ASSET PURCHASE AGREEMENT by and between VILLAGE BROADCASTING CORP. and THOMAS WERNER FOR THE SALE AND PURCHASE OF BROADCAST EQUIPMENT
EXHIBIT
10.11
by
and between
VILLAGE
BROADCASTING CORP.
and
▇▇▇▇▇▇
▇▇▇▇▇▇
FOR
THE SALE AND PURCHASE OF
BROADCAST
EQUIPMENT
THIS
ASSET PURCHASE
AGREEMENT (“Agreement”), made and entered into as of this 12th day of
November, 2007, by and between VILLAGE BROADCASTING COMPANY, a
corporation organized under the laws of the State of California (“Seller”),
and ▇▇▇▇▇▇ ▇▇▇▇▇▇, a resident of the State of California
(“Buyer”).
W
I T N E S S E T H:
WHEREAS,
Seller
holds certain equipment for the operation of a low-power television station;
and
WHEREAS,
Seller
desires to sell and/or assign, and Buyer desires to purchase and/or assume
certain of the assets, property and business used in the operation of the
Station; and
NOW,
THEREFORE, the
parties, intending to be legally bound, agree as follows:
SECTION
1
ASSETS
TO BE SOLD
1.1 On
the Closing Date, Seller shall sell, assign, transfer, convey, set over, and
deliver to Buyer, and Buyer shall purchase and/or accept assignment of the
following (hereinafter collectively the “Equipment”) free and clear of any
security interests, claims, encumbrances, liens or liabilities:
1.1.4 Equipment. All
of the equipment used and useful in the operation of the Station.
SECTION
2
PURCHASE
PRICE
2.1 Purchase
Price. In consideration of Seller’s
performance of this Agreement, the Equipment shall be Eleven Thousand Five
Hundred Dollars (US$11,500.00). Payment shall be made as
follows: $5,000 paid upon execution of this Agreement, and the
remainder at closing, on or before November 30, 2007.
SECTION
3
ASSUMPTIONS
3.1 Liabilities. The
Equipment shall be sold and conveyed to Buyer free and clear of all liabilities
(absolute or contingent), obligations, liens (including tax, mechanics’ and
materialmen’s liens), pledges, conditional sales agreements, charges, mortgages,
security interests, encumbrances and restrictions of any type or amount created
or suffered by Seller prior to the Closing Date, whether existing now or in
the
future.
3.2 Buyer’s
Assumed Obligations. Except as specifically assumed by
Buyer in this Agreement, Buyer is not agreeing to, and shall not, assume any
liability, obligation, undertaking, expense or agreement of Seller of any kind,
absolute or contingent, known or unknown, and the execution and performance
of
this Agreement shall not render Buyer liable for any such liability, obligation,
undertaking, expense or agreement. With respect to any of Seller’s
obligations, following Closing, Buyer only shall be obligated
and discharge unperformed duties of the Seller to the extent they specifically
are assumed by Buyer, and even then, only to the extent such duties or
obligations first accrue after the Closing Date.
3.3 Seller’s
Liability. Seller shall remain liable
for, and covenants to pay, satisfy, or discharge when due, all Excluded
Obligations and all liabilities, payments, obligations, and duties under the
Agreements or other instruments transferred or assigned to Buyer hereunder,
accruing prior to or by reason of events occurring prior to the
Closing.
SECTION 4
REPRESENTATIONS
WARRANTIES AND COVENANTS OF SELLER
4.1 Seller’s
Best Knowledge. "To the best of
Seller's knowledge" shall mean the actual knowledge of Seller after (i) due
inquiry of all managers, department heads or other similar employee or agent
of
Seller and all attorneys and accountants employed by Seller having
responsibility for or holding a position that reasonably could be expected
to
involve substantial knowledge about the subject matter to which such Seller's
Best Knowledge relates; and (ii) due examination of any documents,
correspondence or other items contained in the files of Seller or the Station
pertaining to such subject matter.
4.2 Standing.
4.2.1 Seller
is now
and on the Closing Date each will be a corporation validly existing and in
good
standing under the laws of the State of California.
4.2.2 Seller
has
the full power and authority to enter into this Agreement and to execute all
of
Seller's Closing Documents that require Seller's signature. The execution,
delivery and performance of this Agreement (as of the date of execution of
this
Agreement and on the Closing Date) and the Seller's Closing Documents (on the
Closing Date) are or will be authorized by all necessary actions of the
Seller.
4.3 Binding
Effect of Agreement. The execution, delivery and
performance of this Agreement (as of the date of execution of this Agreement
and
on the Closing Date) and the Seller’s Closing Documents (on the Closing Date)
are or will be authorized by all necessary actions of Seller. This
Agreement constitutes a valid and binding obligation of Seller enforceable
against Seller in accordance with the terms of this Agreement. Upon
execution, the Seller’s Closing Documents will constitute valid and binding
obligations of Seller enforceable against Seller in accordance with their terms
except as may be limited by laws affecting the enforcement of creditor’s rights
or equitable principles generally. The execution, delivery, and
performance of this Agreement or any of the Closing Documents do not violate
Seller’s Articles of Incorporation or By-Laws, or any provisions of any contract
provision or other commitment to which Seller or the Station is a party or
under
which it or its property is bound, or any judgment or order of which Seller
has
received notice, and will not result in the creation or imposition of any lien,
charge, security interest, or encumbrance of any nature whatsoever upon any
of
the Equipment.
4.4 Real
and Tangible Personal Property.
4.4.1 Equipment. At
Closing, the Equipment shall be transferred "as is, where is." Seller
shall, at Closing, give good, clear, marketable, and indefeasible title to
all
of the Equipment being transferred hereunder free and clear of all liens,
charges, encumbrances, restrictions, debts, demands, or claims of any kind
or
nature whatsoever, “as is, where is,” with no warranties as to condition or
operability.
4.5 Litigation.
4.5.1 Litigation;
Compliance With Law. To the best of
Seller’s Knowledge, the Station is in compliance in all material respects with
all applicable federal, state and local laws, ordinances and regulations,
including compliance with the Communications Act and all rules and regulations
issued thereunder. Except for proceedings affecting segments of the
broadcasting industry in general, there is no complaint, claim, litigation,
investigation, or judicial, administrative, or other proceeding of any nature,
including, without limitation, a grievance, arbitration, or insolvency or
bankruptcy proceeding, pending or, to the best of Seller’s knowledge threatened
against the Station, Seller, or any of the Equipment being sold or transferred
to Buyer, which may (a) adversely affect the Equipment to be assigned hereunder,
(b) restrain or enjoin the Closing or the consummation of the transactions
contemplated hereby. Seller will give Buyer prompt notice of its
discovery of any such basis or the institution or the threat of any such
litigation, investigation, or proceeding. In addition, to Seller’s
knoweldge, no such litigation, investigation, or proceeding has been threatened
which would result in a material adverse effect upon the
Station. Seller is not in default in respect to any judgment, order,
writ, injunction, decree, rule, or regulation of any applicable court or
governmental body, which default could have a materially adverse effect on
the
Equipment.
4.5.2 No
Liabilities Attaching to Buyer. Except
as expressly provided in this Agreement, there are no liabilities of any kind
or
nature whatsoever of Seller that attach or will, after the consummation of
the
transaction contemplated hereby, attach to Buyer.
4.6 No
Untrue Statements or Omission. No representation or
warranty made by Seller in this Agreement or any Schedule, exhibit, statement,
certificate, or other document heretofore or hereafter furnished by Seller,
or
on its behalf, to Buyer and pursuant to this Agreement or in connection with
the
transactions contemplated hereby contains or will contain any knowingly untrue
statement or knowingly omits to state a material fact necessary to make the
statements contained therein not misleading. All representations and
warranties of Seller set forth in this Agreement shall be true, complete and
accurate in all material respects as of the Closing Date as if made on that
date.
SECTION
5
WARRANTIES,
REPRESENTATIONS AND COVENANTS OF BUYER
Buyer
covenants, represents, and
warrants as follows:
5.1 Organization. Buyer
is a resident of the State of California..
5.2 Authorization
and Binding Obligation. Buyer has all
necessary power and authority to enter into this Agreement and to fulfill all
of
Buyer’s Closing Obligations. The execution, delivery and performance
of this Agreement (as of the date of execution of this Agreement and on the
Closing Date) and all of the Buyer’s Closing Obligations (on the Closing Date)
are or will be authorized by all necessary actions of Buyer. This
Agreement constitutes a valid and binding obligation of Buyer enforceable
against Buyer in accordance with the terms of this Agreement. Upon
execution, the execution by Buyer of the documents necessary for consummation
of
this transaction will constitute valid and binding obligations of Buyer,
enforceable against Buyer in accordance with their respective
terms.
5.3 No
Contravention. The execution, delivery, and
performance of this Agreement or any of the Closing Documents do not violate
any
commitment to which Buyer is a party or under which it or its property is bound,
or any judgment or order except as contemplated herein.
5.4 Litigation. Except
for administrative rule making or other proceedings of general applicability
to
the broadcast industry, there is no litigation, proceeding, judgment, claim,
action, investigation or complaint threatened against or affecting it which
would affect Buyer’s authority or ability to carry out this
Agreement.
5.5 No
Untrue Statements or Omission. No
representation or warranty made by Buyer in this Agreement or any Schedule,
exhibit, statement, certificate, or other document heretofore or hereafter
furnished to Seller and pursuant to this Agreement or in connection with the
transaction contemplated hereby contains or will contain any knowingly untrue
statement or knowingly omits to state a material fact necessary to make the
statement contained therein not misleading. All representations and
warranties of Buyer set forth in this Agreement shall be true, complete and
accurate in all material respects as of the Closing Date as if made on that
date.
SECTION
6
CONDITIONS
FOR CLOSING
6.1 Closing. The
Closing of the transactions contemplated by this Agreement (the “Closing”) shall
take place on or before November 25, 2007.
6.2 Conditions
Precedent to Obligations of Buyer. The
obligations of the Buyer under this Agreement are subject to the satisfaction
of
each of the following express conditions precedent (provided that Buyer may,
at
its election, waive any of such conditions on the Closing Date, notwithstanding
that such condition is not fulfilled) on the Closing Date:
6.2.1 Seller
shall have
delivered to Buyer the Seller’s Closing Documents as described in Section 7.1
below.
6.2.2 Each
of the Seller’s
representations and warranties contained in this Agreement or in any Schedule,
certificate, or document delivered pursuant to the provisions hereof, or in
connection with the transactions contemplated hereby, shall be true and correct
in all material respects at and as of the Closing Date with the same force
and
effect as if each such representation or warranty were made at and as of such
time, except in respect of such changes as are contemplated or permitted by
this
Agreement.
6.2.3 Seller
shall have
performed and complied in all material respects with all covenants, agreements
and obligations required by this Agreement to be performed or complied with
by
it prior to the Closing Date and shall be in full compliance therewith on the
Closing Date.
6.2.4 Seller
shall have
taken all internal and other actions necessary to consummate this
transaction.
6.3 Conditions
Precedent to Obligations of Seller. The
performance of the obligations of the Seller under this Agreement is subject
to
the satisfaction of each of the following express conditions precedent, provided
that Seller may, at its election, waive any of such conditions at the Closing,
notwithstanding that such condition is not fulfilled on the Closing
Date:
6.3.1 Each
of Buyer’s
representations and warranties contained in this Agreement or in any certificate
or document delivered pursuant to the provisions hereof, or in connection with
the transactions contemplated hereby, shall be true in all material respects
at
and as of the Closing Date, as though each such representation or warranty
was
made at and as of such time, except in respect of such changes as are
contemplated or permitted by this Agreement.
6.3.2 Buyer
shall have
performed all of the obligations set forth in Section 2 of this Agreement
with respect to the payment of the Purchase Price, together with all other
covenants, agreements and obligations required by this Agreement to be performed
or complied with by it prior to the Closing Date and shall be in full compliance
therewith on the Closing Date.
6.3.3 Buyer
shall have agreed in form reasonably acceptable to Seller to assume all
obligations under the Agreements to be assigned to Buyer arising on or after
the
Closing.
6.4 Failure
of Conditions Precedent to Obligations of
Buyer. In case of the failure of any of
the conditions precedent described in Section 6.2 hereof, and if Seller, after
application of the provisions of Section 10.3 hereof, has failed to cure same,
Buyer shall have the right to terminate this Agreement without liability. In
addition, if the failure of such condition precedent constitutes a material
default by Seller, Buyer shall have the right, at its option, to exercise any
or
all of its rights or remedies for default provided in Section 10
hereof. Buyer shall not be deemed to have waived any failure by
Seller to fulfill any of the conditions precedent described in Section 6.2
if
Buyer does not have actual knowledge of such failure at the time of the
Closing.
6.5 Failure
of Conditions Precedent to Obligations of
Seller. In case of the failure of any
of the conditions precedent described in Section 6.3 hereof, and if Buyer,
after
application of the provisions of Section 10.3 hereof, has failed to cure the
same, Seller shall have the right to terminate this Agreement without
liability. In addition, if the failure of such condition precedent
results from a material default by Buyer, Seller shall have the right, at its
option, to exercise any or all of its rights or remedies for default provided
in
Section 10 hereof. Seller shall not be deemed to have waived any
failure by Buyer to fulfill any of the conditions precedent described in Section
6.3 if Seller does not have actual knowledge of such failure at the time of
the
Closing.
SECTION
7
OBLIGATIONS
AT CLOSING
7.1 Closing
Documents to be Delivered by
Seller. At the Closing for
the Station, Seller shall deliver to Buyer the following (“Seller’s Closing
Documents”):
7.1.1 An
executed ▇▇▇▇ of Sale for the Equipment.
7.1.2 A
certificate executed by an officer of Seller stating that (a) all of the
representations and warranties of Seller set forth in this Agreement are in
all
material respects true, correct, and accurate as of the Closing Date, and (b)
all covenants set forth in this Agreement to be performed by Seller on or prior
to the Closing Date have been performed in all material respects.
7.2 Closing
Documents to be Delivered by Buyer. At
the Closing Buyer shall deliver to Seller the following (“Buyer’s Closing
Obligations”):
7.2.1 A
certificate executed by Buyer stating that: (a) all of the representations
and
warranties of Buyer set forth in this Agreement are in all material respects
true, correct, and accurate as of the Closing Date, and (b) all covenants set
forth in this Agreement to be performed by Buyer on or prior to the Closing
Date
have been performed in all material respects.
SECTION
8
BROKERAGE
Seller
and Buyer each represent and
warrant to the other that it knows of no broker, finder, or intermediary who
has
been involved in the transactions provided for in this Agreement or who might
be
entitled to a fee or commission upon the consummation of such
transactions. Buyer and Seller hereby agree to indemnify each other
from and against any claim of any such obligation or liability by any person,
and any expense incurred in defending against any such claim, including
reasonable attorneys’ fees, that shall have resulted from any conduct, activity,
or action taken, or allegedly taken, by the indemnifying party.
SECTION
9
FEES
AND EXPENSES
Each
party shall pay its own attorneys’
fees and expenses which it initiates, creates, or incurs in connection with
the
negotiation, preparation and execution of this Agreement.
SECTION
10
DEFAULT
AND TERMINATION
10.1 Termination. This
Agreement may be terminated prior to the Closing by either Buyer or Seller
as
the case may be, if the party seeking to terminate is not in material default
or
breach of this Agreement, upon written notice to the other upon the occurrence
of any of the following:
(a) if
the other is in material breach or default of its respective covenants,
agreements, or other obligations herein, or if any of its representations herein
are not true and accurate in all material respects when made or when otherwise
required by this Agreement to be true and accurate, and such breach is not
timely cured as provided in Section 10.3, below;
(b) on
the Closing Date, Seller or Buyer, as the case may be, have failed
to\
comply
with its obligations under Section 6.2 or 6.3 of this Agreement, and does not
cure such failure within the period provided in Section 10.3.
10.2 This
Agreement may be terminated by Seller in the event payment is not made as
required under Section 2.1 of this Agreement.
10.3 A
party shall be in “default” under this Agreement if it makes any material
misrepresentation to the other party in connection with this Agreement, or
materially breaches or fails to perform any of its representations, warranties,
or covenants contained in this Agreement. Non-material breaches or
failures shall not be grounds for declaring a party to be in default, postponing
the Closing, or terminating this Agreement. If either party believes the other
to be in default hereunder, the former party shall provide the other with
written notice specifying in reasonable detail the nature of such
default. If the default is not curable or has not been cured within
fifteen (15) calendar days after delivery of that notice (or such additional
reasonable time as the circumstances may warrant provided the party in default
undertakes diligent, good faith efforts to cure the default within such fifteen
(15) calendar day period and continues such efforts thereafter), then the party
giving such notice may terminate this Agreement and/or exercise the remedies
available to such party pursuant to this Agreement, subject to the right of
the
other party to contest such action through appropriate
proceedings. Notwithstanding the foregoing, in the event of monetary
default, time shall be of the essence, no notice shall be required or cure
period afforded, and this Agreement may be terminated immediately.
SECTION
11
SURVIVAL
OF WARRANTIES
11.1 All
representations and warranties made by the parties in this Agreement shall
be
deemed made for the purpose of inducing the other to enter into this Agreement,
and shall survive the Closing and remain operative and in full force and effect,
for a period of one year following the Closing.
11.2 Neither
the acceptance nor the delivery of property hereunder shall constitute a waiver
of any covenant, representation, warranty, agreement, obligation, undertaking,
or indemnification of Seller or Buyer contained in this Agreement, all of which
shall, unless otherwise specifically provided, survive the Closing hereunder
in
accordance with the terms of this Agreement and shall be binding upon and inure
to the benefit of all of the parties hereto, their heirs, legal representatives,
successors and assigns.
SECTION
12
NOTICES
12.1 All
notices, requests, demands, waivers, consents and other communications required
or permitted hereunder shall be in writing and be deemed to have been duly
given
when delivered in person (against receipt) to the party to be notified at the
address set out below or sent by registered or certified mail, or by express
mail or courier, postage prepaid, return receipt requested, addressed to the
party to be notified, as follows:
If
to Seller:
Village
Broadcasting
Corp.
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇
▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If
to Buyer:
▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either
party may change its address for notices by written notice to the other given
pursuant to this Section. Any notice purportedly given by a means
other than as provided in this Section shall be invalid and shall have no force
or effect.
SECTION
13
MISCELLANEOUS
13.1 Headings. The
headings of the Sections of this Agreement are for convenience of reference
only, and do not form a part thereof, and do not in any way modify, interpret
or
construe the meaning of the sections themselves or the intentions of the
parties.
13.2 Entire
Agreement. This Agreement and any other
agreements entered into contemporaneously herewith set forth the entire
agreement of the parties and are intended to supersede all prior negotiations,
understandings, and agreements and cannot be altered, amended, changed or
modified in any respect or particular unless each such alteration, amendment,
change or modification shall have been agreed to by each of the parties hereto
and reduced to writing in its entirety and signed and delivered by each
party. No provision, condition or covenant of this Agreement shall be
waived by either party hereto except by a written instrument delivered to the
other party and signed by the party consenting to and to be charged with such
waiver.
13.3 Counterparts. This
Agreement may be executed in one or more counterparts, all of which together
shall comprise one and the same instrument.
13.4 Legal
Actions. If either Seller or Buyer
initiates any legal action or lawsuit against the other involving this
Agreement, the prevailing party in such action or suit shall be entitled to
receive reimbursement from the other party for all reasonable attorneys’ fees
and other costs and expenses incurred by the prevailing party in respect of
that
litigation, including any appeal, and such reimbursement may be included in
the
judgment or final order issued in such proceeding. Any award of
damages following judicial remedy or arbitration as a result of the breach
of
this Agreement or any of its provisions shall include an award of prejudgment
interest from the date of the breach at the maximum rate of interest allowed
by
law.
13.4 Governing
Law. The parties agree that this
Agreement and the transaction herein contemplated shall be interpreted,
construed, and enforced under and according to the laws of the State of
California.
13.5 Counsel. Each
party has been represented by its own counsel in connection with the negotiation
and preparation of this Agreement and, consequently, each party hereby waives
the application of any rule of law to the effect that any provision of this
Agreement shall be interpreted or construed against the party whose counsel
drafted that provision.
13.6 Time
is of the Essence. Time shall be of the
essence in this Agreement and the performance of each and every provision
hereof.
13.7 Severability. If
any term or provision of this Agreement or its application shall, to any extent,
is declared to be invalid or unenforceable, the remaining terms and provisions
shall not be affected and shall remain in full force and effect and to such
extent are severable; provided, however, that nothing in this provision shall
impair a party’s rights pursuant to Sections 10 or 13 hereof.
13.8 Choice
of Forum. The parties agree that that the
only and exclusive forum for any action brought to resolve any dispute arising
out of this Agreement shall be the federal or state courts having jurisdiction
over Los Angeles, California. No party shall oppose or assert a
defense against such litigation in said courts on the grounds that the court
lacks personal jurisdiction.
13.9 Cancellation.
Buyer and Seller agree that this Asset Purchase Agreement dated
November 12, 2007 superceeds any previous contract with these
parties.
14.0 Confidentiality. Buyer
and Seller, and their respective employees,agents
and representatives, shall each keep confidential all information obtained
with
respect to the other in connection with the negotiation and performance of
this
Agreement, except where such information is known or available through other
lawful sources or where its disclosure is required in accordance with applicable
law. If the transactions contemplated hereby are not consummated for
any reason. Buyer and Seller, and their respective employees, agents and
representatives, shall return to the other, without retaining a copy thereof,
any written information, including all financial information, obtained from
the
other in connection with this Agreement and the transactions contemplated
hereby, and shall forever preserve the confidentiality of such
information. The parties recognize that a breach of this covenant of
confidentiality may cause substantial, irremediable harm to the other’s business
and therefore agree that injunctive relief would be appropriate to enforce
any
breach of this covenant.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed and executed by their proper individuals or officers thereunto duly
authorized as of the day and year first above written.
| SELLER: | |||
|
VILLAGE
BROADCASTING CORP.
|
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|
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| President | |||
|
BUYER:
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| ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
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By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||