and Expenses. Buyer hereby agrees to reimburse Seller for its
professional fees and its other actual and, with respect to discretionary costs
and expenses only, pre-approved out-of-pocket costs and expenses, incurred in
connection with the transactions contemplated to be consummated under this
Agreement; provided, however, that the aggregate amount of expenses reimbursable
pursuant to this Section 11.1 of this Agreement with respect to the
out-of-pocket costs and expenses of Seller in respect of legal and accounting
services shall be subject to the limitation set forth in the proviso in Section
4.a of the Option Cooperation Agreement. Except as provided above, each party
shall pay its own expenses incurred in connection with the authorization,
preparation, execution, and performance of this Agreement, including all fees
and expenses of counsel, accountants, agents, and representatives, and each
party shall be responsible for all fees or commissions payable to any finder,
broker, advisor, or similar person retained by or on behalf of such party.
11.2 Arbitration. Except as otherwise provided to the contrary below, any
dispute arising out of or related to this Agreement that Seller and Buyer are
unable to resolve by themselves shall be settled by arbitration in the District
of Columbia by a panel of three arbitrators. Seller and Buyer shall each
designate one disinterested arbitrator, and the two arbitrators so designated
shall select the third arbitrator. Before undertaking to resolve the dispute,
each arbitrator shall be duly sworn faithfully and fairly to hear and examine
the matters in controversy and to make a just award according to the best of his
or her understanding. The arbitration hearing shall be conducted in accordance
with the commercial arbitration rules of the American Arbitration Association.
The written decision of a majority of the arbitrators shall be final and binding
on Seller and Buyer. The costs and expenses of the arbitration proceeding shall
be assessed between Seller and Buyer in a manner to be decided by a majority of
the arbitrators, and the assessment shall be set forth in the decision and award
of the arbitrators. Judgment on the award, if it is not paid within thirty days,
may be entered in any court having jurisdiction over the matter. No action at
law or suit in equity based upon any claim arising out of or related to this
Agreement shall be instituted in any court by Seller or Buyer against the other
except (i) an action to compel arbitration pursuant to this Section, (ii) an
action to enforce the award of the arbitration panel rendered in accordance with
this Section, or (iii) a suit for specific performance pursuant to Section 10.5.
11.3 Notices. All notices, demands, and requests required or permitted to
be given under the provisions of this Agreement shall be (a) in writing, (b)
sent by telecopy (with receipt personally confirmed by telephone), delivered by
personal delivery, or sent by
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commercial delivery service or registered or certified mail, return receipt
requested, (c) deemed to have been given on the date of personal delivery or the
date set forth in the records of the delivery service or on the return receipt,
and (d) addressed as follows:
If to Seller: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Media of Florida, Inc.
▇▇▇▇▇▇▇▇▇ Broadcasting of Florida, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ Communications of Ft. ▇▇▇▇▇▇-34, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
or to any other or additional persons and addresses as the parties may from time
to time designate in a writing delivered in accordance with this Section 11.3.
11.4 Benefit and Binding Effect. Neither party hereto may assign this
Agreement without the prior written consent of the other party hereto; provided,
however, that Buyer may assign its rights and obligations under this Agreement
to a wholly-owned subsidiary or commonly controlled affiliate without seeking or
obtaining Seller's prior approval, provided that such assignment does not
relieve Buyer of its responsibilities hereunder. Upon any permitted assignment
by Buyer or Seller in accordance with this Section 11.4, all references to
"Buyer" herein shall be deemed to be references to Buyer's assignee and all
references to "Seller" herein shall be deemed to be references to Seller's
assignee. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
11.5 Further Assurances. The parties shall take any actions and execute any
other documents that may be necessary or desirable to the implementation and
consummation of this Agreement, including, in the case of Seller, any additional
bills of sale, deeds, or other transfer documents that, including, in the case
of Seller, any additional bills of sale, deeds, or other transfer documents
that, in the reasonable opinion of Buyer, may be necessary to ensure, complete,
and evidence the full and effective transfer of the Assets to Buyer pursuant to
this Agreement.
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11.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED, AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT REGARD TO
THE CHOICE OF LAW PROVISIONS THEREOF).
11.7 Headings. The headings in this Agreement are included for ease of
reference only and shall not control or affect the meaning or construction of
the provisions of this Agreement.
11.8 Gender and Number. Words used in this Agreement, regardless of the
gender and number specifically used, shall be deemed and construed to include
any other gender, masculine, feminine, or neuter, and any other number, singular
or plural, as the context requires.
11.9 Entire Agreement. This Agreement, the schedules, hereto, and all
documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between Buyer and Seller with respect to the subject matter hereof. This
Agreement supersedes all prior negotiations between the parties and cannot be
amended, supplemented, or changed except by an agreement in writing that makes
specific reference to this Agreement and which is signed by the party against
which enforcement of any such amendment, supplement, or modification is sought.
11.10 Waiver of Compliance; Consents. Except as otherwise provided in this
Agreement, any failure of any of the parties to comply with any obligation,
representation, warranty, covenant, agreement, or condition herein may be waived
by the party entitled to the benefits thereof only by a written instrument
signed by the party granting such waiver, but such waiver or failure to insist
upon strict compliance with such obligation, representation, warranty, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires or
permits consent by or on behalf of any party hereto, such consent shall be given
in writing in a manner consistent with the requirements for a waiver of
compliance as set forth in this Section 11.10.
11.11 Counterparts. This Agreement may be signed in counterparts with the
same effect as if the signature on each counterpart were upon the same
instrument.
11.12 Press Releases. Neither party shall publish any press release, make
any other public announcement or otherwise communicate with any news media
concerning this Agreement or the transactions contemplated hereby without the
prior written consent of the
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other party; provided, however, that nothing contained herein shall prevent
either party from promptly making all filings with governmental authorities as
may, in its judgment, be required or advisable in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby, in which case the other party shall be first notified in
writing.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
▇▇▇▇▇▇ COMMUNICATIONS OF
FT. ▇▇▇▇▇▇-34, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: Chairman
--------------------------------------
▇▇▇▇▇▇▇▇▇ MEDIA OF FLORIDA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: President
--------------------------------------
▇▇▇▇▇▇▇▇▇ BROADCASTING OF FLORIDA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: President
--------------------------------------
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