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EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
BY AND AMONG
▇▇▇▇▇ TELEVISION OF MICHIGAN, L.P.,
▇▇▇▇▇ TELEVISION OF MICHIGAN LICENSE, L.P.,
▇▇▇▇▇ TELEVISION OF ROCHESTER, L.P.,
▇▇▇▇▇ TELEVISION OF ROCHESTER LICENSE, L.P.,
▇▇▇▇▇ TELEVISION OF SALINAS-MONTEREY, L.P.,
AND
▇▇▇▇▇ TELEVISION OF SALINAS-MONTEREY LICENSE, L.P.
AS SELLERS
AND
STV ACQUISITION COMPANY
AS BUYER
DATED AS OF NOVEMBER 4, 1996
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TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND REFERENCES .................... 2
ARTICLE 2 SALE AND PURCHASE OF ASSETS; ESCROW DEPOSIT; 2
PURCHASE PRICE; AMOUNTS; ASSUMPTION OF LIABILITIES
2.1. Asset Sale and Purchase of Assets. ................ 2
2.1.1. FCC Licenses. .............................. 2
2.1.2. Real and Leased Property Interests. ........ 3
2.1.3. Tangible Personal Property. ................ 3
2.1.4. Intellectual Property. ..................... 3
2.1.5. Program Contracts. ......................... 3
2.1.6. Trade-out Agreements. ...................... 4
2.1.7. Broadcast Time Sales Agreement. ............ 4
2.1.8. Operating Contracts. ....................... 4
2.1.9. Prepaid Items. ............................. 4
2.1.10. Vehicles. ................................. 4
2.1.11. Files and Records. ........................ 4
2.1.12. Auxiliary Facilities. ..................... 5
2.1.13. Permits and Licenses. ..................... 5
2.1.14. Accounts Receivable. ...................... 5
2.1.15. Goodwill. ................................. 5
2.2. Excluded Assets. .................................. 5
2.2.1. Cash. ...................................... 5
2.2.2. Personal Property Disposed Of. ............. 5
2.2.3. Insurance. ................................. 5
2.2.4. Employee Plans and Assets. ................. 6
2.2.5. Right to Tax Refunds. ...................... 6
2.2.6. Certain Books and Records. ................. 6
2.2.7. Third-Party Claims. ........................ 6
2.2.8. Rights Under this Agreement. ............... 6
2.2.9. Interests in Licensees. .................... 7
2.2.10. Name. ..................................... 7
2.2.11. Excluded Contracts and Unrelated Assets. .. 7
2.3. Escrow Deposit. ................................... 7
2.4. Purchase Price. ................................... 7
2.5. Payment of Purchase Price. ........................ 8
2.6. Net Working Capital Amount. ....................... 8
2.7. Allocation of Purchase Price. ..................... 10
2.8. Assumption of Liabilities. ........................ 10
ARTICLE 3. REPRESENTATIONS AND WARRANTIES BY SELLER ...... 11
3.1. Organization and Standing. ........................ 11
3.2. Authorization. .................................... 11
3.3. Compliance with Laws. ............................. 11
3.4. Consents and Approvals; No Conflicts. ............. 12
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TABLE OF CONTENTS (continued)
Page
3.5. Financial Statements; Undisclosed Liabilities. ... 12
3.6. Absence of Certain Changes or Events. ............ 13
3.7. Absence of Litigation. ........................... 13
3.8. Assets. .......................................... 14
3.9. FCC Matters. ..................................... 14
3.10. Real Property. .................................. 14
3.11. Condition of Tangible Assets. ................... 15
3.12. Intellectual Property. .......................... 15
3.13. Reports and Records. ............................ 16
3.14. Station Contracts. .............................. 16
3.15. Taxes. .......................................... 16
3.16. Employee Benefit Plans. ......................... 17
3.17. Labor Relations. ................................ 18
3.18. Environmental Matters. .......................... 19
3.19. Transactions With Affiliates .................... 19
3.20. Insurance. ...................................... 20
3.21. Interpretation of Certain Provisions. ........... 20
ARTICLE 4. REPRESENTATIONS AND WARRANTIES BY BUYER ...... 20
4.1. Organization and Standing. ....................... 20
4.2. Authorization. ................................... 20
4.3. Compliance with Laws. ............................ 21
4.4. Consents and Approvals; No Conflicts. ............ 21
4.5. Availability of Funds. ........................... 21
4.6. Qualification of Buyer. .......................... 22
4.7. No Outside Reliance. ............................. 22
4.8. Interpretation of Certain Provisions. ............ 22
ARTICLE 5. PRE-CLOSING FILINGS .......................... 23
5.1. Applications for FCC Consent. .................... 23
5.2. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. ............................... 23
ARTICLE 6. COVENANTS AND AGREEMENTS OF SELLER ........... 23
6.1. Negative Covenants. .............................. 23
6.1.1. Dispositions; Mergers. .................... 23
6.1.2. Accounting Principles and Practices. ...... 24
6.1.3. Trade-out Agreements. ..................... 24
6.1.4. Broadcast Time Sales Agreements. .......... 24
6.1.5. Network Affiliation Agreements and Local
Marketing Arrangements..................... 24
6.1.6. Additional Agreements. .................... 24
6.1.7. Breaches. ................................. 24
6.1.8. Employee Matters. ......................... 24
6.1.9. Actions Affecting FCC Licenses. ........... 25
6.1.10. Programming. ............................. 25
6.1.11. Affiliated Transactions. ................. 25
6.2. Affirmative Covenants. ........................... 25
6.2.1. Preserve Existence. ....................... 25
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TABLE OF CONTENTS (continued)
Page
6.2.2. Normal Operations. ........................ 25
6.2.3. Maintain FCC Licenses. .................... 26
6.2.4. Network Affiliation. ...................... 26
6.2.5. Station Contracts. ........................ 26
6.2.6. Taxes. .................................... 26
6.2.7. Partnership Action. ....................... 26
6.2.8. Access. ................................... 26
6.2.9. Insurance. ................................ 27
6.2.10. Financial Statements. .................... 27
6.3. Consents. ........................................ 27
6.4. Confidentiality. ................................. 27
ARTICLE 7. COVENANTS AND AGREEMENTS OF BUYER ............ 28
7.1. Confidentiality. ................................. 28
7.2. Corporate Action. ................................ 29
7.3. Access. .......................................... 29
ARTICLE 8. MUTUAL COVENANTS AND UNDERSTANDINGS
OF SELLER AND BUYER .......................... 30
8.1. Possession and Control. .......................... 30
8.2. Risk of Loss. .................................... 30
8.3. Public Announcements. ............................ 31
8.4. Employee Matters. ................................ 31
8.4.1. Transferred Employees. .................... 31
8.4.2 Vacation and Sick Leave. ................... 32
8.4.3 Severance Benefits. ........................ 32
8.4.4 Represented Employees. ..................... 32
8.4.5. COBRA Obligations. ........................ 33
8.4.6. Seller Benefits Plans. .................... 34
8.4.7. 401(k) Plans. ............................. 34
8.4.8. Employment Contracts. ..................... 34
8.5. Allocation of Purchase Price. .................... 34
8.6. Disclosure Schedules. ............................ 35
8.7. Bulk Sales Laws. ................................. 35
ARTICLE 9. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO
CLOSE 35
9.1. Representations and Covenants. ................... 35
9.2. Required Consents. ............................... 36
9.3. Delivery of Documents. ........................... 36
9.4. FCC Order. ....................................... 36
9.5. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. ............................... 36
9.6 Legal Proceedings. ............................... 36
9.7 WTOV Purchase Agreement. ......................... 36
ARTICLE 10. CONDITIONS PRECEDENT TO SELLERS'
OBLIGATION TO CLOSE.................................... 37
10.1. Representations and Covenants. .................. 37
10.2. Delivery by Buyer. .............................. 37
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TABLE OF CONTENTS (continued)
Page
10.3. FCC Order. ...................................... 37
10.4. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. .............................. 37
10.5. Legal Proceedings. .............................. 37
10.6. WTOV Purchase Agreement. ........................ 38
ARTICLE 11. THE CLOSING ................................. 38
11.1. Closing. ........................................ 38
11.2. Delivery by Seller. ............................. 38
11.2.1. Agreements and Instruments ............... 38
11.2.2. Consents. ................................ 39
11.2.3. Certified Resolutions. ................... 39
11.2.4. Officers' Certificates. .................. 39
11.2.5. Organizational Documents. ................ 39
11.2.6. Deposit .................................. 39
11.3. Delivery by Buyer. .............................. 39
11.3.1. Purchase Price Payment. .................. 39
11.3.2. Agreements and Instruments. .............. 39
11.3.3. Certified Resolutions. ................... 40
11.3.4. Officers' Certificate. ................... 40
ARTICLE 12. SURVIVAL; INDEMNIFICATION ................... 40
12.1. Survival of Representations. .................... 40
12.2. Indemnification by Sellers. ..................... 41
12.3. Indemnification by Buyer. ....................... 41
12.4. Limitations on Indemnification .................. 42
12.5. Conditions of Indemnification. .................. 43
12.6. Cure of Breach .................................. 44
ARTICLE 13. TERMINATION ................................. 45
13.1. Termination ..................................... 45
13.2. Effect of Termination ........................... 46
ARTICLE 14. REMEDIES .................................... 47
14.1. Default by Buyer. ............................... 47
14.2. Final Order Delay by Buyer. ..................... 47
14.3. Default by Seller. .............................. 47
14.4. Liquidated Damages. ............................. 48
14.5. Specific Performance. ........................... 48
ARTICLE 15. GENERAL PROVISIONS .......................... 48
15.1. Additional Actions, Documents and Information. .. 48
15.2. Brokers. ........................................ 49
15.3. Expenses and Taxes. ............................. 49
15.4. Notices. ........................................ 49
15.5. Waiver. ......................................... 51
15.6. Benefit and Assignment. ......................... 51
15.7. Entire Agreement; Amendment. .................... 53
15.8. Severability. ................................... 53
15.9. Headings. ....................................... 53
15.10. Governing Law; Jurisdiction. ................... 53
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TABLE OF CONTENTS (continued)
Page
15.11. Signature in Counterparts. ..................... 54
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SCHEDULES
Schedule 2.1.1 FCC Licenses
Schedule 2.1.2 Real Property Interests
Schedule 2.1.3 Tangible Personal Property
Schedule 2.1.4 Intellectual Property
Schedule 2.1.5 Program Contracts
Schedule 2.1.6 Trade-out Agreements
Schedule 2.1.8 Operating Contracts
Schedule 2.1.9 Deposits; Prepaid Expenses
Schedule 2.1.10 Vehicles
Schedule 2.2.11 Excluded Contracts and Unrelated Assets
Schedule 2.6.2 Pro Forma Calculation of Net Working Capital Amount
Schedule 3.4.1 Consents
Schedule 3.6 Absence of Certain Changes or Events
Schedule 3.7 Litigation
Schedule 3.8 Encumbrances on Assets
Schedule 3.9 FCC Matters
Schedule 3.10 Encumbrances on Real Property and Leasehold Interests
Schedule 3.11 Condition of Tangible Assets
Schedule 3.12.1 Consents for Intellectual Property Transfer
Schedule 3.16 Employee Benefit Plans
Schedule 3.17.1 Collective Bargaining Agreements
Schedule 3.18 Environmental Matters
Schedule 3.19 Transactions with Affiliates
Schedule 3.20 Insurance
Schedule 6.1.8 Employee Matters
Schedule 9.2 Required Consents and Approvals
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EXHIBITS
EXHIBIT A Form of Deposit Escrow Agreement
EXHIBIT B Form of Indemnity Escrow Agreement
EXHIBIT D Form of ▇▇▇▇ of Sale and Assignment of Assets
EXHIBIT D Form of Assignment of FCC Licenses
EXHIBIT E Form of Assignment of Contracts and Leases
EXHIBIT F Form of Assumption Agreement
EXHIBIT G Forms of Special or Limited Warranty Deeds
EXHIBIT H Form of Transfer Tax Documents
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EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered into as of this
4th day of November, 1996 by and among ▇▇▇▇▇ TELEVISION OF MICHIGAN, L.P., a
Delaware limited partnership ("▇▇▇▇▇ Michigan"), ▇▇▇▇▇ TELEVISION OF MICHIGAN
LICENSE, L.P., a Delaware limited partnership ("Michigan Licensee"), ▇▇▇▇▇
TELEVISION OF ROCHESTER, L.P., a Delaware limited partnership ("▇▇▇▇▇
Rochester"), ▇▇▇▇▇ TELEVISION OF ROCHESTER LICENSE, L.P., a Delaware limited
partnership ("Rochester Licensee"), ▇▇▇▇▇ TELEVISION OF SALINAS-MONTEREY, L.P.,
a Delaware limited partnership ("▇▇▇▇▇ Salinas-Monterey"), and ▇▇▇▇▇ TELEVISION
OF SALINAS-MONTEREY LICENSE, L.P., a Delaware limited partnership
("Salinas-Monterey Licensee") (each of the foregoing entities shall be referred
to herein individually as a "Seller" and collectively as the "Sellers") and STV
ACQUISITION COMPANY, a Delaware corporation ("Buyer").
WHEREAS, Michigan Licensee is the licensee of television broadcast station
WEYI, Channel 25, Saginaw, Michigan ("WEYI") pursuant to certain authorizations
issued by the FCC and ▇▇▇▇▇ Michigan operates WEYI and owns or leases certain
assets used in connection with the operation of WEYI;
WHEREAS, Rochester Licensee is the licensee of television broadcast
station WROC-TV, Channel 8, Rochester, New York ("WROC") pursuant to certain
authorizations issued by the FCC and ▇▇▇▇▇ Rochester operates WROC and owns and
leases certain assets used in connection with the operation of WROC;
WHEREAS, Salinas-Monterey Licensee is the licensee of television broadcast
station KSBW, Channel 8, Salinas, California ("KSBW") pursuant to certain
authorizations issued by the FCC and ▇▇▇▇▇ Salinas-Monterey operates KSBW and
owns or leases certain assets used in connection with the operation of KSBW;
WHEREAS, ▇▇▇▇▇ Michigan, Michigan Licensee, ▇▇▇▇▇ Rochester, Rochester
Licensee, ▇▇▇▇▇ Salinas-Monterey, and Salinas-Monterey Licensee desire to sell,
assign and transfer the FCC authorizations for WEYI, WROC, and KSBW
(individually, a "Station" and collectively, the "Stations"), the Stations and
the assets and businesses of the Stations as described below, and Buyer desires
to acquire the Stations, the FCC authorizations for the Stations, and the
assets and businesses of the Stations as described below, all on the terms
described in this Agreement.
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NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
ARTICLE 1.
DEFINITIONS AND REFERENCES
Capitalized terms used herein without definition shall have the
respective meanings assigned thereto in Annex I attached hereto and
incorporated herein for all purposes of this Agreement (such definitions to be
equally applicable to both the singular and plural forms of the terms defined).
Unless otherwise specified, all references herein to "Articles" or "Sections"
are to Articles or Sections of this Agreement.
ARTICLE 2
SALE AND PURCHASE OF ASSETS; ESCROW DEPOSIT;
PURCHASE PRICE; AMOUNTS; ASSUMPTION OF LIABILITIES
2.1. ASSET SALE AND PURCHASE OF ASSETS.
Subject to the terms and conditions hereof and in reliance upon the
representations, warranties and agreements contained herein, upon the Closing,
each Seller shall sell, assign, transfer, convey and deliver to Buyer, and
Buyer shall purchase, acquire, pay for and accept from each Seller, all of each
Seller's right, title and interest in, to and under all real, personal and
mixed assets, rights, benefits and privileges, both tangible and intangible,
wheresoever located, owned, leased or used by each Seller in connection with
the business and operations of the Stations (collectively, the "Assets"); but
excluding the Excluded Assets described in Section 2.2.
The Assets shall include, without limitation, all of each Seller's
right, title and interest in, to and under the following:
2.1.1. FCC LICENSES.
All licenses, permits and other authorizations issued by the
FCC to any Seller for the operation of the Stations (the "FCC Licenses"),
including without limitation those listed in Schedule 2.1.1, and all
applications therefor, together with any renewals, extensions or modifications
thereof and additions thereto.
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2.1.2. REAL AND LEASED PROPERTY INTERESTS.
(a) All the real property owned by any Seller including,
without limitation, all land, fee interests, easements and other interests of
every kind and description in real property, buildings, structures, fixtures,
appurtenances, towers and antennae, and other improvements thereon owned by any
Seller ("Real Property"), all of which are listed or described in Schedule
2.1.2.
(b) All the real property leasehold interests of any Seller
including, without limitation, leases and subleases of any land, easements and
other real property leasehold interests of every kind and description in real
property, buildings, structures, fixtures, appurtenances, towers and antennae,
and other improvements thereon leased by any Seller in connection with the
business and operations of the Stations ("Leased Property"), all of which are
listed or described in Schedule 2.1.2.
2.1.3. TANGIBLE PERSONAL PROPERTY.
All of the furniture, fixtures, furnishings, machinery,
computers, equipment, inventory, spare parts, supplies, office materials and
other tangible property of every kind and description maintained, owned, leased
or used by any Seller in connection with the business and operations of the
Stations, together with any replacements thereof and additions thereto made
before the Closing, and less any retirements or dispositions thereof made
before the Closing in the Ordinary Course of Business, including, without
limitation, those items which have a book value in excess of $10,000 and which
are set forth and identified in Schedule 2.1.3.
2.1.4. INTELLECTUAL PROPERTY.
All of the service marks, copyrights, franchises, trademarks, trade
names, jingles, slogans, logotypes and other intangible assets maintained,
owned or used by any Seller in connection with the business and operations of
the Stations (including any and all applications, registrations, extensions and
renewals relating thereto) (the "Intellectual Property"), and all of the
rights, benefits and privileges associated therewith including, without
limitation, those set forth and identified in Schedule 2.1.4 and the right to
use the call letters for the Stations and the right to ▇▇▇ for past
infringement of Intellectual Property to the extent necessary to enforce
Buyer's rights to such Intellectual Property.
2.1.5. PROGRAM CONTRACTS.
The program licenses and contracts under which any Seller is
authorized to broadcast programs on the Stations, all of which are listed on
Schedule 2.1.5, including without limitation, (a) all program (cash and
non-cash) licenses and contracts, and (b) any other such program contracts that
are entered
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into between the date of this Agreement and the Closing Date in accordance with
the terms of this Agreement (collectively the "Program Contracts").
2.1.6. TRADE-OUT AGREEMENTS.
All contracts and agreements (excluding Program Contracts)
pursuant to which any Seller has sold, traded or bartered commercial air time
on the Stations in consideration for any property or services in lieu of or in
addition to cash, which are set forth and described in Schedule 2.1.6
(collectively, the "Trade-out Agreements").
2.1.7. BROADCAST TIME SALES AGREEMENT.
All contracts and agreements pursuant to which any Seller
has sold commercial air time on the Stations for cash (collectively the "Time
Sales Agreements").
2.1.8. OPERATING CONTRACTS.
The other contracts and agreements listed on Schedule 2.1.8
(including, without limitation, employment agreements and talent contracts,
collective bargaining agreements, network affiliation agreements and national
and local advertising representation agreements for the Stations), together
with all contracts and agreements that will be entered into between the date of
this Agreement and the Closing Date in accordance with the terms of this
Agreement (collectively, the "Operating Contracts" and together with the
Program Contracts, and the Trade-out Agreements and the Time Sales Agreements,
the "Station Contracts").
2.1.9. PREPAID ITEMS.
All deposits and prepaid expenses of the Stations, including,
without limitation, those set forth and described in Schedule 2.1.9.
2.1.10. VEHICLES.
All automotive equipment and motor vehicles maintained,
owned, leased or otherwise used by any Seller in connection with the business
and operations of the Stations, including, without limitation, those set forth
and described in Schedule 2.1.10.
2.1.11. FILES AND RECORDS.
All engineering, business and other books, papers, logs,
files and records pertaining to the business and operations of the Stations, but
not the organizational documents and records or other partnership records of any
Seller.
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2.1.12. AUXILIARY FACILITIES.
All translators, earth stations, and other auxiliary
facilities, and all applications therefor owned, leased or otherwise used by
any Seller in connection with the business and operations of the Stations.
2.1.13. PERMITS AND LICENSES.
All permits, approvals, orders, authorizations, consents,
licenses, certificates, franchises, exemptions of, or filings or registrations
with, any court or Governmental Authority (other than the FCC) in any
jurisdiction, which have been issued or granted to or are owned or used by any
Seller in connection with the business and operations of the Stations and all
pending applications therefor.
2.1.14. ACCOUNTS RECEIVABLE.
All Accounts Receivable arising out of the business and
operations of the Stations.
2.1.15. GOODWILL.
The business of the Stations as a "going concern," customer
relationships and goodwill.
2.2. EXCLUDED ASSETS.
Notwithstanding anything to the contrary in this Agreement, there
shall be excluded from the Assets and retained by Sellers, to the extent in
existence as of the Closing Date, the following assets (collectively, the
"Excluded Assets"):
2.2.1. CASH.
All cash and cash equivalents held by any Seller, all
interest payable in connection with any such cash, cash equivalents or short
term investments, bank balances and rights in and to bank accounts, marketable
and other securities of any Seller.
2.2.2. PERSONAL PROPERTY DISPOSED OF.
All tangible personal property disposed of or consumed in the
Ordinary Course of Business as permitted by this Agreement.
2.2.3. INSURANCE.
All contracts of insurance and all insurance plans and the
assets thereof; provided, however, in the event of any loss or damage by fire or
other
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casualty or other cause occurring prior to the Closing Date, insurance proceeds
received by any Seller with respect to such loss or damage shall belong to and
be paid over to the Buyer to the extent that such proceeds have not been used
to restore, replace or repair such damaged Assets, provided, further, upon the
receipt by Buyer of such insurance proceeds , Sellers shall have no further
liability to Buyer to the extent of the insurance proceeds received by Buyer
for any such loss or damage (pursuant to the indemnification provisions of this
Agreement or otherwise).
2.2.4. EMPLOYEE PLANS AND ASSETS.
All Plans, Benefit Arrangements, Qualified Plans and Welfare
Plans and the assets thereof.
2.2.5. RIGHT TO TAX REFUNDS.
Any and all claims of any Seller with respect to any Tax
refunds.
2.2.6. CERTAIN BOOKS AND RECORDS.
All of each (a) Seller's organizational documents and other
partnership records, and originals of account books of original entry, (b)
duplicated copies of any books, records, accounts, checks, payment records, Tax
records (including payroll, unemployment, real estate and other Tax records) and
other similar books, records and information of any Seller relating to such
Seller's operation of the business of the Stations prior to the Closing, (c) all
records prepared by or on behalf of Sellers in connection with the sale of the
Stations, and (d) all records and documents relating to any Excluded Assets.
2.2.7. THIRD-PARTY CLAIMS.
All rights and claims of any Seller whether mature,
contingent or otherwise, against third parties relating to the business and
operations of the Stations during the period prior to the Closing, whether in
tort, contract, or otherwise, except for rights and claims relating to past
infringement of Intellectual Property to the extent necessary to enforce Buyer's
rights to such Intellectual Property.
2.2.8. RIGHTS UNDER THIS AGREEMENT.
All of each Seller's rights under or pursuant to this
Agreement or any other rights in favor of Sellers pursuant to the other
agreements contemplated hereby.
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2.2.9. INTERESTS IN LICENSEES.
All of the following general partnership interests: (a) the
general partnership interest of ▇▇▇▇▇ Michigan in Michigan Licensee, (b) the
general partnership interest of ▇▇▇▇▇ Rochester in Rochester Licensee, and (c)
the general partnership interest of ▇▇▇▇▇ Salinas-Monterey in Salinas-Monterey
Licensee.
2.2.10. NAME.
All rights to the name "▇▇▇▇▇ Television," "▇▇▇▇▇
Broadcasting" or "Jupiter/▇▇▇▇▇" or any logo or variation thereof and the
goodwill associated therewith.
2.2.11. EXCLUDED CONTRACTS AND UNRELATED ASSETS.
The contracts, agreements and any other assets listed on
Schedule 2.2.11.
2.3. ESCROW DEPOSIT.
For and in partial consideration of the execution and delivery of
this Agreement, simultaneously with the execution and delivery of this Agreement
and the WTOV Purchase Agreement, Buyer and the WTOV Buyer are jointly depositing
in escrow with the Deposit Escrow Agent an original, irrevocable letter of
credit (the "Letter of Credit") issued for the joint benefit of Sellers and the
WTOV Seller by Chase Manhattan Bank, N.A. for an amount equal to Seven Million
Eight Hundred Fifty Thousand Dollars ($7,850,000), such Letter of Credit to be
held as an ▇▇▇▇▇▇▇ money deposit (the "Deposit"), in accordance with the terms
and conditions of the Deposit Escrow Agreement.
2.4. PURCHASE PRICE.
For and in consideration of the conveyances and assignments described
herein and in addition to the assumption of Liabilities as set forth in Section
2.8, Buyer agrees to pay to Sellers, and Sellers agree to accept from Buyer, an
amount equal to ONE HUNDRED TWENTY-EIGHT MILLION FIVE HUNDRED THOUSAND DOLLARS
($128,500,000) (the "Base Purchase Price"), plus or minus (as the case may be)
the Net Working Capital Amount as provided for in Section 2.6 (collectively,
the "Purchase Price"). The Purchase Price shall be payable as described in
Section 2.5. The Purchase Price shall be allocated among the Assets in
accordance with Section 8.5.
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2.5. PAYMENT OF PURCHASE PRICE.
The Purchase Price shall be payable to Sellers at the Closing as
follows:
2.5.1. Buyer shall deliver an amount equal to One Million Five
Hundred Thousand Dollars ($1,500,000) (the "Three-Station Indemnity Escrow
Amount") to the Indemnity Escrow Agent by wire transfer of immediately
available federal funds to an account identified in writing by the Indemnity
Escrow Agent. The Three-Station Indemnity Escrow Amount, together with the
WTOV Indemnity Escrow Amount delivered pursuant to the WTOV Purchase Agreement
(collectively, the "Indemnity Escrow Amount") shall be held by the Indemnity
Escrow Agent in accordance with the terms and conditions of the Indemnity
Escrow Agreement. After the Closing Date, in the event that Buyer has any
Losses pursuant to Section 12 hereof, such Losses shall be paid from the
Indemnity Escrow Amount. On the date that is one year after the Closing Date,
the Indemnity Escrow Agent shall deliver to Sellers and the WTOV Seller any
remaining Indemnity Escrow Amount (to the extent not subject to any pending
claims) pursuant to the terms of the Indemnity Escrow Agreement.
2.5.2. Buyer shall deliver the balance of the Purchase Price by wire
transfer of immediately available federal funds to an account which will be
identified by Sellers not less than two (2) days prior to the Closing Date.
2.6. NET WORKING CAPITAL AMOUNT.
2.6.1. ESTIMATED NET WORKING CAPITAL AMOUNT. At least three (3) days
prior to the Closing Date, Sellers shall deliver to Buyer in writing and in
reasonable detail a good faith estimate of the Net Working Capital (the
"Estimated Net Working Capital") as of the Closing Date. The Purchase Price
shall be (a) increased by the amount, if any, by which the Estimated Net
Working Capital exceeds zero dollars ($0), or (b) decreased by the amount, if
any, by which the Estimated Net Working Capital is less than zero dollars ($0)
(such increase or decrease, as the case may be, is referred to herein as the
"Estimated Net Working Capital Amount").
2.6.2. FINAL NET WORKING CAPITAL AMOUNT. Within forty-five (45) days
after the Closing Date, Buyer shall deliver to Sellers in writing and in
reasonable detail a good faith determination of the Net Working Capital as of
the Closing Date ("Final Net Working Capital Amount"). Sellers shall assist
Buyer in making such determination and Buyer shall provide Sellers with
reasonable access to the properties, books and records relating to the Stations
for the purpose of determining the Final Net Working Capital Amount. Sellers
shall have the right to review the computations and workpapers used in
connection with Buyer's calculation of the Final Net Working Capital Amount.
If Sellers disagree with the
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amount of the Final Net Working Capital Amount determined by Buyer, Sellers
shall so notify Buyer in writing within twenty-five (25) days after the date of
receipt of Buyer's Final Net Working Capital Amount, specifying in detail any
point of disagreement; provided, however, if Sellers fail to notify Buyer in
writing of Sellers' disagreement within such twenty-five (25) day period,
Buyer's determination of the Final Net Working Capital Amount shall be final,
conclusive and binding on Sellers and Buyer. After the receipt of any notice
of disagreement, Buyer and Sellers shall negotiate in good faith to resolve any
disagreements regarding the Final Net Working Capital Amount. If any such
disagreement cannot be resolved by Sellers and Buyer within twenty-five (25)
days after Buyer has received notice from Sellers of the existence of such
disagreement, Buyer and Sellers shall jointly retain the accounting firm of
Ernst & Young LLP or another nationally recognized public accounting firm (the
"Accounting Firm") to review the Buyer's determination of the Final Net Working
Capital Amount and to resolve as soon as possible all points of disagreement
raised by Sellers. All determinations made by the Accounting Firm with respect
to the Final Net Working Capital Amount shall be final, conclusive and binding
on Buyer and Sellers. The fees and expenses of the Accounting Firm incurred in
connection with any such determination shall be shared one-half by Buyer and
one-half by Sellers.
Subject to the ultimate resolution of any disagreement with respect to the
calculation of the Final Net Working Capital Amount, if the Final Net Working
Capital Amount is such that Buyer's payment of the Estimated Net Working
Capital Amount is an underpayment to Sellers for the actual Net Working
Capital, then Buyer shall pay Sellers in cash an amount equal to such
underpayment within two (2) business days following the final determination of
the Final Net Working Capital Amount. Subject to the ultimate resolution of
any disagreement with respect to the calculation of the Final Net Working
Capital Amount, if the Final Net Working Capital Amount is such that Buyer's
payment of the Estimated Net Working Capital Amount is an overpayment to
Sellers for the actual Net Working Capital, then Sellers shall pay Buyer in
cash an amount equal to such overpayment within two (2) business days following
the determination of the Final Net Working Capital Amount. Any amounts paid
pursuant to this Section 2.6.2 shall be by wire transfer of immediately
available funds for credit to the recipient at a bank account identified by
such recipient in writing.
Buyer and Sellers agree that prior to the date of the final determination
of the Final Net Working Capital Amount pursuant to this Section 2.6.2 (by the
Accounting Firm or otherwise), neither party will destroy any records
pertaining to, or necessary for, the final determination of the Final Net
Working Capital Amount.
Schedule 2.6.2 contains a pro forma calculation of the Net Working Capital
Amount for the Jupiter/▇▇▇▇▇ Stations based on financial statements referred to
in Section 3.5.1 hereof as if the Closing occurred as of September 30,
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1996. Schedule 2.6.2 is attached hereto solely for the purpose of
demonstrating by example the manner in which the Net Working Capital Amount for
the Jupiter/▇▇▇▇▇ Stations shall be calculated as of the Closing Date.
2.7. ALLOCATION OF PURCHASE PRICE.
Sellers and Buyer agree to allocate the Base Purchase Price among
the Stations for all purposes (including financial, accounting and Tax
purposes) as follows:
(a) WEYI $36,500,000
(b) WROC $47,000,000
(c) KSBW $45,000,000
The Purchase Price shall be allocated among classes of Assets as provided for
in Section 8.5.
2.8. ASSUMPTION OF LIABILITIES.
2.8.1. At the Closing, the Buyer shall assume, and shall agree to
pay, perform and discharge and shall agree to indemnify and hold Sellers
harmless from (a) all Liabilities arising after and relating to the period
after the Closing Date under the Station Contracts and the FCC Licenses, (b)
all Liabilities arising out of events occurring after the Closing Date related
to the businesses or operations of the Stations or Buyer's ownership of the
Assets, (c) all Liabilities for which Buyer receives an adjustment to the Base
Purchase Price in connection with the calculation of the Final Net Working
Capital Amount to the extent of the amount of such adjustment as reflected in
the Final Net Working Capital Amount, and (d) all Liabilities of Sellers to
employees of the Stations to be assumed by Buyer in accordance with Section 8.4
hereof.
2.8.2. Except for the Liabilities expressly assumed by Buyer as set
forth in Section 2.8.1 hereof, Buyer assumes no other Liabilities of any kind or
description.
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ARTICLE 3.
REPRESENTATIONS AND WARRANTIES BY SELLER
Each Seller with respect to the Station and Assets owned by such
Seller represents and warrants to Buyer as follows:
3.1. ORGANIZATION AND STANDING.
Each Seller is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware and is
duly qualified to do business as a foreign limited partnership and is in good
standing in each jurisdiction where such qualification is necessary, except for
those jurisdictions where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse Effect. Seller has
the full partnership power and authority to own, lease and otherwise to hold
and operate the Assets, to carry on the business of the Stations as now
conducted, and to enter into and perform the terms of this Agreement, the other
Seller Documents and the transactions contemplated hereby and thereby.
3.2. AUTHORIZATION.
The execution, delivery and performance of this Agreement and of
the other Seller Documents, and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
necessary action of the partners of Seller and by any other necessary limited
partnership actions of Seller (none of which actions has been modified or
rescinded and all of which actions are in full force and effect). This
Agreement and the Deposit Escrow Agreement constitute, and upon execution and
delivery each other Seller Document will constitute, valid and binding
agreements and obligations of Seller, enforceable against Seller in accordance
with their respective terms, except as the same may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights generally and by the
application of general principles of equity.
3.3. COMPLIANCE WITH LAWS.
Seller is in compliance in all material respects with all Laws
applicable to Seller, to the Assets, to the Stations and to its respective
businesses and operations. Seller has obtained and holds all permits, licenses
and approvals (none of which has been modified or rescinded and all of which are
in full force and effect) from all Governmental Authorities necessary in order
to conduct the operations of the Stations as presently conducted, except for
such permits, licenses and approvals for which the failure to obtain would not,
individually or in the aggregate, have a Material Adverse Effect.
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20
3.4. CONSENTS AND APPROVALS; NO CONFLICTS.
3.4.1. The execution and delivery of this Agreement, and the
performance of the transactions contemplated herein by Seller, will not require
any consent, approval, authorization or other action by, or filing with or
notification to, any Person in connection with any material Station Contract,
except that certain of the Station Contracts may be assigned only with the
consent of third parties, as specified in Schedule 3.4.1.
3.4.2 The execution and delivery of this Agreement, and the
performance of the transactions contemplated herein by Seller, will not require
any consent, approval, authorization or other action by, or filing with or
notification to, any Governmental Authority where the failure to make such
filing or obtain such consent will have a Material Adverse Effect, except as
follows: (a) filings required under ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇, (b) consents to the
assignment of the FCC Licenses to Buyer by the FCC, and (c) filings, if any,
with respect to real estate transfer taxes.
3.4.3. Assuming all consents, approvals, authorizations and other
actions described in Section 3.4.1 and Section 3.4.2 have been obtained and all
filings and notifications described in Section 3.4.1 and Section 3.4.2 have been
made, the execution, delivery and performance of this Agreement and the other
Seller Documents by Seller do not and will not (a) conflict with or violate any
Law applicable to Seller, the Assets or the Stations or by which any of the
Assets or the Stations is subject or affected, (b) conflict with or result in
any breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under any contract or agreement to which
Seller is a party or by which Seller is bound or to which any of the Assets or
the Stations is subject or affected, (c) result in the creation of any
Encumbrance upon the Assets, or (d) conflict with or violate the organizational
documents of Seller; except where any such conflict, violation or breach would
not, individually or in the aggregate, have a Material Adverse Effect.
3.5. FINANCIAL STATEMENTS; UNDISCLOSED LIABILITIES.
3.5.1. Seller has provided to Buyer unaudited balance sheets of the
Jupiter/▇▇▇▇▇ Stations as of September 30, 1996 and the unaudited statements of
income and cash flow for the nine month period ended September 30, 1996. The
financial statements referred to in this Section 3.5.1 (a) present fairly in
all material respects the financial condition of the Jupiter/▇▇▇▇▇ Stations as
of the respective dates and the results of operations and cash flows for the
respective periods indicated, and (b) have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis (except
that the financial statements referred to in this Section 3.5.1 (x) do not
contain all footnotes required under generally accepted accounting principles
and (y) are subject to (i) normal year-end audit adjustments and (ii)
adjustments in connection with the
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resolution of outstanding working capital matters with previous owners of the
Jupiter/▇▇▇▇▇ Stations, none of which, individually or in the aggregate, is
material).
3.5.2. There exist no Liabilities of any of the Stations relating to,
or arising out of, the business or operations of the Stations, contingent or
absolute, matured or unmatured, known or unknown, except (a) as reflected on the
unaudited balance sheets as of September 30, 1996 (the "Current Balance Sheet
Date") referred to in Section 3.5.1 and (b) for Liabilities that were incurred
after the Current Balance Sheet Date in the Ordinary Course of Business.
3.6. ABSENCE OF CERTAIN CHANGES OR EVENTS.
Except as set forth and described in Schedule 3.6, since the Current
Balance Sheet Date, there has been no Material Adverse Effect (or event that
reasonably could be expected to have a Material Adverse Effect). Since the
Current Balance Sheet Date, Seller has conducted the business of the Stations
in the Ordinary Course of Business, and Seller has not (a) incurred loss of, or
injury to, any of the Assets as the result of any fire, explosion, flood,
windstorm, earthquake, labor trouble, riot, accident, act of God or public
enemy or armed forces, or other casualty, except for such losses or injuries
which have been cured in accordance with Section 8.2; (b) incurred, or become
subject to, any Liability, except current Liabilities incurred in the Ordinary
Course of Business; (c) discharged or satisfied any Encumbrance or paid any
Liability other than current Liabilities shown in the balance sheets furnished
pursuant to Section 3.5, current Liabilities incurred since the Current Balance
Sheet Date in the Ordinary Course of Business, and Liabilities (including,
without limitation, partial and complete prepayments) arising under any credit
or loan agreement between Seller and its lenders; (d) mortgaged, pledged or
subjected to any Encumbrance any of its Assets other than Encumbrances in
connection with Liabilities arising under any credit or loan agreement between
Seller and its lenders; (e) sold, exchanged, transferred or otherwise disposed
of any of its Assets, or canceled any debts or claims; (f) written down the
value of any Assets or written off as uncollectible any Accounts Receivable,
except write-downs and write-offs in the Ordinary Course of Business; (g)
entered into any transactions other than in the Ordinary Course of Business;
(h) made any material change in any method of accounting or accounting
practice; or (i) made any agreement to do any of the foregoing.
3.7. ABSENCE OF LITIGATION.
Except as set forth on Schedule 3.7 as of the date hereof, there is
no action, suit, investigation, claim, arbitration or litigation pending or, to
Seller's knowledge, threatened against Seller, the Assets, or the Stations by
or before any Governmental Authority that, individually or in the aggregate,
would be reasonably
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likely to (a) have a Material Adverse Effect, or (b)
challenge or seek to prevent, enjoin, alter or materially delay the transaction
contemplated hereby.
3.8. ASSETS.
Except for the Excluded Assets, the Assets include all of the assets
or property used in the business of the Stations as presently operated. Except
for leased or licensed Assets, Seller is the owner of, and has good title to,
the Assets free and clear of any Encumbrances, except for and subject only to
(a) the Permitted Encumbrances, and (b) those Encumbrances listed in Schedule
3.8 which shall be discharged and removed on or prior to the Closing Date. At
the Closing, Buyer shall acquire good title to, and all right, title and
interest in and to the Assets, free and clear of all Encumbrances, except for
the Permitted Encumbrances.
3.9. FCC MATTERS.
Seller holds the FCC Licenses listed as held by Seller on Schedule
2.1.1. The FCC Licenses constitute all of the licenses, permits and
authorizations from the FCC that are required for the business and operations of
the Stations. The FCC Licenses are valid and in full force and effect through
the dates set forth on Schedule 2.1.1, unimpaired by any condition which would
reasonably be likely to have, individually or in the aggregate, a Material
Adverse Effect. The Stations have been operated by Sellers in all material
respects in accordance with the terms of the FCC Licenses. Except as set forth
on Schedule 3.9, no application, action or proceeding is pending for the renewal
or modification of any of the FCC Licenses, and, except for actions or
proceedings affecting television broadcast stations generally, no application,
complaint, action or proceeding is pending or, to Seller's knowledge, threatened
that may result in the (a) the revocation, modification, non-renewal or
suspension of any of the FCC Licenses, (b) the issuance of a cease-and-desist
order, or (c) the imposition of any administrative or judicial sanction with
respect to the Stations. Seller has no knowledge of any facts, conditions or
events relating to Seller or the Stations including, without limitation,
Seller's compliance with the Children's Television Act, that would reasonably be
expected to cause the FCC to deny the assignment of the FCC Licenses as provided
for in this Agreement. Seller has filed with the FCC all reports, forms and
statements required by the FCC to be filed by Seller relating to the Stations,
including, without limitation, applications for renewal of authority required by
applicable Laws.
3.10. REAL PROPERTY.
3.10.1. Seller has good and marketable title to the Real Property
listed in Schedule 2.1.2, free and clear of all Encumbrances, except for (a)
those items listed in Schedule 3.10, and (b) Permitted Encumbrances.
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3.10.2. Seller has a valid leasehold interest in all Leased Property
listed as leased by Seller in Schedule 2.1.2. Schedule 2.1.2 lists all leases
and subleases pursuant to which any of the Leased Property is leased by Seller.
Seller is the owner and holder of all the Leased Property purported to be
granted by such leases and subleases. Each such lease and sublease is in full
force and effect and constitutes a legal, valid and binding obligation of, and
is legally enforceable against Seller and to the knowledge of Seller, each
other party thereto and grants the leasehold interest it purports to grant.
Seller has complied with all of the material provisions of such leases and
subleases and is not in default thereunder in any material respect, and to
Seller's knowledge, there has not occurred any event which (whether with or
without notice, lapse of time or the happening or occurrence of any other
event) would constitute such a default.
3.10.3 The Real Property and the Leased Property listed in
Schedule 2.1.2 constitute all of the real property owned, leased or used by
Seller in the business and operations of the Stations.
3.10.4. All buildings, structures, fixtures and other improvements
on the Real Property are in operating condition and adequate repair (ordinary
wear and tear excepted) for the purposes to which they are currently devoted.
3.10.5. To the knowledge of Seller, no portion of the Real Property
or any building, structure, fixture or improvement thereon is the subject of, or
affected by, any condemnation, eminent domain or inverse condemnation proceeding
currently instituted or pending.
3.10.6. Seller has delivered to Buyer copies of title policies and
surveys prepared in connection with Seller's acquisition of the Real Property.
3.11. CONDITION OF TANGIBLE ASSETS.
Except as set forth on Schedule 3.11, all tangible Assets presently
in use are in operating condition and adequate repair (ordinary wear and tear
excepted) for the purposes to which they are currently devoted.
3.12. INTELLECTUAL PROPERTY.
Schedule 2.1.4 contains a true, correct and complete listing of all
Intellectual Property owned or licensed by or registered in the name of Seller
which is used in the business and operations of the Stations, all of which is
transferable to Buyer by the sole act and deed of Seller; and except as set
forth in Schedule 3.12.1 no consent on the part of any other person is
necessary to validate the transfer to Buyer of such Intellectual Property.
Seller pays no royalty to anyone with respect to the Intellectual Property.
Seller owns or possesses all rights to use all such Intellectual Property
material to the conduct of the business of the Stations. Seller
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does not have any knowledge and Seller has not received any notice to the
effect that any service rendered by Seller relating to the business of the
Stations may infringe on any Intellectual Property right or other legally
protectable right of another. Seller has the right to the use of the call
letters "WEYI", "WROC-TV," or "KSBW" (as applicable) pursuant to the rules and
regulations of the FCC.
3.13. REPORTS AND RECORDS.
All material returns, reports and statements relating to the
Stations required to be filed by Seller with the FCC or any other Governmental
Authority have been filed and when filed were correct and complete in all
material respects. All such reports, returns and statements shall continue to
be filed on a current basis until the Closing Date, and will be correct and
complete in all material respects when filed. All documents required by the
FCC's rules to be placed in the Stations' public files by Seller have been
placed and are being held in such files. All logs and business records of every
type and nature relating to the business and operations of the Stations have
been maintained in all material respects in accordance with the rules and
regulations of the FCC.
3.14. STATION CONTRACTS.
The Station Contracts set forth in Schedules 2.1.5, 2.1.6 and
2.1.8 are all of the contracts and agreements relating to the Assets, to the
Stations or to the business and operations thereof, other than (a) Time Sales
Agreements; (b) contracts and agreements which are terminable on no more than
sixty (60) days notice without the payment of a premium or penalty; and (c)
contracts and agreements which do not require payments of more than $10,000 per
contract per year or $150,000 per year in the aggregate per Station. Complete
and correct copies of all such Station Contracts have been made available to
Buyer and (a) each such Station Contract is in full force and effect; (b) Seller
is not in breach or default of the terms of any Station Contract in any material
respect; (c) none of the material rights of Seller under any such Station
Contract will be subject to termination or modification, nor will a default
occur, as a result of the consummation of the transactions contemplated hereby,
except to the extent that failure to obtain the prior consent to assignment
thereof (to the extent set forth on Schedule 3.4.1) of any party thereto shall
or could be interpreted to constitute a termination or modification of or a
default under any such Station Contract, and (d) to the knowledge of Seller, no
other party to any such Station Contract is in material breach or default of the
terms thereunder.
3.15. TAXES.
3.15.1. Seller has (or, in the case of returns becoming due after
the date hereof and on or before the Closing Date, will have prior to the
Closing Date)
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duly filed all Seller Tax Returns required to be filed by Seller on or before
the Closing Date with respect to all applicable Taxes. In the case of any
Seller Tax Returns which receive an extension for their date of filing, such
Seller Tax Returns will be considered due on, and not considered required to be
filed before, the extended due date. To the Seller's knowledge, all of Seller
Tax Returns are (or, in the case of returns becoming due after the date hereof
and on or before the Closing Date, will be) true and complete in all material
respects. Seller: (a) has paid all Taxes due to any Governmental Authority in
connection with any of Seller Tax Returns; or (b) has established (or, in the
case of amounts becoming due after the date hereof, prior to the Closing Date
will have established) adequate reserves (in conformity with generally accepted
accounting principles consistently applied) for the payment of such Taxes.
3.15.2. There is no action, suit, proceeding, audit, investigation
or claim pending or, to the knowledge of Seller, threatened in respect of any
Taxes associated with, or which would become a lien against, the Assets or
operations of the Stations for which Seller may become liable, nor has any
deficiency or claim for any such Taxes been proposed, asserted or, to the
knowledge of Seller, threatened. There is no Station Contract, waiver or
consent providing for an extension of time with respect to the assessment or
collection of any Taxes associated with, or which would become a lien against,
the Assets or operations of the Stations against Seller, and no power of
attorney granted by Seller with respect to any related tax matters is currently
in force.
3.16. EMPLOYEE BENEFIT PLANS.
3.16.1. Schedule 3.16 lists all Plans and Benefit Arrangements
maintained by or contributed to by ▇▇▇▇▇ Broadcasting Group, Inc. ("SBG") for
the benefit of the employees of the Stations (collectively, the "Benefit
Plans"). Each Benefit Plan has been maintained in substantial compliance with
its terms and with the requirements prescribed by applicable Law, including,
without limitation, ERISA and the Code.
3.16.2. Schedule 3.16 sets forth a list of all Qualified Plans. All
Qualified Plans and any related trust agreements or annuity agreements (or any
other funding document) have been maintained in compliance with ERISA and the
Code (including, without limitation, the requirements for Tax qualification
described in Section 401 thereof). The trusts established under such Plans are
exempt from federal income taxes under Section 501(a) of the Code.
3.16.3. Schedule 3.16 lists all funded Welfare Plans that provide
benefits to current or former employees of Seller or its beneficiaries. The
funding under each Welfare Plan does not exceed and has not exceeded the
limitations under Sections 419A(b) and 419A(c) of the Code. Neither SBG nor
Seller is subject
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to taxation on the income of any Welfare Plan's welfare
benefit fund (as such term is defined in Section 419(e) of the Code) under
Section 419A(g) of the Code.
3.16.4. Except as required by applicable Law, neither SBG nor
Seller has any post-retirement medical, life insurance or other benefits
promised, provided or otherwise due now or in the future to current, former or
retired employees of Seller.
3.16.5. Except as set forth in Schedule 3.16, SBG has (a) filed or
caused to be filed all returns and reports on the Plans that it is required to
file and (b) paid or made adequate provision for all fees, interest, penalties,
assessments or deficiencies that have become due pursuant to those returns or
reports or pursuant to any assessment or adjustment that has been made relating
to those returns or reports. All other fees, interest, penalties and
assessments that are payable by or for SBG and/or Seller have been timely
reported, fully paid and discharged. There are no unpaid fees, penalties,
interest or assessments due from SBG and/or Seller or from any other person that
are or could become an Encumbrance on any Asset or could otherwise adversely
affect the businesses or Assets. SBG has collected or withheld all amounts that
are required to be collected or withheld by it to discharge its obligations, and
all of those amounts have been paid to the appropriate Governmental Authority or
set aside in appropriate accounts for future payment when due. SBG has
furnished to Buyer true and complete copies of all documents setting forth the
terms and funding of each Plan (including, without limitation, copies of each
severance benefit arrangement and vacation pay plan).
3.17. LABOR RELATIONS.
3.17.1. Except as set forth in Schedule 3.17.1, there are no
strikes, work stoppages, grievance proceedings, union organization efforts, or
other controversies pending or threatened between Seller and any union or
collective bargaining unit representing such employees. Seller is in compliance
in all material respects with all Laws relating to the employment or the
workplace, including, without limitation, provisions relating to wages, hours,
collective bargaining, safety and health, work authorization, equal employment
opportunity, immigration and the withholding of income taxes, unemployment
compensation, worker's compensation, employee privacy and right to know and
social security contributions. Except as set forth in Schedule 3.17.1 hereto,
there are no collective bargaining agreements relating to the Stations or the
business and operations thereof and Seller has not agreed to recognize any union
or other collective bargaining unit, nor has any union or collective bargaining
unit been certified as representing any of Seller's employees.
3.17.2. Seller has provided to Buyer a true and complete list dated
as of August 1, 1996 of all employees of Seller who perform significant services
at the Stations.
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3.18. ENVIRONMENTAL MATTERS.
3.18.1 Schedule 3.18 sets forth all environmental reports and
assessments prepared for and/or delivered to Seller in connection with Seller's
acquisition and operation of the Real Property.
3.18.2. To the knowledge of Seller, the information set forth in
Schedule 3.18 is true, correct and complete in all material respects. Since
Seller's acquisition of the Stations, Seller has operated the Stations, the Real
Property and all improvements thereon in material compliance with all
Environmental Laws.
3.18.3 Except as set forth in Schedule 3.18, there are no pending
or, to the knowledge of Seller, threatened actions, suits, claims, or other
legal proceedings based on (and Seller has not received any notice of any
complaint, order, directive, citation, notice of responsibility, notice of
potential responsibility, or information request from any Governmental Authority
arising out of or attributable to): (a) the current or past presence at any part
of the Real Property of Hazardous Materials; (b) the current or past release or
threatened release into the environment from the Real Property (including,
without limitation, into any storm drain, sewer, septic system or publicly owned
treatment works) of any Hazardous Materials; (c) the off-site disposal of
Hazardous Materials originating on or from the Real Property or the businesses
or Assets of Seller; (d) any facility operations or procedures of Seller which
do not conform to requirements of the Environmental Laws; or (e) any violation
of Environmental Laws at any part of the Real Property arising from Seller's
activities involving Hazardous Materials. To the knowledge of Seller, Seller
has been duly issued all permits, licenses, certificates and approvals required
under any Environmental Law, except for such permits the failure to obtain, will
not have, individually or in the aggregate, a Material Adverse Effect.
3.18.4 Based on the information set forth in Schedule 3.18, the Real
Property contains no underground storage tanks, or underground piping
associated with such tanks, used currently or in the past for Hazardous
Materials.
3.19. TRANSACTIONS WITH AFFILIATES
Except as set forth in Schedule 3.19 attached hereto, Seller is
not now, and since January 1, 1996, has not been, a party, directly or
indirectly, to any contract, lease, arrangement or transaction which is material
to the business or operations of any Station, whether for the purchase, lease or
sale of property, for the rendition of services or otherwise, with any affiliate
of Seller, or any officer, director, employee, proprietor, partner or
shareholder of Seller. The terms and conditions of the transactions involving
Seller and any affiliate of Seller which are identified on Schedule 3.19 are
described briefly therein.
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3.20. INSURANCE.
Schedule 3.20 contains a list and brief summary of all policies of
title, property, fire, casualty, liability, life, workmen's compensation, libel
and slander, and other forms of insurance of any kind relating to the Assets or
the business and operations of the Stations and held by Seller. All such
policies: (a) are in full force and effect; (b) are sufficient for compliance in
all material respects by Seller with all requirements of Law and of all material
agreements to which Seller is a party; and (c) are valid, outstanding, and
enforceable policies.
3.21. INTERPRETATION OF CERTAIN PROVISIONS.
Seller has not relied and is not relying on the specification of any
dollar amount in any representation or warranty made in this Agreement or any
Schedule hereto to indicate that such amounts, or higher or lower amounts, are
or are not material, and agrees not to assert in any dispute or controversy
between the parties hereto that specification of such amounts indicates or is
evidence as to whether or not any obligation, item or matter is or is not
material for purposes of this Agreement and the transactions contemplated
hereby.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES BY BUYER
Buyer represents, warrants and covenants to Sellers as follows:
4.1. ORGANIZATION AND STANDING.
Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Texas and by the Closing Date will be
duly qualified to do business as a foreign corporation where such qualification
is necessary unless the failure to be so qualified would not materially and
adversely affect Buyer's ability to consummate the transactions contemplated by
this Agreement. Buyer has the full corporate power and corporate authority to
enter into and perform the terms of this Agreement and the other Buyer
Documents and to carry out the transactions contemplated hereby and thereby.
4.2. AUTHORIZATION.
The execution, delivery and performance of this Agreement and of the
other Buyer Documents, and the consummation of the transactions contemplated
hereby and thereby, have been duly and validly authorized by all necessary
actions of Buyer (none of which actions has been modified or rescinded and all
of which actions are in full force and effect). This Agreement and the Deposit
Escrow Agreement constitute, and upon execution and delivery each such
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other Buyer Document will constitute, a valid and binding agreement and
obligation of Buyer, enforceable against Buyer in accordance with its
respective terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights generally and by the application of
general principles of equity.
4.3. COMPLIANCE WITH LAWS.
As of the Closing Date, Buyer shall have obtained and shall hold all
material permits, licenses and approvals (none of which will have been modified
or rescinded and all of which shall be in full force and effect) from all
Governmental Authorities necessary in order to conduct the operations of the
Stations as presently conducted and to own, use and maintain the Assets.
4.4. CONSENTS AND APPROVALS; NO CONFLICTS.
4.4.1. The execution and delivery of this Agreement, and the
performance of the transactions contemplated herein by Buyer, will not require
any consent, approval, authorization or other action by, or filing with or
notification to, any Person or Governmental Authority where the failure to make
such filing or obtain such consent will have a material adverse effect on
Buyer's ability to consummate the transactions contemplated by this Agreement,
except as follows: (a) filings required under ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇, (b) approvals
of the assignment of the FCC Licenses to Buyer by the FCC, and (c) based upon
Sellers' representations set forth in Section 3.4.1, certain of the Station
Contracts may be assigned only with the consent of third parties, as specified
in Schedule 3.4.1.
4.4.2. Assuming all consents, approvals, authorizations and other
actions described in Section 4.4.1 have been obtained and all filings and
notifications described in Section 4.4.1 have been made, the execution, delivery
and performance of this Agreement and the other Buyer Documents by Buyer do not
and will not (a) conflict with or violate any Law applicable to Buyer, (b)
conflict with or result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) of any
contract or agreement to which Buyer is a party or by which Buyer is bound, or
(c) conflict with or violate the organizational documents of Buyer.
4.5. AVAILABILITY OF FUNDS.
Buyer will have available on the Closing Date sufficient funds to
enable it to consummate the transactions contemplated hereby.
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4.6. QUALIFICATION OF BUYER.
Buyer is, and pending Closing will be legally, technically,
financially and otherwise qualified under the Communications Act and all rules,
regulations and policies of the FCC to acquire and operate the Stations. There
are no facts or proceedings which would reasonably be expected to disqualify
Buyer under the Communications Act or otherwise from acquiring or operating any
of the Stations or would cause the FCC not to approve the assignment of the FCC
Licenses to Buyer. Buyer has no knowledge of any fact or circumstance relating
to Buyer or any of Buyer's affiliates that would reasonably be expected to (a)
cause the filing of any objection to the assignment of the FCC Licenses to
Buyer, or (b) lead to a delay in the processing by the FCC of the applications
for such assignment. No waiver of any FCC rule or policy is necessary to be
obtained for the grant of the applications for the assignment of the FCC
Licenses to Buyer, nor will processing pursuant to any exception or rule of
general applicability be requested or required in connection with the
consummation of the transactions herein.
4.7. NO OUTSIDE RELIANCE.
Buyer has not relied and is not relying on any statement,
representation or warranty not made in this Agreement, any Schedule hereto or
any certificate to be delivered to Buyer at the Closing pursuant to this
Agreement. Buyer is not relying on any projections or other predictions
contained or referred to in the Schedules or other materials that have been or
may hereafter be provided to Buyer or any of its Affiliates, agents or
representatives, and Sellers make no representations or warranties with respect
to any such projections or other predictions.
4.8. INTERPRETATION OF CERTAIN PROVISIONS.
Buyer has not relied and is not relying on the specification of any
dollar amount in any representation or warranty made in this Agreement or any
Schedule hereto to indicate that such amounts, or higher or lower amounts, are
or are not material, and agrees not to assert in any dispute or controversy
between the parties hereto that specification of such amounts indicates or is
evidence as to whether or not any obligation, item or matter is or is not
material for purposes of this Agreement and the transactions contemplated
hereby.
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ARTICLE 5.
PRE-CLOSING FILINGS
5.1. APPLICATIONS FOR FCC CONSENT.
As promptly as practicable and no later than November 15, 1996,
Sellers and Buyer shall jointly file applications for the Stations with the FCC
requesting the consent of the FCC to the assignment of the FCC Licenses for the
Stations from Sellers to Buyer. Sellers and Buyer will diligently take, or
fully cooperate in the taking of, all necessary and proper steps, and provide
any additional information reasonably requested in order to obtain promptly the
requested consents and approvals of the applications by the FCC; provided,
however, that none of the parties hereto shall have any obligation to
participate in any evidentiary hearing.
5.2. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇.
As promptly as practicable and no later than November 22, 1996,
Sellers and Buyer shall complete any filing that may be required pursuant to
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ (each an "HSR Filing"), or shall mutually agree that no such
filing is required. Sellers and Buyer shall diligently take, or fully cooperate
in the taking of, all necessary and proper steps, and provide any additional
information reasonably requested in order to comply with, the requirements of
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇.
ARTICLE 6.
COVENANTS AND AGREEMENTS OF SELLER
Each Seller covenants and agrees with Buyer as follows:
6.1. NEGATIVE COVENANTS.
Pending and prior to the Closing, Seller will not, without the prior
consent of Buyer, do or agree to do any of the following:
6.1.1. DISPOSITIONS; MERGERS.
Sell, assign, lease or otherwise transfer or dispose of any
of the Assets other than in the Ordinary Course of Business; or merge or
consolidate with or into any other entity or enter into any contracts or
agreements relating thereto.
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6.1.2. ACCOUNTING PRINCIPLES AND PRACTICES.
Change or modify any of Seller's accounting principles or
practices or any method of applying such principles or practices.
6.1.3. TRADE-OUT AGREEMENTS.
Enter into any Trade-out Agreement except in the Ordinary
Course of Business.
6.1.4. BROADCAST TIME SALES AGREEMENTS.
Enter into any Time Sales Agreement except in the Ordinary
Course of Business.
6.1.5. NETWORK AFFILIATION AGREEMENTS AND LOCAL MARKETING
ARRANGEMENTS.
Acquire or enter into any network affiliation agreements,
local marketing arrangements, joint operating agreements, time brokerage
agreements or other similar contracts.
6.1.6. ADDITIONAL AGREEMENTS.
Acquire or enter into any new Station Contracts not referred
to in Sections 6.1.3, 6.1.4 or 6.1.5 above, or renew, extend, amend, alter,
modify or otherwise change any existing Station Contract, except for Station
Contracts obligating Seller to make payments of less than $50,000 per contract
per year and $250,000 per year in the aggregate per Station (collectively,
"Additional Agreements").
6.1.7. BREACHES.
Do or omit to do any act which will cause a material breach
of any Station Contract.
6.1.8. EMPLOYEE MATTERS.
Except as set forth on Schedule 6.1.8, enter into or become
subject to any employment, labor, union, or professional service contract not
terminable at will, or any bonus, pension, insurance, profit sharing, incentive,
deferred compensation, severance pay, retirement, hospitalization, employee
benefit, or other similar plan; or increase the compensation payable or to
become payable to any employee, or pay or arrange to pay any bonus payment to
any employee, except in the Ordinary Course of Business.
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6.1.9. ACTIONS AFFECTING FCC LICENSES.
Take any action which may jeopardize the validity or
enforceability of or rights under the FCC Licenses.
6.1.10. PROGRAMMING.
Program or broadcast any Program Contract or syndicated
program, except in the Ordinary Course of Business.
6.1.11. AFFILIATED TRANSACTIONS.
Except for the transactions described in Schedule 3.19,
enter any transaction with any affiliate of Seller, including, without
limitation, any renewal, extension, modification or other change in, any
existing contract or agreement to which an affiliate of Seller is a party or
any other transaction involving an affiliate of Seller which will have
continued effectiveness after the Closing Date.
6.2. AFFIRMATIVE COVENANTS.
Pending and prior to the Closing Date, each Seller will:
6.2.1. PRESERVE EXISTENCE.
Preserve its partnership existence and business organization
intact, maintain its existing franchises and licenses, use commercially
reasonable efforts to preserve for the Buyer the relationships of the Stations
with suppliers, customers, employees and others with whom the Stations have
business relationships, and keep all Assets substantially in their present
condition, ordinary wear and tear excepted.
6.2.2. NORMAL OPERATIONS.
Subject to the terms and conditions of this Agreement
(including, without limitation, Section 6.1), (a) carry on the businesses and
activities of the Stations, including without limitation, the sale of
advertising time, entering into other contracts and agreements, or purchasing
and scheduling of programming, in the Ordinary Course of Business; (b) pay or
otherwise satisfy all obligations (cash and barter) of the Stations in the
Ordinary Course of Business; (c) maintain its books of account, records, and
files in substantially the same manner as heretofore; (d) maintain its Assets in
customary repair, maintenance and condition, except to the extent of normal wear
and tear, and repair or replace, consistently with the Ordinary Course of
Business, any Asset that may be damaged or destroyed and (e) continue to collect
and write-off Accounts Receivables in the Ordinary Course of Business.
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6.2.3. MAINTAIN FCC LICENSES.
Maintain the validity of the FCC Licenses, and comply in all
material respects with all requirements of the FCC Licenses and the rules and
regulations of the FCC and all other applicable Laws.
6.2.4. NETWORK AFFILIATION.
Use its reasonable efforts to maintain in full force and
effect Seller's present network affiliation agreements for the Stations (and any
and all modifications and renewals thereof).
6.2.5. STATION CONTRACTS.
Pay and perform its obligations in the Ordinary Course of
Business under the Station Contracts and under any Additional Agreements that
shall be entered into between the date hereof and the Closing pursuant to
Section 6.1.6, in accordance with the respective terms and conditions of such
Station Contracts.
6.2.6. TAXES.
Pay or discharge all Taxes when due and payable in the
Ordinary Course of Business.
6.2.7. PARTNERSHIP ACTION.
Take all partnership action (including, without limitation,
all partner action) under the Laws of any state having jurisdiction over Seller
necessary to effectuate the transactions contemplated by this Agreement and by
the other Seller Documents.
6.2.8. ACCESS.
Cause to be afforded to representatives of Buyer reasonable
access during normal business hours to offices, properties, assets, books and
records, contracts and reports of the Stations, as Buyer shall from time to time
reasonably request; provided, however, that such investigation shall only be
upon reasonable notice and shall not unreasonably disrupt the personnel or
operations of Seller or the Stations. All requests for access to the offices,
properties, assets, books and records, contracts and reports of the Stations
shall be made to such representatives as Seller shall designate in writing, who
shall be solely responsible for coordinating all such requests and all access
permitted hereunder. Buyer acknowledges and agrees that neither Buyer nor its
representatives shall contact any of the employees, customers, suppliers,
partners, or other associates or affiliates of Seller or the Stations, in
connection with the transactions contemplated
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hereby, whether in person or by telephone, mail or other means of
communication, without the specific prior written authorization of such
representatives of Seller.
6.2.9. INSURANCE.
Maintain in full force and effect all of its existing
casualty, liability, and other insurance through the day following the Closing
Date in amounts not less than those in effect on the date hereof.
6.2.10. FINANCIAL STATEMENTS.
Provide Buyer with unaudited monthly statements of assets
and liabilities of Seller relating to the business and operations of the
Stations, and statements of revenues and expenses reflecting the results of
business and operations of the Stations for October, 1996 and for each month
thereafter, within forty-five (45) days after the end of each such month.
6.3. CONSENTS.
Prior to, on and after the Closing, Seller shall take all reasonable
action required to obtain all consents, approvals and agreements of any third
parties necessary to authorize, approve or permit the consummation of the
transactions contemplated by this Agreement, including, without limitation, any
consent of the parties to the Station Contracts designated as necessary in
Schedule 3.4.1 in order to consummate the transactions contemplated hereby
(collectively, the "Restricted Contracts"). Notwithstanding anything to the
contrary set forth in this Agreement or otherwise, to the extent that the
consent or approval of any third party is required under any Restricted
Contract, Seller shall only be required to use reasonable efforts (not
involving the payment by Seller of any money to any party to any such
Restricted Contract) to obtain such consents and approvals.
6.4. CONFIDENTIALITY.
Seller shall, at all times, maintain strict confidentiality with
respect to all documents and information furnished to Sellers by or on behalf of
Buyer. Nothing shall be deemed to be confidential information that: (a) is
known to Sellers at the time of its disclosure to Sellers; (b) becomes publicly
known or available other than through disclosure by Sellers; (c) is received by
Sellers from a third party not actually known by Sellers to be bound by a
confidentiality agreement with or obligation to Buyer; or (d) is independently
developed by Sellers. Notwithstanding the foregoing provisions of this Section
6.3, Sellers may disclose such confidential information (x) to the extent
required or deemed advisable to comply with applicable Laws; (y) to its
officers, directors, employees, representatives, financial advisors, attorneys,
accountants, and agents with respect to the transactions contemplated hereby (so
long as such parties agree to maintain the confidentiality
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of such information, subject to clauses (x) and (z) of this sentence); and (z)
to any Governmental Authority in connection with the transactions contemplated
hereby. In the event this Agreement is terminated, Sellers will return to
Buyer all documents and other material prepared or furnished by Buyer relating
to the transactions contemplated hereunder, whether obtained before or after
the execution of this Agreement. In the event that Seller is requested or
required (including without limitation by oral question, interrogatories,
requests for information or documents, subpoena, civil investigative demand or
similar legal process) to disclose any confidential information, Seller will
promptly notify Buyer of such request or requirements so that Buyer may, as it
may elect, either seek an appropriate protective order or waive Seller's
compliance with the provisions of this Section 6.3. In the event that such
protection or other remedy is not obtained or that the Buyer waives compliance,
Seller agree to furnish only that portion of the confidential information which
Seller is advised by counsel is legally required and to exercise Seller's
reasonable efforts to obtain assurance that confidential treatment will be
accorded such confidential information.
ARTICLE 7.
COVENANTS AND AGREEMENTS OF BUYER
Buyer covenants and agrees with Sellers as follows:
7.1. CONFIDENTIALITY.
Buyer shall, at all times prior to the Closing, maintain strict
confidentiality with respect to all documents and information furnished to
Buyer by or on behalf of Sellers. Nothing shall be deemed to be confidential
information that: (a) is known to Buyer at the time of its disclosure to
Buyer; (b) becomes publicly known or available other than through disclosure by
Buyer; (c) is received by Buyer from a third party not actually known by Buyer
to be bound by a confidentiality agreement with or obligation to Sellers; or
(d) is independently developed by Buyer. Notwithstanding the foregoing
provisions of this Section 7.1, Buyer may disclose such confidential
information (x) to the extent required or deemed advisable to comply with
applicable Laws; (y) to its officers, directors, partners, employees,
representatives, financial advisors, attorneys, accountants, agents,
underwriters, lenders, investors and any other potential sources of financing
with respect to the transactions contemplated hereby (so long as such parties
agree to maintain the confidentiality of such information, subject to clauses
(x) and (z) of this sentence); and (z) to any Governmental Authority in
connection with the transactions contemplated hereby or the financing thereof.
In the event this Agreement is terminated, Buyer will return to Sellers all
documents and other material prepared or furnished by Sellers relating to the
transactions contemplated by this Agreement, whether obtained before or after
the execution of this Agreement. In the event that Buyer is requested or
required (including without limitation by oral
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question, interrogatories, requests for information or documents, subpoena,
civil investigative demand or similar legal process) to disclose any
confidential information, Buyer will promptly notify Seller of such request or
requirements so that Seller may, as it may elect, either seek an appropriate
protective order or waive Buyer's compliance with the provisions of this
Section 7.1. In the event that such protection or other remedy is not obtained
or that the Seller waives compliance, Buyer agrees to furnish only that portion
of the confidential information which Buyer is advised by counsel is legally
required and to exercise Buyer's reasonable efforts to obtain assurance that
confidential treatment will be accorded such confidential information.
7.2. CORPORATE ACTION.
Prior to the Closing, Buyer shall take all corporate action
(including, without limitation, all shareholder action) under the Laws of any
state having jurisdiction over Buyer necessary to effectuate the transactions
contemplated by this Agreement and the other Buyer Documents.
7.3. ACCESS.
For a period of seven (7) years from and after the Closing Date,
Buyer shall cause to be afforded to representatives of Sellers reasonable access
during normal business hours to the offices, books and records, contracts and
reports of the Stations which relate to the operations of the Stations during
the period during which the Stations were owned by Sellers, as Sellers shall
from time to time reasonably request for Sellers' reasonable business purposes;
provided, however, that such investigation shall only be upon reasonable notice
and shall not disrupt the personnel or operations of Buyer or the Stations. All
requests for access to the offices, books and records, contracts and reports of
the Stations shall be made to such representatives as Buyer shall designate in
writing, who shall be solely responsible for coordinating all such requests and
all access permitted hereunder. For a period of seven (7) years from and after
the Closing Date, Buyer shall not dispose of any books and records, contracts
and reports of the Stations which relate to the operations of the Stations
during the period during which the Stations were owned by Sellers without
consulting with Sellers prior to disposal thereof and taking any reasonable
action requested by Sellers with respect to retention and transfer to Sellers
thereof.
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ARTICLE 8.
MUTUAL COVENANTS AND UNDERSTANDINGS
OF SELLER AND BUYER
8.1. POSSESSION AND CONTROL.
Between the date hereof and the Closing Date, Buyer shall not
directly or indirectly control, supervise or direct, or attempt to control,
supervise or direct, the business and operations of the Stations, and such
operation, including complete control and supervision of all programming, shall
be the sole responsibility of Sellers. On and after the Closing Date, Sellers
shall have no control over, or right to intervene, supervise, direct or
participate in, the business and operations of the Stations.
8.2. RISK OF LOSS.
The risk of loss or damage by fire or other casualty or cause to the
Assets until the Closing Date shall be upon Sellers. In the event of any such
loss or damage prior to the Closing Date which causes a Material Adverse
Effect, Sellers shall have the right to restore, replace or repair the damaged
Assets to their previous condition at Sellers' sole cost and expense. In the
event that as of the Closing Date, any such loss or damage shall not have been
restored, replaced, or repaired and Sellers desire to restore, replace or
repair such damaged Assets, Sellers shall have the right to defer the Closing
Date, by written notice to Buyer, until such date (the "Extended Closing Date")
which is the later to occur of (a) the date which is nine (9) months after the
date of this Agreement, or (b) the date which is sixty (60) days after the date
on which such loss or damage occurred. In the event that any such loss or
damage shall not be restored, replaced, or repaired as of the Extended Closing
Date, Buyer shall, at its option, either:
(a) proceed with the Closing and receive at Closing, the insurance
proceeds or an assignment of the right to receive such insurance proceeds, as
applicable, to which Sellers otherwise would be entitled, whereupon Sellers
shall have no further liability to Buyer for such loss or damage (pursuant to
the indemnification provisions of this Agreement or otherwise); or
(b) terminate this Agreement by written notice to Sellers and receive the
immediate return of the Deposit, whereupon no party to this Agreement shall
have any liability to any other party to this Agreement, and this Agreement in
its entirety shall be deemed null, void and of no further force and effect,
except for the provisions set forth in Section 13.2 (which shall survive such
termination).
Buyer and Sellers acknowledge and agree that nothing in this Section 8.2
shall be deemed to waive any requirement that the representations and
warranties be restated at Closing as provided for in Section 9.1 of this
Agreement.
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8.3. PUBLIC ANNOUNCEMENTS.
Between the date hereof and the Closing Date, Sellers and Buyer shall
consult with each other before issuing any press release or otherwise making
any public statements with respect to this Agreement or the transactions
contemplated herein and shall not issue any such press release or make any such
public statement without the prior written consent of the other party, which
shall not be unreasonably withheld; provided, however, that a party may,
without the prior written consent of the other party, issue such press release
or make such public statement as may be required by Law or any listing
agreement with a national securities exchange to which Sellers or Buyer is a
party if it has used all reasonable efforts to consult with the other party and
to obtain such party's consent but has been unable to do so in a timely manner.
8.4. EMPLOYEE MATTERS.
8.4.1. TRANSFERRED EMPLOYEES.
(a) Upon consummation of the Closing hereunder, Buyer shall offer
employment to each of the employees of the Stations, who are actively employed
as of the Closing Date by the Sellers, at a comparable salary, position and
place of employment as held by each such employee immediately prior to the
Closing Date, and Buyer shall adopt employee benefit plans, policies and
arrangements covering such employees substantially similar to the Benefit Plans
of Sellers in effect as of the date hereof. Buyer shall also offer employment
to each employee of the Station who is temporarily absent from active
employment on the Closing Date upon termination of such temporary absence
provided such employee is able to perform the essential functions of the
position such employee held prior to such absence and any such employee shall
be treated as a "Transferred Employee" (as defined herein) from and after the
Closing Date.
(b) To the extent such employees accept employment with Buyer
(collectively, "Transferred Employees"), such Transferred Employees will be
included in Buyer's employee benefit plans and will be subject to Buyer's
employment policies, as generally applicable to Buyer's employees who are
similarly situated. Buyer agrees that Transferred Employees shall be credited
under all of Buyer's applicable employee benefit plans covering such employees
with their service at any of the Jupiter/▇▇▇▇▇ Stations for purposes of
determining any period of eligibility to participate or to vest in benefits to
the same extent such service was counted under the Benefit Plans of Sellers.
Buyer agrees that during the ninety (90) day period immediately following the
Closing Date Buyer shall not (i) terminate any Transferred Employee except for
termination for good cause, or (ii) adversely change the terms of any
Transferred Employee's employment; provided, however, thereafter, subject to
applicable laws, Buyer shall have the right, at any time thereafter, to dismiss
any or all Transferred Employees at any
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time thereafter, with or without cause, and to change the terms and conditions
of their employment (including compensation and employee benefit plans,
policies or arrangements, provided to them).
8.4.2. VACATION AND SICK LEAVE.
In furtherance of and not in limitation of the obligations
and liabilities of Buyer set forth in Section 8.4.1, Buyer shall assume,
without duplication of benefits, the obligations and liabilities of Sellers to
Transferred Employees as of the Closing Date for unused and unpaid vacation and
sick leave, but only to the extent reflected in the employee records of
Sellers. Except as otherwise required by applicable law, Buyer shall provide,
without duplication of benefits, all Transferred Employees with vacation time
or sick leave, as the case may be, rather than cash in lieu thereof, for such
unused and unpaid vacation and sick leave in accordance with Buyer's policies.
Buyer shall be liable for, and shall indemnify, defend and hold harmless
Sellers from and against, all Liabilities of Sellers to Transferred Employees
with respect to unused sick leave and unused vacation leave.
8.4.3. SEVERANCE BENEFITS.
In furtherance of and not in limitation of the obligations
and liabilities of Buyer set forth in Section 8.4.1, with respect to each
Transferred Employee, Buyer shall establish a severance benefit plan similar to
the severance plan of Sellers set forth on Schedule 3.16.1. Transferred
Employees shall be credited under Buyer's severance benefit plan with their
service at any of the Jupiter/▇▇▇▇▇ Stations for purposes of determining the
amount of severance benefits to which they may be entitled under such plan;
provided, however, that any service at any of the Jupiter/▇▇▇▇▇ Stations for
which severance had previously been paid shall be disregarded. Buyer shall be
liable for, and shall indemnify, defend and hold harmless Sellers from and
against any and all claims by Transferred Employees after the Closing Date for
severance benefits to the extent not provided by Buyer's severance benefits
plans adopted pursuant to Buyer's obligation set forth in Section 8.4.1 to
provide employee benefit plans substantially similar to the severance benefits
plan of Sellers set forth on Schedule 3.16.1.
8.4.4. REPRESENTED EMPLOYEES.
(a) In furtherance of and not in limitation of the obligations and
liabilities of Buyer set forth in Section 8.4.1, upon consummation of the
Closing hereunder, Buyer shall: (i) recognize the unions and labor
organizations which are parties to the collective bargaining agreements set
forth in Schedule 3.17.1; (ii) employ all active employees of the Stations
represented by any such union or labor organization (collectively, "Represented
Employees"); (iii) adopt employee benefit plans, policies and arrangements
covering such Represented
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Employees substantially similar to the Benefit Plans of Sellers in effect as of
the date hereof and as required by such collective bargaining agreements; and
(iv) negotiate in good faith with the collective bargaining representatives of
the employees of Seller regarding the substitution of Buyer's employee benefit
plans, policies and arrangements for the Benefit Plans of Sellers.
(b) Upon consummation of the Closing hereunder, Sellers shall assign to
Buyer, and Buyer shall assume the collective bargaining agreements listed in
Schedule 3.17.1, including, without limitation, all obligations, if any, to
provide severance benefits in connection with the termination after the Closing
Date of any Represented Employee. Such assignment and assumption shall not
obligate Buyer to assume any Benefit Plans of Sellers. Except for any
Liabilities of Sellers with respect to unused sick leave or unused vacation
(which Buyer expressly assumes), Buyer shall not be responsible for any
Liabilities of Sellers under the collective bargaining agreement listed in
Schedule 3.17.1, which arose on or prior to the consummation of the Closing,
including, without limitation, any Liabilities for wages and any Benefit Plans
of Seller.
(c) The Seller agrees to cooperate with Buyer in arranging for such
meetings as Buyer may reasonably request with the collective bargaining
representatives of the employees of Seller to discuss Buyer's assumption of the
collective bargaining agreements listed in Schedule 3.17.1 and the
implementation of employee benefits plans, policies and arrangements of the
Buyer; provided, however, that any such meeting (i) shall be subject to the
prior written approval of Seller upon reasonable notice to Seller, and (ii)
shall not unreasonably disrupt the personnel or operations of the Seller or the
Station.
8.4.5. COBRA OBLIGATIONS.
Buyer shall satisfy and discharge any obligations of Sellers
to provide health care continuation coverage as required by the Consolidated
Omnibus Budget Reconciliation Act of 1985 and as described in Section 4908B of
the Code and Sections 601 through 608 of ERISA and as required by any
applicable state continuation of health coverage provisions (collectively,
"COBRA Obligations") to (a) any employee to whom Buyer offers employment
pursuant to Section 8.4.1 who does not accept such offer of employment, or (b)
any employee of the Stations terminated prior to the Closing Date to whom
Sellers have on-going COBRA Obligations. Sellers and Buyer shall reasonably
cooperate in good faith to comply with Sellers' COBRA Obligations with respect
to all such employees by having Buyer assume such obligations on Sellers'
behalf and offering health care continuation coverage under Buyer's group
health plans to all such employees. Buyer shall indemnify, defend and hold
harmless Sellers from and against, all obligations of Buyer set forth in this
Section 8.4.5.
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8.4.6. SELLER BENEFITS PLANS.
As between Buyer and Sellers, Sellers agree to be responsible
and liable for any medical, disability or other benefits owed under Sellers'
benefit plans. Except as otherwise specified in Section 8.4.5, Sellers will be
responsible for providing, at its cost, all medical, life and other insurance
coverage and benefits, and disability benefits to which any employee of Sellers
who was terminated from service with Sellers prior to the Closing Date or who
was disabled prior to the Closing Date is entitled under Sellers' benefit plans
or otherwise.
8.4.7. 401(K) PLANS.
Buyer agrees to permit those Transferred Employees, at each
such Transferred Employee's option, to transfer as a rollover to Buyer's 401(k)
Plan their respective pre-tax account balances under SBG's 401(k) Plan, provided
that such plan is a tax-qualified plan under Section 401(a) and 401(k) of the
Code and that the transfer as a rollover of any such pre-tax account balance
will not affect the tax qualified status of Buyer's 401(k) Plan. SBG agrees
that if any such Transferred Employee elects to transfer as a rollover its
pre-tax account balance to Buyer's 401(k) Plan, SBG will cause the trustees of
SBG's 401(k) Plan to transfer each such electing Transferred Employee's account
to the trustee of Buyer's 401(k) Plan.
8.4.8. EMPLOYMENT CONTRACTS.
Buyer acknowledges and agrees that Buyer's obligations
pursuant to this Section 8.4 are in addition to, and not in limitation of,
Buyer's obligation to assume the employment contracts set forth on Schedule
2.1.8.
8.5. ALLOCATION OF PURCHASE PRICE.
Sellers and Buyer each represent, warrant, covenant, and agree with
each other that the Purchase Price shall be allocated among the classes of
Assets for each Station, as agreed by the parties within thirty (30) days after
the date hereof. Sellers and Buyer agree, pursuant to Section 1060 of the Code
that the Purchase Price shall be allocated in accordance with this Section 8.5,
and that all Tax returns and reports shall be filed consistent with such
allocation. Notwithstanding any other provision of this Agreement, the
provisions of this Section 8.5 shall survive the Closing Date without
limitation.
If Sellers and Buyer are unable to agree on such allocation, within thirty
(30) days following execution of this Agreement, Sellers and Buyer agree to
retain Bond & ▇▇▇▇▇▇ (the "Appraisal Firm") to update their 1996 appraisal of
the classes of Assets of each Station in accordance with the allocation for the
Stations set forth in Section 2.7 and to deliver a report to Sellers and Buyer
as soon as
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reasonably practicable (the "Appraisal Report"). Buyer shall pay the fees,
costs and expenses of the Appraisal Firm whether or not the transactions
contemplated hereby are consummated.
8.6. DISCLOSURE SCHEDULES.
Sellers and Buyer acknowledge and agree that Sellers shall have the
right from time to time after the date hereof to update or correct the Schedules
attached hereto to reflect (a) immaterial omissions from the Schedules, and (b)
changes permitted in accordance with the terms of Article 6. The inclusion of
any fact or item on a Schedule referenced by a particular section in this
Agreement shall, should the existence of the fact or item or its contents, be
relevant to any other section, be deemed to be disclosed with respect to such
other section whether or not an explicit cross-reference appears in the
Schedules if it is reasonably apparent on the face of the Schedule in which such
item is referenced that such item is relevant to such other section.
8.7. BULK SALES LAWS.
Buyer hereby waives compliance by Sellers, in connection with the
transactions contemplated hereby, with the provisions of any applicable bulk
transfer laws; provided, however, that Seller shall indemnify and hold harmless
Buyer from and against any Losses attributable to Sellers' non-compliance with
any applicable bulk transfer laws, without regard to the provisions of Article
12.
ARTICLE 9.
CONDITIONS PRECEDENT TO
BUYER'S OBLIGATION TO CLOSE
The obligations of Buyer to purchase the Assets and to proceed with the
Closing are subject to the satisfaction (or waiver in writing by Buyer) at or
prior to the Closing of each of the following conditions:
9.1. REPRESENTATIONS AND COVENANTS.
The representations and warranties of Sellers made in this Agreement
shall be true and correct in all material respects on and as of the Closing Date
with the same effect as though such representations and warranties had been made
on and as of the Closing Date (provided that any representation or warranty
contained herein that is qualified by a materiality standard shall not be
further qualified hereby), except as modified by the Schedules updated after the
date hereof (in accordance with Section 8.6) and except for representations and
warranties that speak as of a specific date or time other than the Closing Date
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(which need only be true and correct in all material respects as of such date or
time), and the covenants and agreements of Sellers required to be performed on
or before the Closing Date in accordance with the terms of this Agreement shall
have been performed in all material respects.
9.2. REQUIRED CONSENTS.
Sellers shall have obtained prior to the Closing Date all consents,
authorizations or approvals necessary to effect valid assignments to Buyer of
those Station Contracts listed on Schedule 9.2.
9.3. DELIVERY OF DOCUMENTS.
Sellers shall have delivered to Buyer all contracts, agreements,
instruments and documents required to be delivered by Sellers to Buyer pursuant
to Section 11.2.
9.4. FCC ORDER.
The FCC Order shall have become a Final Order with respect to each
of the Stations.
9.5. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇.
All applicable waiting periods under ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ shall have
expired or terminated.
9.6 LEGAL PROCEEDINGS.
No injunction, restraining order or decree of any nature of any court
or Governmental Authority of competent jurisdiction shall be in effect that
restrains or prohibits the transactions contemplated by this Agreement.
9.7 WTOV PURCHASE AGREEMENT.
The consummation of the transactions contemplated by the WTOV Purchase
Agreement shall have occurred concurrently with the Closing hereunder.
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ARTICLE 10.
CONDITIONS PRECEDENT TO
SELLERS' OBLIGATION TO CLOSE
The obligations of Sellers to sell, transfer, convey and deliver the
Assets and to proceed with the Closing are subject to the satisfaction (or
waiver in writing by Sellers) at or prior to the Closing of each of the
following conditions:
10.1. REPRESENTATIONS AND COVENANTS.
The representations and warranties of Buyer made in this Agreement shall
be true and correct in all material respects on and as of the Closing Date with
the same effect as though such representations and warranties had been made on
and as of the Closing Date (provided that any representation or warranty
contained herein that is qualified by a materiality standard shall not be
further qualified hereby) except for representations and warranties that speak
as of a specific date or time other than the Closing Date (which need only be
true and correct in all material respects as of such date or time), and the
covenants and agreements of Buyer required to be performed on or before the
Closing Date in accordance with the terms of this Agreement shall have been
performed in all material respects.
10.2. DELIVERY BY BUYER.
Buyer shall have delivered to Sellers the Purchase Price, to the extent
required to be paid on the Closing Date pursuant to Section 2.5, and all
contracts, agreements, instruments and documents required to be delivered by
Buyer to Sellers pursuant to Section 11.3.
10.3. FCC ORDER.
The FCC Order shall have become a Final Order with respect to the
Stations.
10.4. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇.
All applicable waiting periods under ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ shall have
expired or terminated.
10.5. LEGAL PROCEEDINGS.
No injunction, restraining order or decree of any nature of any
court or Governmental Authority of competent jurisdiction shall be in effect
that restrains or prohibits the transactions contemplated by this Agreement.
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10.6. WTOV PURCHASE AGREEMENT.
The consummation of the transactions contemplated by the WTOV
Purchase Agreement shall have occurred concurrently with the Closing hereunder.
ARTICLE 11.
THE CLOSING
11.1. CLOSING.
The Closing hereunder shall be deemed to take place as of 12:00 p.m.
(midnight) on the last day of the calendar month during which the FCC Order
becomes a Final Order unless there shall be an Extended Closing Date as
contemplated by Section 8.2 of this Agreement or Section 8.2 of the WTOV
Purchase Agreement; provided, however, notwithstanding the foregoing, in no
event shall the Closing hereunder occur prior to January 31, 1997 (the "Closing
Date"). The Closing shall be held at 10:00 A.M. local time on the Closing Date
at the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇,
▇.▇. or at such other time and place as the parties may agree.
11.2. DELIVERY BY SELLER.
At or before the Closing, Sellers shall deliver to Buyer the
following:
11.2.1. AGREEMENTS AND INSTRUMENTS
The following bills of sale, assignments and other
instruments of transfer, dated as of the Closing Date and duly executed by
Sellers:
(a) the Indemnity Escrow Agreement;
(b) the ▇▇▇▇ of Sale;
(c) the Assignment of FCC Licenses;
(d) the Assignment of Contracts and Leases;
(e) the Assumption Agreement;
(f) certificates of title with respect to the motor vehicles listed
on Schedule 2.1.10 or if any such motor vehicles are leased by Sellers,
an assignment of such lease;
(g) special or limited warranty deeds for all Real Property owned by
Sellers in the forms attached hereto as Exhibit G; and
(h) real and personal property transfer tax forms, including,
without limitation, those set forth in Exhibit H attached hereto.
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11.2.2. CONSENTS.
Copies of all consents Sellers have been able to obtain to
effect the assignment to Buyer of the Station Contracts listed on Schedule
3.4.1.
11.2.3. CERTIFIED RESOLUTIONS.
A copy of the approval of the partners of Sellers,
certified as being correct and complete and then in full force and effect,
authorizing the execution, delivery and performance of this Agreement, and of
the other Sellers Documents, and the consummation of the transactions
contemplated hereby and thereby.
11.2.4. OFFICERS' CERTIFICATES.
(a) A certificate of Sellers certifying the matters set forth in
Section 9.1; and
(b) a certificate of Sellers as to the incumbency of the
representatives of Sellers executing this Agreement or any of the other
Seller Documents on behalf of Sellers.
11.2.5. ORGANIZATIONAL DOCUMENTS.
Copies of the organizational documents of each Seller and
SBG certified by an executive officer of SBG as being correct and complete.
11.2.6. DEPOSIT
Sellers and the WTOV Seller shall have instructed the
Escrow Agent in writing to return the Deposit to Buyer and the WTOV Buyer.
11.3. DELIVERY BY BUYER.
At or before the Closing, Buyer shall deliver to Sellers the
following:
11.3.1. PURCHASE PRICE PAYMENT.
The Purchase Price in the amount and manner set forth in
Section 2.
11.3.2. AGREEMENTS AND INSTRUMENTS.
The following assumption agreement and other instruments of transfer,
dated as of the Closing Date and duly executed by Buyer:
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(a) the Indemnity Escrow Agreement;
(b) the Assumption Agreement; and
(c) real and personal property transfer tax forms, including,
without limitation, those set forth in Exhibit H attached hereto.
11.3.3. CERTIFIED RESOLUTIONS.
Copies of the resolutions of the directors of Buyer,
certified as being correct and complete and then in full force and effect,
authorizing the execution, delivery and performance of this Agreement and of the
other Buyer Documents, and the consummation of the transactions contemplated
hereby and thereby.
11.3.4. OFFICERS' CERTIFICATE.
(a) A certificate of Buyer signed by an officer of Buyer certifying
the matters set forth in Section 10.1; and
(b) a certificate signed by the Secretary of Buyer as to the
incumbency of the officers of Buyer executing this Agreement or any of
the other Buyer Documents on behalf of Sellers.
ARTICLE 12.
SURVIVAL; INDEMNIFICATION
12.1. SURVIVAL OF REPRESENTATIONS.
Unless otherwise set forth herein, all representations and warranties,
covenants and agreements of Sellers and Buyer contained in or made pursuant to
this Agreement or in any certificate furnished pursuant hereto shall survive
the Closing Date and shall remain in full force and effect for a period of
twelve (12) months after the Closing Date, except that (a) any representation,
warranty, covenant or agreement that is the subject of a claim which is
asserted by the party seeking indemnification hereunder in a reasonably
detailed writing delivered to the other party or parties, as the case may be,
prior to the expiration of such twelve-month period shall survive with respect
to such claim or dispute until the final resolution thereof, and (b) the
following covenants and agreements shall continue in full force and effect
until fully discharged: Sections 6.3 and 7.1 (which relate to confidentiality),
Sections 6.2.8 and 7.3 (which relate to access), Section 8.4 (which relates to
employee matters), and Article 15 (which relates to miscellaneous matters). No
claim for indemnification may be made pursuant to this Article 12 after the
survival period set forth in this Section 12.1.
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12.2. INDEMNIFICATION BY SELLERS.
Subject to the conditions and provisions of Section 12.4 and
Section 12.5, from and after the Closing Date, Sellers and the WTOV Seller,
jointly and severally, agree to indemnify, defend and hold harmless Buyer, the
WTOV Buyer, and their respective officers, directors, employees, agents and
shareholders ("Buyer Indemnified Parties") from and against and in any respect
of any and all Losses, asserted against, resulting to, imposed upon or incurred
by any Buyer Indemnified Parties, directly or indirectly, by reason of or
resulting from: (a) any failure by Seller to pay, perform or discharge any
Liabilities of Seller not expressly assumed by Buyer pursuant hereto or pursuant
to any Buyer Document; (b) the business or operations of the Stations during the
period on or prior to the Closing Date (except to the extent Buyer has expressly
assumed the Liability for any such Losses pursuant hereto); (c) any
misrepresentation or breach of the representations and warranties of Sellers
contained in or made pursuant to this Agreement or any other Seller Document; or
(d) any breach by Sellers of any covenants of Sellers contained in or made
pursuant to this Agreement or any other Seller Document. Subject to the
limitations on indemnification set forth in Article 12 of the WTOV Purchase
Agreement, Sellers hereby agree for the benefit of the Buyer Indemnified Parties
to be jointly and severally liable with the WTOV Seller for any indemnification
obligations of the WTOV Seller set forth in Article 12 of the WTOV Purchase
Agreement.
12.3. INDEMNIFICATION BY BUYER.
Subject to the conditions and provisions of Section 12.4 and
Section 12.5, from and after the Closing Date, Buyer and the WTOV Buyer, jointly
and severally hereby agrees to indemnify, defend and hold harmless Seller, the
WTOV Seller, and their respective officers, directors, employees, agents and
partners ("Seller Indemnified Parties") from, against and with respect of any
and all Losses, asserted against, resulting to, imposed upon or incurred by any
Seller Indemnified Parties, directly or indirectly, by reason of or resulting
from: (a) any failure by Buyer to pay, perform or discharge any Liabilities
expressly assumed by Buyer pursuant hereto or pursuant to any Buyer Document;
(b) the business or operations of the Stations during the period after the
Closing Date; (c) any misrepresentation or breach of the representations and
warranties of Buyer contained in or made pursuant to this Agreement or any other
Buyer Document; or (d) any breach by Buyer of any covenants of Buyer contained
in or made pursuant to this Agreement or any other Buyer Document. Subject to
the limitations on indemnification set forth in Article 12 of the WTOV Purchase
Agreement, Buyer hereby agrees for the benefit of the Seller Indemnified Parties
to be jointly and severally liable with the WTOV Buyer for any indemnification
obligations of the WTOV Buyer set forth in Article 12 of the WTOV Purchase
Agreement.
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12.4. LIMITATIONS ON INDEMNIFICATION
12.4.1. Notwithstanding any other provision of this Agreement to the
contrary, in no event shall Losses include a party's incidental, consequential
or punitive damages, regardless of the theory of recovery. Each party hereto
agrees to use reasonable efforts to mitigate any Losses which form the basis
for any claim for indemnification hereunder.
12.4.2. Neither the Jupiter/▇▇▇▇▇ Sellers (taken as a whole) nor the
HMTF/▇▇▇▇▇ Buyers (taken as a whole) shall be liable to the other in respect of
any indemnification hereunder except to the extent that the aggregate Losses of
the party to be indemnified under this Agreement and under the Three-Station
Agreement (taken as a whole) exceeds Two Hundred Fifty Thousand Dollars
($250,000) (the "Basket Amount"), and then only to the extent of the excess
over the Basket Amount; provided, however, the Basket Amount and the
limitations set forth in Section 12.4.3 shall not be applicable to (a) any
Losses incurred by any Seller Indemnified Party in connection with Buyer's
failure to comply with the covenants, agreements and indemnities set forth in
Section 2.8.1 or Section 8.4, or (b) any amounts owed in connection with the
Final Net Working Capital Amount.
12.4.3. Notwithstanding any other provision of this Agreement to the
contrary (other than Section 12.4.2), the Buyer acknowledges and agrees as
follows: (a) the maximum aggregate liability of the Jupiter/▇▇▇▇▇ Sellers
(taken as a whole) pursuant to this Agreement and the WTOV Purchase Agreement
(taken as a whole) to the Buyer Indemnified Parties and any third parties for
any and all Losses shall not exceed the Indemnity Escrow Amount, regardless of
whether the Buyer Indemnified Parties seek indemnification pursuant to this
Article 12 or Article 12 of the WTOV Purchase Agreement, regardless of the form
of action, whether in contract or tort, including negligence, and regardless of
whether or not the Jupiter/▇▇▇▇▇ Sellers are notified of the possibility of
damages to the Buyer Indemnified Parties or any other third party, and (b) any
indemnification payments by Sellers pursuant to this Article 12 shall be solely
payable from the funds held by the Indemnity Escrow Agent pursuant to the
Indemnity Escrow Agreement; provided, however, nothing in this Section 12.4.3
shall be construed to constitute a waiver or limitation of any claims by Buyer
based on fraud.
12.4.4. Each party (a "recipient party") shall notify the other
party (the "representing party") reasonably promptly of any perceived breach by
the representing party of which the recipient party has knowledge of any
representations and warranties, covenants, and agreements and of any Losses
(including a brief description of the same) of the recipient party caused
thereby. In the event of any breach that is cured prior to the Closing Date in
accordance with the terms of this Agreement, the representing party shall have
no obligation under Section 12.2 or Section 12.3 or otherwise to indemnify the
recipient party with respect to such Losses.
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12.5. CONDITIONS OF INDEMNIFICATION.
The obligations and liabilities of Sellers and of Buyer hereunder
with respect to their respective indemnities pursuant to this Section 12,
resulting from any Losses, shall be subject to the following terms and
conditions:
12.5.1. The party seeking indemnification (the "Indemnified Party")
must give the other party or parties, as the case may be (the "Indemnifying
Party"), notice of any such Losses promptly after the Indemnified Party receives
notice thereof; provided that the failure to give such notice shall not affect
the rights of the Indemnified Party hereunder except to the extent that the
Indemnifying Party shall have suffered actual damage by reason of such failure.
12.5.2. The Indemnifying Party shall have the right to undertake, by
counsel or other representatives of its own choosing (reasonably acceptable to
the Indemnified Party), the defense of such Losses at the Indemnifying Party's
risk and expense.
12.5.3. In the event that the Indemnifying Party shall elect not to
undertake such defense, or, within a reasonable time after notice from the
Indemnified Party of any such Losses, shall fail to defend, the Indemnified
Party (upon further written notice to the Indemnifying Party) shall have the
right to undertake the defense, compromise or settlement of such Losses, by
counsel or other representatives of its own choosing, on behalf of and for the
account and risk of the Indemnifying Party (subject to the right of the
Indemnifying Party to assume defense of such Losses at any time prior to
settlement, compromise or final determination thereof (with counsel reasonably
acceptable to the Indemnified Party)). In such event, the Indemnifying Party
shall pay to the Indemnified Party, in addition to the other sums required to
be paid hereunder, the costs and expenses incurred by the Indemnified Party in
connection with such defense, compromise or settlement as and when such costs
and expenses are so incurred.
12.5.4. Anything in this Section 12.5 to the contrary
notwithstanding, (a) if there is a reasonable probability that Losses may
materially and adversely affect the Indemnified Party other than as a result of
money damages or other money payments, the Indemnified Party shall have the
right, at its own cost and expense, to participate in the defense, compromise or
settlement of the Losses, (b) the Indemnifying Party shall not, without the
Indemnified Party's written consent, settle or compromise any Losses or consent
to entry of any judgment which does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified Party of a
release from all liability in respect of such Losses in form and substance
satisfactory to the Indemnified Party, and (c) in the event that the
Indemnifying Party undertakes defense of any Losses, the Indemnified Party, by
counsel or other representative of its own choosing and at its sole cost and
expense, shall have the right to consult with the Indemnifying
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Party and its counsel or other representatives concerning such Losses and the
Indemnifying Party and the Indemnified Party and their respective counsel or
other representatives shall cooperate with respect to such Losses (d) in the
event that the Indemnifying Party undertakes defense of any Losses, the
Indemnifying Party shall have an obligation to keep the Indemnified Party
informed of the status of the defense of such Losses and furnish the
Indemnified Party with all documents, instruments and information that the
Indemnified party shall reasonably request in connection therewith, and (e) in
the event that both the Indemnified Party and the Indemnifying Party are
parties (directly or through interpleader) to any Losses giving rise to
indemnification hereunder and the Indemnified Party is advised by counsel that
there is or may be a conflict of interest in the representation of both the
Indemnified Party and the Indemnifying Party by one firm of counsel, the
Indemnified Party shall be entitled to assume, at the sole cost and expense of
the Indemnifying Party, the defense, compromise and settlement (subject to
clause (b) above) of such Loss with counsel (in addition to local counsel)
reasonably satisfactory to the Indemnifying Party.
12.5.5 In the event that an Indemnified Party has a good faith
basis for a claim for indemnification which does not involve a claim against it
by a third party (a "Direct Claim"), the Indemnified Party shall notify the
Indemnifying Party in writing of such Direct Claim with reasonable promptness,
specifying, to the extent known, the nature, circumstances and amount of such
Direct Claim (a "Direct Claim Notice"), including with particularity the
specific representation and warranty or covenant and agreement alleged to have
been breached. If the Indemnifying Party notifies the Indemnified Party that it
disputes an Indemnified Party's right of indemnification with respect to a
particular Direct Claim, the parties shall use their reasonable efforts to
negotiate a resolution of such dispute promptly. Except to the extent of the
limitations on indemnification set forth in this Article 12, nothing in this
Section 12.5.5 shall be deemed to prevent any Indemnified Party from initiating
litigation under this Agreement with respect to any Direct Claim disputed by the
Indemnifying Party for the purpose of establishing the Indemnified Party's right
to indemnification hereunder.
12.6. CURE OF BREACH
Notwithstanding any other provision of this Agreement to the
contrary, a breach by Sellers of any representations and warranties or a failure
to perform any covenant or agreement hereunder may be cured prior to the Closing
Date by Sellers (a) by reducing the Purchase Price in an amount equal to the
Losses to Buyer caused by such breach, (b) by making payment to a third party or
taking other action to discharge the Losses, (c) by placing an amount equal to
the Losses in an escrow account under an escrow arrangement reasonably
satisfactory to Sellers and Buyer, or (d) a combination of the foregoing. If
the foregoing actions fully cure the breach, Sellers shall have no obligation
under Section 12.2 or otherwise to
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indemnify Buyer with respect to the Losses caused by such breach; if such
actions partially cure the breach, Sellers shall continue to have an obligation
under Section 12.2 to indemnify Buyer with respect to the remaining portion of
the Losses caused by such breach.
ARTICLE 13.
TERMINATION
13.1. TERMINATION
This Agreement may be terminated at any time prior to the Closing
by:
13.1.1. the mutual consent of Sellers and Buyer;
13.1.2. either Buyer or Sellers, by written notice of termination
delivered to the other, if (a) the FCC Order for the Stations has not become a
Final Order and/or the Closing has not occurred within nine (9) months after
the date of this Agreement; provided, however, that the failure of the FCC
Order to become Final Order or the failure of the Closing to have occurred
within nine (9) months of the date of this Agreement shall not be attributable
to the breach of this Agreement by the party seeking termination pursuant to
this Section 13.1.2, and provided, further, that Buyer's right to terminate
this Agreement pursuant to this Section 13.1.2 shall be subject to the Sellers'
rights to extend the Closing Date pursuant to Section 8.2 and the rights of the
WTOV Seller to extend the Closing Date under the WTOV Purchase Agreement
pursuant to Section 8.2 thereof, or (b) the FCC designates the applications
contemplated by Section 5.1 for an evidentiary hearing.
13.1.3. either Buyer or Sellers in the event that any court or
Governmental Authority of competent jurisdiction shall issue a final,
non-appealable injunction prohibiting the transactions contemplated by this
Agreement; provided, however, that the issuance of such final, non-appealable
injunction shall not be attributable to the breach of this Agreement by the
party seeking termination pursuant to this Section 13.1.3.
13.1.4. either Buyer or Sellers in accordance with the terms and
conditions of Article 14.
13.1.5. Buyer, by written notice of termination delivered to
Sellers, in the event that the WTOV Buyer has terminated the WTOV Purchase
Agreement pursuant to the terms thereof; or
13.1.6. Sellers, by written notice of termination delivered to
Buyer, in the event that the WTOV Seller has terminated the WTOV Purchase
Agreement pursuant to the terms thereof.
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13.2. EFFECT OF TERMINATION
13.2.1 In the event this Agreement is terminated as provided in
Sections 13.1.1, 13.1.2 and 13.1.3, Buyer shall receive the immediate return of
the Deposit and this Agreement shall be deemed null, void and of no further
force or effect, and the parties hereto shall be released from all future
obligations hereunder; provided, however, that the obligations of Buyer and
Sellers set forth in Sections 6.3 and 7.1 (which relate to confidentiality), and
Section 15.3 (which relates to payment of certain expenses), shall survive such
termination and the parties hereto shall have any and all remedies to enforce
such obligations provided at law or in equity or otherwise (including, without
limitation, specific performance).
13.2.2 In the event this Agreement is terminated as provided in
Section 13.1.4, this Agreement shall be deemed null, void and of no further
force or effect, and the parties hereto shall be released from all future
obligations hereunder; provided, however, that the obligations of Buyer and
Sellers set forth in Sections 6.3 and 7.1 (which relate to confidentiality), and
Section 15.3 (which relates to payment of certain expenses), shall survive such
termination and the parties hereto shall have any and all remedies to enforce
such obligations provided at law or in equity or otherwise (including, without
limitation, specific performance), and (b) Article 14 (which relates to remedies
and return of the Deposit) shall survive such termination and the parties shall
have such remedies as are set forth in Article 14.
13.2.3 In the event this Agreement is terminated as provided in
Sections 13.1.5 or 13.1.6, this Agreement shall be deemed null, void and of no
further force or effect, and the parties hereto shall be released from all
future obligations hereunder; provided, however, that (a) if the WTOV Agreement
was terminated by the WTOV Buyer or the WTOV Sellers pursuant to Sections
13.1.1, 13.1.2 or 13.1.3 thereof, Buyer shall receive the immediate return of
the Deposit and the obligations of Buyer and Sellers set forth in Sections 6.3
and 7.1 (which relate to confidentiality), and Section 15.3 (which relates to
payment of certain expenses), shall survive the termination of this Agreement
and the parties hereto shall have any and all remedies to enforce such
obligations provided at law or in equity or otherwise (including, without
limitation, specific performance), and (b) if the WTOV Agreement was terminated
by the WTOV Buyer or the WTOV Sellers pursuant to Sections 13.1.4 thereof, the
obligations of Buyer and Sellers set forth in Sections 6.3 and 7.1 (which relate
to confidentiality), and Section 15.3 (which relates to payment of certain
expenses), shall survive the termination of this Agreement and the parties
hereto shall have any and all remedies to enforce such obligations provided at
law or in equity or otherwise (including, without limitation, specific
performance), and (ii) Article 14 (which relates to remedies and return of the
Deposit) shall survive such termination and the parties shall have such remedies
as are set forth in Article 14.
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ARTICLE 14.
REMEDIES
14.1. DEFAULT BY BUYER.
If Buyer shall default in the performance of its obligations under
this Agreement, or if, as a result of Buyer's action or failure to act, the
conditions precedent to Sellers' obligation to close specified in Section 10 are
not satisfied, and for such reason or reasons this Agreement is not consummated,
and provided that Sellers shall not then be in default in the performance of
Sellers' obligations hereunder, Sellers shall be entitled, by written notice to
Buyer, to terminate this Agreement, and as Sellers' sole remedy under this
Agreement, to receive the Deposit as liquidated damages, and upon such payment
Buyer shall be discharged from all further liability under this Agreement,
provided, however, Buyer shall have a period of ten (10) business days after
receipt of Seller's written termination notice to cure any such default and if
Buyer cures such default within such ten (10) business day period, Seller shall
have no right to terminate this Agreement based on such default.
14.2. FINAL ORDER DELAY BY BUYER.
In the event that a Final Order is not obtained prior to the date
which is nine (9) months from the date of this Agreement and such failure is
primarily attributable to (a) Buyer's default under, or breach of, any of the
terms of this Agreement, including, without limitation, a breach of Buyer's
representations and warranties contained in Section 4.6 and Buyer's agreements
contained in Section 15.6, and/or (b) any of (i) Buyer's capitalization, (ii)
Buyer's ownership structure, (iii) Buyer's proposed or intended operation of any
of the Stations, or (iv) any other media interest of Buyer or any affiliate of
Buyer, Sellers shall be entitled, by written notice to Buyer, to terminate this
Agreement, and as Sellers' sole remedy under this Agreement, to receive the
Deposit as liquidated damages, and upon such payment Buyer shall be discharged
from all further liability under this Agreement; provided, however, Sellers
shall not have the right to terminate this Agreement pursuant to this Section
14.2 if the failure to obtain a Final Order is also attributable to Sellers'
default under, or breach of, any of the terms of this Agreement or to the
operation of the Stations by Sellers prior to the Closing.
14.3. DEFAULT BY SELLER.
If Sellers shall default in the performance of Sellers' obligations
under this Agreement, or if, as a result of Sellers' action or failure to act,
the conditions precedent to Buyer's obligation to close specified in Section 9
are not satisfied, and for such reason or reasons this Agreement is not
consummated, and provided that Buyer shall not then be in default in the
performance of Buyer's
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56
obligations hereunder, Buyer shall be entitled, by written notice to Sellers,
to terminate this Agreement, to receive the immediate return of the Deposit,
and to pursue any other remedies Buyer has at law or in equity or otherwise,
provided, however, Sellers shall have a period of ten (10) business days after
receipt of Buyer's written termination notice to cure any such default and if
Sellers cure such default within such ten (10) business day period, Buyer shall
have no right to terminate this Agreement based on such default.
14.4. LIQUIDATED DAMAGES.
Sellers and Buyer have provided for the amount of the Deposit to be
liquidated damages as a remedy for Sellers after having considered carefully
the anticipated and actual ▇▇▇▇▇ and losses that would be incurred if Buyer
defaults and thus fails to perform its obligations to consummate the
transactions contemplated hereunder, the difficulty of ascertaining at this
time the actual amount of damages, special and general, that Sellers will
suffer in such event, and the inconvenience or nonfeasibility of otherwise
obtaining an adequate remedy in such event.
14.5. SPECIFIC PERFORMANCE.
Sellers hereby acknowledge that the Assets are unique, and that the
harm to Buyer resulting from Sellers failure to perform their obligations
hereunder cannot be adequately compensated by damages. Accordingly, Sellers
agree that Buyer shall have the right to have all obligations, undertakings,
agreements, covenants and other provisions of this Agreement specifically
performed by Sellers.
ARTICLE 15.
GENERAL PROVISIONS
15.1. ADDITIONAL ACTIONS, DOCUMENTS AND INFORMATION.
Buyer agrees that it will, at any time, prior to, at or after the
Closing Date, take or cause to be taken such further actions, and execute,
deliver and file or cause to be executed, delivered and filed such further
documents and instruments and obtain such consents, as may be reasonably
requested by Sellers in connection with the consummation of the purchase and
sale contemplated by this Agreement. Sellers agree that it will, at any time,
prior to, at or after the Closing Date, take or cause to be taken such further
actions, and execute, deliver and file or cause to be executed, delivered and
filed such further documents and instruments and obtain such consents, as may be
reasonably requested by Buyer in connection with the consummation of the
purchase and sale contemplated by this Agreement, including, without limitation,
taking such further actions (at Buyer's sole cost and expense) to enforce
Sellers' rights, if any, under purchase agreements with previous owners of
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57
the Stations to require such previous owners to execute, deliver and file such
further documents and instruments and obtain such consents as may be reasonably
requested by Buyer in connection with the consummation of the purchase and sale
contemplated by this Agreement.
15.2. BROKERS.
Sellers represent to Buyer that, except for the brokerage fees
payable to Sellers' Broker (which fees are solely the responsibility of
Sellers), Sellers have not engaged, or incurred any unpaid liability (for any
brokerage fees, finders' fees, commissions or otherwise) to, any broker, finder
or agent in connection with the transactions contemplated by this Agreement;
Buyer represents to Sellers that, except for the fees payable to Buyer's Advisor
(which fees are the sole responsibility of Buyer), Buyer has not engaged, or
incurred any unpaid liability (for any brokerage fees, finders' fees,
commissions or otherwise) to, any broker, finder or agent in connection with the
transactions contemplated by this Agreement; and Sellers agree to indemnify
Buyer, and Buyer agrees to indemnify Sellers, against any claims asserted
against the other parties for any such fees or commissions by any person
purporting to act or to have acted for or on behalf of the indemnifying party.
Notwithstanding any other provision of this Agreement, this representation and
warranty shall survive the Closing without limitation and shall not be subject
to the Basket Amount contained in Section 12.4.2 or the limitations of Section
12.4.3.
15.3. EXPENSES AND TAXES.
Each party hereto shall pay its own expenses incurred in connection
with this Agreement and in the preparation for and consummation of the
transactions provided for herein. Notwithstanding the foregoing, (a) Buyer
shall pay all sales (including, without limitation, bulk sales), use,
documentary, stamp, gross receipts, registration, transfer, conveyance, excise,
recording, license and other similar Taxes and fees ("Transfer Taxes")
applicable to, imposed upon or arising out of the transactions contemplated
hereby whether now in effect or hereinafter adopted and regardless of which
party such Transfer Tax is imposed upon, (b) Sellers and Buyer shall each pay
one-half of any FCC filing fees incurred in connection with the assignment of
the FCC Licenses, and (c) Buyer shall pay any fees and expenses incurred in
connection with any HSR Filings.
15.4. NOTICES.
All notices, demands, requests, or other communications which may
be or are required to be given or made by any party to any other party pursuant
to this Agreement shall be in writing and shall be hand delivered, mailed by
first-class registered or certified mail, return receipt requested, postage
prepaid, delivered by
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58
overnight air courier, or transmitted by telegram, telex, or facsimile
transmission addressed as follows:
If to Buyer:
HMTF Acquisition Corp.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Sellers:
▇▇▇▇▇ Broadcasting Partners, L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
Jupiter/▇▇▇▇▇ TV Holdings, L.P.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy (which shall not constitute notice) to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as the addressee may indicate by written notice to the
other parties.
Each notice, demand, request, or communication which shall be given or
made in the manner described above shall be deemed sufficiently given or made
for all purposes at such time as it is delivered to the addressee (with the
return receipt, the delivery receipt, the affidavit of messenger or (with
respect to a telex) the answerback being deemed conclusive but not exclusive
evidence of such delivery) or at such time as delivery is refused by the
addressee upon presentation.
15.5. WAIVER.
No delay or failure on the part of any party hereto in exercising any
right, power or privilege under this Agreement or under any other instrument or
document given in connection with or pursuant to this Agreement shall impair
any such right, power or privilege or be construed as a waiver of any default
or any acquiescence therein. No single or partial exercise of any such right,
power or privilege shall preclude the further exercise of such right, power or
privilege, or the exercise of any other right, power or privilege. No waiver
shall be valid against any party hereto unless made in writing and signed by
the party against whom enforcement of such waiver is sought and then only to
the extent expressly specified therein.
15.6. BENEFIT AND ASSIGNMENT.
(a) No party hereto shall assign this Agreement, in whole or in part,
whether by operation of law or otherwise, without the prior written consent of
the other party hereto; provided, however, upon written notice to Sellers,
Buyer may assign all or any portion of Buyer's rights and obligations under
this Agreement to one or more Permitted Assignees, provided, that (i) prior to
or concurrently with such assignment, Buyer shall have represented, warranted
and certified to Sellers in writing that (A) there are no facts or proceedings
which would reasonably be expected to disqualify any such Permitted Assignee
under the Communications Act or under the rules and regulations of the FCC from
acquiring or operating any of the Stations or would cause the FCC not to
approve the
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60
assignment of the FCC Licenses to any such Permitted Assignee, (B) Buyer has no
knowledge of any fact or circumstance relating to any such Permitted Assignee
or any of any such Permitted Assignee's affiliates that would reasonably be
expected to (1) cause the filing of any objection to the assignment of the FCC
Licenses to any such Permitted Assignee, or (2) lead to a delay in the
processing by the FCC of the applications for such assignment, and (C) no
waiver of an FCC rule or policy is necessary to be obtained for the grant of
the applications for the assignment of the FCC Licenses to any such Permitted
Assignee, nor will processing pursuant to any exception or rule of general
applicability be requested or required in connection with the consummation of
the transactions herein, (ii) prior to or concurrently with such assignment,
each such Permitted Assignee shall assume in writing all of Buyer's obligations
to Sellers, and each such Permitted Assignee shall deliver to Sellers a
certificate representing and warranting to Sellers as to the matters set forth
in Article 4, (iii) notwithstanding such assumption, Buyer shall not be
released from any liabilities or obligations hereunder, (iv) Buyer and any such
Permitted Assignee shall be jointly and severally liable for the liabilities or
obligations of Buyer and any such Permitted Assignee hereunder (including,
without limitation, any obligation pursuant to Article 12 hereof), and (v) such
assignment shall not cause a delay in the receipt of the FCC Order or the Final
Order. Buyer may also assign, subject to compliance with the provisions of
this Section 15.6, Buyer's right to acquire the FCC Licenses from Sellers to a
wholly-owned subsidiary of Buyer
(b) From and after the Closing Date, without releasing Buyer from any of
Buyer's obligations hereunder, nothing herein shall prevent or limit Buyer from
making a collateral assignment of Buyer's rights under this Agreement to any
institutional lender that, directly or indirectly, provides funds to Buyer
without the consent of the Sellers. Sellers shall execute an acknowledgment of
such collateral assignments in such forms as Buyer or Buyer's institutional
lenders may reasonably request; provided, however, that unless written notice
is given to Sellers that any such collateral assignment has been foreclosed
upon (in compliance with the Communications Act and the rules and regulations
of the FCC), Sellers shall be entitled to deal exclusively with Buyer as to any
matters arising under this Agreement or any of the other agreements delivered
pursuant hereto.
(c) Any purported assignment contrary to the terms hereof shall be null,
void and of no force and effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns as permitted hereunder. No Person, other than the
parties hereto, is or shall be entitled to bring any action to enforce any
provision of this Agreement against any of the parties hereto, and the
covenants and agreements set forth in this Agreement shall be solely for the
benefit of, and shall be enforceable only by, the parties hereto or their
respective successors and assigns as permitted hereunder.
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15.7. ENTIRE AGREEMENT; AMENDMENT.
This Agreement, including the Schedules and Exhibits hereto and the other
instruments and documents referred to herein or delivered pursuant hereto
including, without limitation, that certain side letter agreement dated as of
the date hereof between Buyer and Sellers with respect to preparation of
financial statements, contains the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior oral or written
agreements, commitments or understandings with respect to such matters. No
amendment, modification or discharge of this Agreement shall be valid or
binding unless set forth in writing and duly executed by the party or parties
against whom enforcement of the amendment, modification or discharge is sought.
15.8. SEVERABILITY.
If any part of any provision of this Agreement or any other contract,
agreement, document or writing given pursuant to or in connection with this
Agreement shall be invalid or unenforceable under applicable law, such part
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provisions or the
remaining provisions of said contract, agreement, document or writing.
15.9. HEADINGS.
The headings of the sections and subsections contained in this Agreement
are inserted for convenience only and do not form a part or affect the meaning,
construction or scope thereof.
15.10. GOVERNING LAW; JURISDICTION.
This Agreement, the rights and obligations of the parties hereto, and any
claims or disputes relating thereto, shall be governed by and construed under
and in accordance with the laws of the state of New York, excluding the choice
of law rules thereof. The parties hereto hereby irrevocably consent to the
nonexclusive jurisdiction and venue of the courts of the State of New York and
of any Federal Court located in New York County, New York, in connection with
any action, suit or proceeding arising out of or relating to this Agreement.
The parties hereto hereby waive personal service of any process in connection
with any such action, suit or proceeding and agree that the service thereof may
be made by certified or registered mail addressed to or by personal delivery to
the other party, at such other party's address set forth pursuant to Section
15.4 hereof. In the alternative, in its discretion, any of the parties hereto
may effect service upon any other party in any other form or manner permitted
by law.
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15.11. SIGNATURE IN COUNTERPARTS.
This Agreement may be executed in separate counterparts, none of which
need contain the signatures of all parties, each of which shall be deemed to be
an original, and all of which taken together constitute one and the same
instrument. It shall not be necessary in making proof of this Agreement to
produce or account for more than the number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
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63
IN WITNESS WHEREOF, each of the parties hereto has executed this Asset
Purchase Agreement, or has caused this Asset Purchase Agreement to be duly
executed and delivered in its name on its behalf, all as of the day and year
first above written.
▇▇▇▇▇ TELEVISION OF MICHIGAN, L.P.
By:
▇▇▇▇▇ Broadcasting Partners, L.P., its
general partner
By:
▇▇▇▇▇ Broadcasting Group, Inc., its
general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇ TELEVISION OF ROCHESTER, L.P.
By: ▇▇▇▇▇ Broadcasting Partners, L.P., its
general partner
By: ▇▇▇▇▇ Broadcasting Group, Inc., its
general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇ TELEVISION OF SALINAS-MONTEREY, L.P.
By: ▇▇▇▇▇ Broadcasting Partners, L.P., its
general partner
By: ▇▇▇▇▇ Broadcasting Group, Inc., its
general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
- ▇▇ -
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ LICENSE, L.P.
By: ▇▇▇▇▇ Television of Michigan, L.P.,
its general partner
By: ▇▇▇▇▇ Broadcasting Partners, L.P., its
general partner
By: ▇▇▇▇▇ Broadcasting Group, Inc., its
general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇ TELEVISION OF ROCHESTER LICENSE, L.P.
By: ▇▇▇▇▇ Television of Rochester, L.P.,
its general partner
By: ▇▇▇▇▇ Broadcasting Partners, L.P., its
general partner
By: ▇▇▇▇▇ Broadcasting Group, Inc., its
general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
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65
▇▇▇▇▇ TELEVISION OF SALINAS-MONTEREY
LICENSE, L.P.
By: ▇▇▇▇▇ Television of Salinas-Monterey,
L.P., its general partner
By: ▇▇▇▇▇ Broadcasting Partners, L.P., its
general partner
By: ▇▇▇▇▇ Broadcasting Group, Inc., its
general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
STV ACQUISITION COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title: Vice President
-------------------------------------
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