Exhibit 2.1
ASSET PURCHASE AGREEMENT
by and among
Southwest Sports Television, L.P.,
Telemundo of Dallas, LP,
Telemundo of Dallas License Corp.
and
Telemundo Communications Group, Inc.
June 25, 2001
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is made and entered
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into as of this 25th day of June, 2001, by and among Southwest Sports
Television, L.P., a Texas limited partnership ("Seller"), Telemundo of Dallas,
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LP, a Delaware limited partnership ("Purchaser"), Telemundo of Dallas License
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Corp., a Delaware corporation ("Telemundo Licensee"), and Telemundo
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Communications Group, Inc., a Delaware corporation ("Parent" and, together with
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Purchaser and Telemundo Licensee, the "Purchasing Parties"):
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RECITALS
A. Seller holds (a) the licenses, permits, and authorizations
(including without limitation auxiliary broadcast and microwave authorizations),
and applications therefor (collectively, the "FCC Licenses") issued by the
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Federal Communications Commission (the "FCC") in connection with the operation
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of commercial broadcast television station KXTX--TV, Dallas, Texas and
commercial digital broadcast television station KXTX--DT, Dallas, Texas
(collectively, the "Station"), and (b) the other Assets (as defined in Section
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1.1) used in the operation of the Station.
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B. Seller desires to sell to Purchaser, and Purchaser desires to
purchase and acquire, the Assets from Seller for the consideration and upon the
terms and conditions herein provided.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations, and warranties contained in this Agreement, the parties hereto,
intending to be legally bound, do hereby agree as follows:
ARTICLE I
Assets Being Sold and Purchased
and Purchase Price
1.1 Assets to be Acquired. Upon the terms and subject to the
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conditions set forth in this Agreement, Seller agrees to sell, assign, convey,
transfer, and deliver to Purchaser (or, at Purchaser's request, to Telemundo
Licensee) at the Closing (as defined in Section 2.1 hereof), and Purchaser shall
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purchase at the Closing, all of the Seller's right, title, and interest in and
to the tangible and intangible assets (except as expressly provided in Section
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1.2 hereof), owned by, licensed to, or leased to Seller on the Closing Date and
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used, or held for use, in connection with the operation of the Station
(collectively, the "Assets"), including but not limited to:
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(a) The FCC Licenses and all licenses, permits or
authorizations, if any, issued by the Federal Aviation Administration (the
"FAA"), any other regulatory agency, or any Federal, state or local governmental
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authority in connection with the ownership and operation of the Station, as set
forth in Schedule 1.1(a) hereto (collectively, the "Authorizations");
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(b) All of Seller's right, title and interest in and to the
Station's transmitters, antenna towers, antenna systems, fixtures, equipment,
machinery, tools, inventories
of supplies, blank video stock, spare parts, automobiles, and other vehicles,
furniture, computers, telephone systems, office equipment, and any other
tangible assets or personal property, which are owned or leased by Seller and
used in or relating to the operation of the Station, the material items of which
are set forth in Schedule 1.1(b) hereto (collectively, the "Tangible Personal
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Property"), plus such additions thereto and minus such deletions therefrom as
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are permitted by the provisions of this Agreement;
(c) All right, title and interest of Seller in and to (i) the
leases, contracts, agreements, and commitments listed on Schedule 1.1(c) hereto
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(including leases under which Seller is lessor of tower space, all rights to
deposits under leases or held by utilities or others, and cash held by Seller as
deposits under leases under which Seller is the lessor) and any renewals or
extensions thereof, and (ii) all other leases, contracts, agreements, and
commitments which are entered into by Seller in accordance with the provisions
of this Agreement between the date hereof and the Closing Date, but excluding
any leases, contracts, agreements, and commitments that terminate between the
date hereof and Closing (collectively, the "Assumed Contracts"). For purposes of
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this Agreement, the term "Material Contracts" shall refer to those Assumed
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Contracts designated as "Material Contracts" in Schedule 1.1(c) hereto;
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(d) Seller's right, title and interest in and to all call
letters including "KXTX" used or held for use in the operation of the Station
or with respect to the Assets and all trade names, trademarks, service marks,
Internet domain names, copyrights (including copyrights in software and
databases), trade secrets and patents (registered or unregistered, and including
applications therefor) including those listed and described in Schedule 1.1(d)
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hereto, together with the goodwill associated therewith, and any logograms,
jingles, and other intangible personal property associated therewith used, or
held for use, in connection with the operation of the Station or the other
Assets and all license agreements pursuant to which Seller licenses any of such
intellectual property to or from third parties, including those listed on
Schedule 1.1(d) hereto;
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(e) The real property used in the operation of the Station
listed and described in Schedule 1.1(e) hereto, including the fee estates and
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buildings, fixtures, and improvements thereon, leasehold interests (including
deposits), easements, rights to access, rights-of-way, and other real property
interests which are owned by Seller and used in the operation of the Station as
of the date hereof, plus such additions thereto and minus such deletions
therefrom as are permitted by the provisions of this Agreement (collectively,
the "Real Property"); and
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(f) Those portions of the books, files, and records specifically
relating to the Assets, the Station, and the business or operation of the
Station, including proprietary information, know-how, schematics, technical
information and engineering data machinery and equipment warranties, maps,
computer discs and tapes, software, databases, rights to use telephone numbers,
drawings, blueprints, plans, and processes developed or acquired by Seller and
used or intended for use in connection with the Station or the Assets,
employment records relating to the Transferred Employees (as defined in Section
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5.11) (to the extent permitted by law), correspondence, copies of the Assumed
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Contracts, and the FCC required logs, files, and records including without
limitation, the Station's public inspection file, but not including (i) those
books, files, and records set forth in Section 1.2 below, and (ii) any corporate
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or accounting
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books or records of Seller which do not relate to the operation of the Station
and the Assets, or which relate to Seller's past or current income tax
liabilities.
1.2 Excluded Assets. Notwithstanding anything in this Agreement to
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the contrary, the Assets do not include, and Seller shall not, and is not hereby
agreeing to, sell, assign, transfer, deliver, or convey to Purchaser, and
Purchaser shall not, and is not hereby agreeing to, purchase, acquire or accept
the following assets, rights and properties (collectively, the "Excluded
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Assets"): (a) cash and cash equivalents on hand or on deposit in banks (except
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for cash held by Seller as deposits under leases), marketable securities, or
intercompany or inter-affiliate accounts; (b) any insurance policies, promissory
notes, amounts due from employees, bonds, letters of credit, certificates of
deposit, other similar items, and any cash surrender value in regard thereto;
(c) any pension, profit-sharing, or employee benefit plans, including Seller's
interest in any welfare plan, pension plan, or benefit arrangement; (d) any
collective bargaining agreements; (e) all tax returns and supporting materials,
all original financial statements and supporting materials, all books and
records that Seller is required by law to retain, all records of Seller relating
to the sale of the Assets, corporate minute books, ownership record books and
other documents that relate to the organization and capitalization of Seller,
books and records related to any other asset listed in this Section 1.2, books
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and records related to any employees other than the portions of such books and
records relating to the Transferred Employees, books and records related to
liabilities of Seller or the Station that are not being assumed by Purchaser
pursuant to Section 1.4(b) hereof, and duplicate copies of such records included
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in Section 1.1(f) as Seller may reasonably require in order to satisfy tax,
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accounting and other applicable regulatory requirements; (f) any claim, right or
interest in or to any refunds of Federal, state, or local franchise, income, or
other taxes or fees of any nature whatsoever for periods ending on or prior to
the Closing Date or for which Seller is responsible pursuant to Sections 1.5,
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1.6 or 2.3 of this Agreement and any interest (or similar amount) thereon or
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received in respect thereto; (g) any accounts receivable of the Station; and (h)
any contract, lease, or agreement other than the Assumed Contracts; (i) all
programming agreements (the "Programming Contracts") and agreements with
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advertisers (the "Advertising Contracts"); (j) all current assets not otherwise
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set forth in this Section 1.2 (except to the extent paid for by Purchaser
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pursuant to Section 2.3 hereof); and (k) all other assets listed on Schedule 1.2
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hereto.
1.3 Purchase Price.
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(a) Upon the terms and subject to the conditions set forth in
this Agreement, and in consideration for the sale, assignment, conveyance,
transfer, bargain, and delivery of the Assets to Purchaser pursuant to the terms
hereof, the purchase price hereunder (the "Purchase Price") shall be a total of
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Sixty-Five Million Dollars ($65,000,000) in cash payable by Purchaser by wire
transfer of immediately available funds, to an account designated by Seller
prior to the Closing, subject to adjustment as provided in Section 2.3 and
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Schedule 4.2 hereto.
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(b) At the Closing, Purchaser shall assume and agree to pay and
otherwise fully to perform and discharge, and to indemnify Seller against, and
hold Seller harmless from, all of Seller's obligations and duties arising on or
after the Closing Date (as hereinafter defined) under the Assumed Contracts
(other than obligations or duties arising out of any breach by Seller under an
Assumed Contract not otherwise disclosed in this Agreement and
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the Schedules attached hereto occurring prior to the Closing Date) (the "Assumed
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Contract Obligations"). Purchaser shall not assume nor become obligated to pay
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any debt, obligation, or liability of any kind incurred or accrued in connection
with the operation of the Station, except for the Assumed Contract Obligations
and such other charges as are specifically allocated to Purchaser in accordance
with Section 2.3 or elsewhere in this Agreement or which Purchaser expressly
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agrees in writing to assume.
(c) Upon execution and delivery of this Agreement, Purchaser
will place in escrow with the Chase Manhattan Bank (the "Escrow Agent"),
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pursuant to the terms and conditions of an escrow agreement (the "Escrow
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Agreement") which is being executed and delivered by Purchaser, Seller and the
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Escrow Agent contemporaneously herewith, Three Million, Two Hundred Fifty
Thousand Dollars ($3,250,000) (the "Deposit"). The Deposit and any interest or
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income thereon are collectively referred to as the "Escrow Funds." The Escrow
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Funds shall be held and released by the Escrow Agent in accordance with the
terms and conditions of the Escrow Agreement and Section 10.3 hereof. Any cash
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included in the Escrow Funds as of the Closing Date and delivered to Seller at
Closing shall be credited toward the Purchase Price.
1.4 Nonassignable Contracts.
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(a) Without limiting or otherwise affecting the rights of
Purchaser hereunder, to the extent that any Assumed Contract to be assigned
pursuant to the terms of Section 1.1(c) is not capable of being assigned without
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the consent, approval or waiver of a third person or entity, nothing in this
Agreement will constitute an assignment or require the assignment thereof except
to the extent provided in this Section 1.4.
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(b) Notwithstanding anything contained in this Agreement to the
contrary, Seller will not be obligated to assign to Purchaser any of its rights
and obligations in any of the Assumed Contracts referred to in subsection (a)
above without first having obtained all consents, approvals and waivers
necessary for such assignment.
(c) To the extent that the consents, approvals and waivers
referred to in subsection (a) above are not obtained by Seller, Seller shall use
its best efforts to (i) provide to Purchaser the financial and business benefits
of any Assumed Contract referred to in subsection (a) above and (ii) enforce, at
the request of Purchaser, for the account of Purchaser, any rights of Seller
arising from any such Assumed Contract.
1.5 Additional Fees. Seller shall bear any and all sales and use
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taxes arising out of the transactions contemplated by this Agreement. Purchaser
and Seller shall bear equally any transfer, conveyance, recordation and filing
fees, taxes or assessments (collectively, the "transfer taxes"), including fees
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in connection with the conveyance of real property and the recordation of
instruments related thereto, applicable to, imposed upon, or arising out of the
sale, assignment, conveyance, and transfer to Purchaser of the Assets as
contemplated by this Agreement. Seller shall pay all income taxes or other fees
based upon gain realized by Seller as a result of the sale of the Assets.
Purchaser shall execute and deliver to Seller at the Closing any certificates or
other documents as Seller may reasonably request to perfect any exemption from
any such transfer taxes. Without limiting the foregoing, the parties shall bear
equally any fees
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associated with any filings required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended (the "HSR Act").
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1.6 Withholding Taxes. Purchaser shall be entitled to deduct and
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withhold from any amounts payable to Seller hereunder withholding taxes if any,
as are required by law; provided, however, that Purchaser shall inform Seller at
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least ten (10) days prior to Closing whether it intends to withhold any such
taxes and the approximate amount thereof. Any such withheld amounts shall be
treated for all purposes of this Agreement as having been paid to Seller.
ARTICLE II
Closing and Closing Deliveries
2.1 Closing. The term "Closing" as used herein shall refer to the
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actual conveyance, transfer, assignment, and delivery of the Assets to Purchaser
in exchange for the payment to Seller by Purchaser of the consideration payable
pursuant to Section 1.3 hereof on the Closing Date (as hereinafter defined), and
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shall be deemed effective as of 12:01 a.m. on the Closing Date. The Closing
shall take place at the offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to
Seller, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m. local
time on the Closing Date, or at such other place and hour as shall be mutually
agreed upon by Purchaser and Seller. Subject to Section 5.4 hereof, the Closing
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shall be held on (a) the fifteenth (15th) business day after the date on which
public notice of the FCC Consent (as defined in Section 3.1) has been published
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or (b) in the event a petition to deny or other objection which in the
reasonable judgment of all parties hereto is deemed to be non-frivolous or
having merit was filed against the FCC Application (as defined in Section 3.1)
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prior to grant of the FCC Consent, the fifteenth (15th) business day after (i)
the date on which the FCC Consent has become a Final Order (as defined in
Section 8.1) or (ii) if earlier, the date on which Purchaser provides written
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notice that it wants to close the transactions contemplated hereby or (c) such
later date as the conditions to Closing set forth in Articles VIII and IX have
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been satisfied or waived (such date referred to herein as the "Closing Date").
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In the event that the Closing has not occurred by December 31, 2001, Purchaser
and Seller shall negotiate in good faith to enter into a local marketing
agreement (an "LMA") to be effective on February 28, 2002, if the Closing has
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not occurred by such date, upon terms to be agreed upon between such parties,
whereby Purchaser shall provide certain management, operation and programming
services to the Station pursuant to the applicable regulations of the FCC until
the earlier of the Closing or the termination of this Agreement.
2.2 Closing Deliveries. At the Closing:
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(a) Seller shall deliver, or shall cause to be delivered, to
Purchaser:
(i) A duly executed ▇▇▇▇ of Sale, dated the Closing Date, in
the form attached hereto as Exhibit 2.2(a)(i);
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(ii) A duly executed Assignment or Assignments of the FCC
Licenses, dated the Closing Date, in the form attached hereto as Exhibit
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2.2(a)(ii);
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(iii) Duly executed titles for all motor vehicles and other
titled property to be transferred pursuant to Section 1.1(b) hereof;
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(iv) Assignments in recordable form, and any necessary
supporting documents, with respect to registered and applied for trademarks,
service marks, copyrights, patents and internet domain names included in the
Assets;
(v) Those consents (in writing) listed on Schedule
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2.2(a)(v) (the "Material Consents"), together with such additional written
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consents to the assignment to Purchaser of other Assumed Contracts listed in
Schedule 1.1(c), and such certificates and commitments obtained pursuant to
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Section 4.3 hereof as Seller shall have obtained as of the Closing Date; (All of
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the consents referred to in this Section 2.2(a)(v), including the Material
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Consents, shall be referred to herein collectively as the "Consents");
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(vi) Duly executed and notarized Registrant Name Change
Agreements in substantially the form attached hereto as Exhibit 2.2(a)(vi)
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(domain name transfer agreements) for each Internet domain name included in the
Assets;
(vii) All of the other documents that are required to be
delivered by Seller to Purchaser pursuant to Section 8.2 hereof;
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(viii) Such other assignments or documents, including general
warranty deeds for Real Property, as are necessary in order to vest good and
marketable title to the Assets (good and indefeasible title with respect to the
Real Property) in the name of Purchaser or its permitted assigns, free and clear
of any claims, liabilities, mortgages, liens, pledges, conditions, charges or
encumbrances of any nature, except for Permitted Encumbrances (as hereinafter
defined), or as may be otherwise permitted by this Agreement. "Permitted
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Encumbrances" shall mean (A) liens for current taxes not yet due and payable,
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(B) imperfections of title, encroachments, easements, covenants, conditions,
restrictions, zoning designations, violations of existing zoning or building
codes, ordinances or laws, that are disclosed on Schedule 2.2(a)(viii), and (C)
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other imperfections of title, encroachments, easements, covenants, zoning
designations, and restrictions of record that affect any real or personal
property and do not have a material adverse effect on the use of such real or
personal property in the conduct of the business or operations of the Station or
materially detract from the value of such real or personal property in the
conduct of the business or operations of the Station or the marketability of
title to such real or personal property (under no circumstances shall liens for
monetary loans or claims be deemed to be Permitted Encumbrances);
(ix) A certificate, as contemplated under and meeting the
requirements of Section 1.1445-2(b)(2)(i) of the Treasury Regulations (and under
corresponding provisions of applicable state or local laws, if any), to the
effect that the Seller is not a foreign person within the meaning of the Code
and applicable Treasury Regulations (and under corresponding provisions of
applicable state and local law);
(x) A duly-executed Assignment and Assumption Agreement,
dated the Closing Date, in the form attached hereto as Exhibit 2.2(a)(x)
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pursuant to which Seller shall assign the Assumed Contract Obligations (and the
Authorizations except for the FCC Licenses)
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to Purchaser and Purchaser shall assume and undertake to perform the Assumed
Contract Obligations and the obligations under such Authorizations except for
the FCC Licenses (the "Assumption Agreement"); and
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(xi) Such other documents as Purchaser or its legal counsel
may reasonably request in order to carry out the purposes of this Agreement.
(b) Purchaser shall deliver, or shall cause to be
delivered, to Seller;
(i) The Purchase Price pursuant to Section 1.3 hereof, and
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as adjusted pursuant to Section 2.3 hereof and Schedule 4.2 hereto;
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(ii) A duly-executed Assumption Agreement;
(iii) The documents that are required to be delivered by
Purchaser to Seller pursuant to Section 9.2 hereof; and
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(iv) Such other documents as Seller or its legal counsel
may reasonably request in order to carry out the purposes of this Agreement.
(c) Purchaser and Seller shall, upon request on or after
the Closing Date, cooperate with one another by furnishing any additional
information, executing and delivering any additional documents and/or
instruments, and doing any and all other acts as may be reasonably required by a
party hereto or by its legal counsel in order to consummate or otherwise to
implement the transaction contemplated by this Agreement.
2.3 Pro-Rated Amounts. Except as otherwise provided in this
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Agreement, the following items shall be pro-rated (in accordance with United
States generally accepted accounting principles, consistently applied) as of
12:01 a.m. on the Closing Date and paid, as between Seller, on the one hand, and
Purchaser, on the other hand, at the Closing (to the extent possible) in the
manner provided for herein below:
(a) All pre-paid expenses, and all expenses and
obligations for which liability has accrued but whose payment or satisfaction is
not yet due as of the Closing Date, related to the Assets including but not
limited to: (1) such expenses in connection with the Assumed Contracts, (2)
rents, (3) utility charges, including electricity, water and sewer charges, (4)
business and license fees and FCC regulatory fees, including any retroactive
adjustments thereof, (5) property and equipment rentals, (6) real and personal
property taxes in connection with the Assets, and (7) operating expenses, shall
be pro-rated and adjusted between Purchaser and Seller in accordance with the
principle that except as otherwise provided in this Agreement, Seller shall be
responsible for all expenses, costs, and liabilities allocable to the conduct of
the business or operations of the Station up to 12:01 a.m. on the Closing Date
and Purchaser shall be responsible for all such expenses, costs and liabilities
after 12:01 a.m. on the Closing Date. In addition, Seller shall receive all
revenues allocable to the conduct of the business or operations of the Station
up to 12:01 a.m. on the Closing Date and Purchaser shall receive all revenues
allocable to the conduct of the business or operations of the Station after
12:01 a.m. on the Closing Date. Notwithstanding the foregoing, there shall be no
adjustment for, and Seller shall remain solely liable with respect to, any
contract other than the Assumed Contracts in
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Schedule 1.1(c) hereto, or any other obligation or liability not being assigned
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to, and assumed by, Purchaser. For purposes of determining pro-rated amounts
under leases and other rental agreements, payments under such leases and
agreements shall be deemed to be due in equal installments over the terms
thereof.
(b) Seller shall deliver to Purchaser, no less than five
(5) business days before the Closing Date, Seller's written good faith estimate
of the prorated amounts set forth in Section 2.3(a), as of the Closing Date.
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Purchaser may deliver written notice to Seller of any prorated amounts which
Purchaser disputes based upon its preliminary review of such statement, in which
case Purchaser and Seller will negotiate in good faith to resolve any such
disputed amounts; provided, however, that any such dispute shall not delay the
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Closing, and the undisputed portion of the prorated amounts set forth in such
statement will be used to adjust the Purchase Price, subject to further
adjustment pursuant to Section 2.3(c). Purchaser's failure to dispute any
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pro-rated amount on such statement prior to Closing shall not be deemed a waiver
of its right to challenge any such amount during the post-Closing adjustment
process contemplated by Section 2.3(c).
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(c) At the conclusion of sixty (60) days from and after
the Closing Date, a final adjustment of the items to be pro-rated between
Purchaser and Seller pursuant to Section 2.3(a) hereof shall be made; provided,
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however, in the event that the statement for real estate taxes for the year in
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which the Closing occurs has not been received by such date, the pro-ration of
real estate taxes shall be made as promptly as practicable, but in any event
within thirty (30) days after such statement is received from the applicable
authorities. In the event that there is a dispute as to certain amounts, Seller
and Purchaser shall adjust any amounts for which there is no dispute, and
attempt in good faith to resolve any disputed amounts. If the parties are unable
to resolve any disputed amounts within ninety (90) days after the Closing Date,
either party may refer the adjustment of such disputed amounts to Ernst and
Young LLP (the "Settlement Accountant") which shall resolve such disputed
amounts and such resolution shall be final and binding on the parties. The fees
and expenses of such accounting firm that are incurred to resolve a disputed
amount pursuant to the preceding sentence shall be shared equally by Seller and
Purchaser.
2.4 Delivery of FCC Licenses to Purchaser Affiliate.
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Seller and the Purchasing Parties hereby agree that at the Closing, the FCC
Licenses shall be assigned directly to Telemundo Licensee in lieu of being
assigned to Purchaser.
ARTICLE III
FCC Approval and ▇▇▇▇-▇▇▇▇▇ Filing
3.1 FCC Approval. Within ten (10) business days of the date
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hereof, Telemundo Licensee and Seller shall jointly file with the FCC an
application (the "FCC Application") to request the FCC's consent to the
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voluntary assignment of the FCC Licenses from Seller to Telemundo Licensee (the
"FCC Consent"). Telemundo Licensee and Seller shall each pay its own expenses in
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connection with the preparation and prosecution of the FCC Application and shall
share any filing fee associated with the FCC Application equally. Seller and
Telemundo Licensee shall prosecute the FCC Application before the FCC, including
opposing any petitions to deny filed against the FCC Application, with all
reasonable diligence,
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in order to obtain the FCC Consent promptly and in order to carry out the
provisions of this Agreement. Telemundo Licensee and Seller each agree to comply
with any condition imposed on it by the FCC Consent except any such condition
which would have a material adverse effect on it or its affiliates. If FCC
reconsideration or review, or if judicial review, shall be sought with respect
to the FCC Consent by a third party or upon the FCC's own motion, Purchaser and
Seller shall cooperate in opposing such requests for FCC reconsideration or
review or for judicial review if the parties mutually agree that the filing of
such opposition is reasonable.
3.2 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Filings. Within twenty (20) days of the
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date hereof, the parties will each complete and file any notification and report
required to be filed under the HSR Act, and each such filing shall request early
termination of the waiting period under the HSR Act. The parties shall use
commercially reasonable efforts to respond promptly to any inquiries or requests
for documents or information with respect to the transactions contemplated by
this Agreement received from the Federal Trade Commission ("FTC") or the
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Department of Justice ("DOJ"). The filing fee relating to the
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filings under the HSR Act will be shared equally by Seller and Purchaser.
ARTICLE IV
Covenants of Seller
4.1 Inspection Rights. Seller will make available to Purchaser
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in a timely fashion all materials reasonably requested by Purchaser for
Purchaser's due diligence, which, upon Purchaser's request, shall be provided to
Purchaser and its representatives at an off-site location. Until the Closing,
upon prior notice, Seller shall, during the Station's regular business hours,
make the premises and facilities of the Station and the books, accounts,
records, contracts, and documents of Seller pertaining to the Station and
included in the Assets available to Purchaser and its agents to conduct those
tests and investigations that Purchaser reasonably deems necessary and to
assure, among other things, that the Station is being operated in compliance
with FCC rules and all other Federal, state and local requirements, including
all environmental laws and regulations. Purchaser will have reasonable access to
Station's employees; and Seller will cooperate fully with Purchaser in its
performance of any tests or investigations; provided that neither the furnishing
of such information to Purchaser or its representatives nor any investigation
made heretofore or hereafter by Purchaser shall affect Purchaser's right to rely
upon any representation or warranty made by Seller in this Agreement, each of
which shall survive any furnishing of information to Purchaser or its agents, or
any investigation by Purchaser or its agents, subject to Section 6.24 hereof.
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Any such examination and inspection by Purchaser or by its agents shall be
undertaken in a manner designed to minimize the disruption to Seller and to the
operations of the Station. At all reasonable times prior to the Closing or the
earlier termination of this Agreement, Purchaser, its agents and representatives
may at Purchaser's sole cost and expense: (a) enter onto the Real Property
during normal business hours and upon reasonable advance notice to Seller, to
perform any inspections, investigations, studies and tests of the Real Property,
including, without limitation, physical, structural, mechanical, architectural,
engineering, soils, geotechnical and environmental tests, that Purchaser deems
reasonable; (b) cause an environmental assessment of the Real Property to be
performed, upon reasonable notice to Seller; and (c) investigate such other
matters as Purchaser may reasonably desire. Purchaser shall indemnify, protect,
defend and hold harmless Seller from all claims, causes of action and demands
incurred by Seller in connection with or
9
arising out of any inspections or tests carried on, by or on behalf of
Purchaser; provided, however, that Purchaser shall not indemnify Seller for any
-------- -------
claim, loss or cause of action caused by Seller's negligence or willful
misconduct or any physical condition existing on the Real Property prior to
Purchaser's or its agent's entry thereon. In addition, if this Agreement is
terminated, Purchaser shall repair any damage to the Real Property caused by its
entry thereon and shall restore the same to the condition in which it existed
prior to such entry; provided, further, that Purchaser shall have no obligation
-------- -------
to repair any damage caused by Seller's negligence or willful misconduct or to
remediate, contain, ▇▇▇▇▇ or control any hazardous defect that existed at the
Real Property prior to Purchaser's entry thereon.
4.2 No Changes. Except as set forth on Schedule 4.2, except
---------- ------------
as contemplated or required by this Agreement and except as otherwise consented
to in writing by Purchaser, from and after the date hereof to the Closing Date,
Seller shall, operate the Station only in the ordinary course of business as
conducted since January 1, 2001, including without limitation:
(a) pay when due all obligations arising under the
Assumed Contracts and keep and maintain the Assets being purchased hereunder
(except for immaterial Assets with a fair market value in the aggregate not
exceeding Ten Thousand Dollars ($10,000)) in good operating condition and repair
(normal wear and tear excepted) and in material compliance with the FCC's rules
and regulations, and use, operate, and maintain the Assets in a reasonable
manner with inventories of spare parts and expendable supplies being maintained
at levels reasonably consistent with past practices;
(b) not sell, assign, lease, mortgage, pledge, or
otherwise transfer, or dispose of any of the Assets, or create, assume, or
permit to exist any claim, liability, lien, condition, charge, or encumbrance
upon any of the Assets, except for (i) liens, charges, and encumbrances in favor
of Purchaser; (ii) Permitted Encumbrances and liens, charges and encumbrances
that will be discharged prior to the Closing Date; and (iii) immaterial items of
personal property included in the Assets and sold, or otherwise disposed of in
the ordinary and regular course of the operation of the Station;
(c) not increase or otherwise change the rate or nature
of the compensation (including wages, salaries, severance and bonuses) which is
paid or payable to any of the Subject Employees (as such term is defined in
Section 6.16) except in connection with ordinary reviews or promotions
------------
consistent with Seller's past practices pursuant to pre-existing written
compensation and fringe-benefit plans, or as otherwise set forth on Schedule
--------
4.2(c);
------
(d) not enter into, nor become obligated under any
agreement or commitment which is or will become an Assumed Contract requiring
the Station to make cash payments to third parties, except for normal
commitments for personal property and services which are (i) entered into in the
ordinary and regular course of the operation of the Station, consistent with the
Station's past and present practices, and (ii) terminable by Seller and its
successors and assigns on not more than ninety (90) days' notice, or to the
extent not so terminable, do not provide for payments, in the aggregate, in
excess of Ten Thousand Dollars ($10,000.00) during the full terms thereof; nor
shall Seller materially change, amend, terminate, or otherwise modify any
agreement or commitment other than in the ordinary course of business;
10
(e) maintain insurance policies on the Assets in accordance with
Seller's normal and prudent business practices;
(f) not make, nor commit to make, any payments, contribution, or
award under or into any profit-sharing, retirement or similar plan, program, or
trust on behalf of the Subject Employees except in accordance with any such
plan, program, or trust currently maintained by Seller, and contributions which
are made consistent with past practices;
(g) maintain and preserve the operations of the Station as they
relate to the Assets, and use Seller's commercially reasonable efforts to
maintain and preserve, consistent with the ordinary course of business, the
Station's goodwill and the Station's present relationships with suppliers, cable
television systems carrying the Station's signal, and others having business
relations with the Station;
(h) not make any material changes in the broadcast hours of the
Station;
(i) not do any act which would reasonably be expected to result
in the expiration, revocation, suspension, or modification of any of the
Authorizations or FCC Licenses (other than to make minor corrections to FCC
records), nor fail to do any act necessary in order to prevent the expiration,
revocation, suspension, or modification of any of the Authorizations or FCC
Licenses, nor fail to file on a timely basis any application with the FCC with
respect to digital television facilities;
(j) not waive or release any material right of Seller in the
Material Contracts;
(k) except as required by law, not enter into any collective
bargaining agreement, or through negotiations or otherwise make any commitment
or incur any liability to any labor organization with respect to the Subject
Employees;
(l) not transfer, grant or abandon any rights under any leases,
licenses, agreements, trademarks, service marks, Internet domain names, trade
names, copyrights or patents included in the Assets, and respond substantively
to any outstanding matters before any intellectual property registry office;
(m) maintain its books and records, including the record keeping
and reporting requirements imposed by the FCC, in accordance with past practices
and in material compliance with the FCC's rules and regulations;
(n) at least five (5) business days prior to the Closing Date,
deliver to Purchaser a list of all material contracts relating to the Station
entered into by Seller after the date hereof of the type required to be listed
in Schedule 1.1(c) hereto, together with copies of such contracts; and
---------------
(o) comply in all material respects with all rules and
regulations of the FCC and all other laws, rules, and regulations to which
Seller, the Station, and the Assets are subject.
11
4.3 Written Consents. Prior to the Closing Date, Seller shall proceed
----------------
with all reasonable diligence and shall use commercially reasonable efforts to
obtain (a) the written consents to the consummation of the transactions
contemplated by this Agreement from all necessary persons, including, without
limitation, the consents of parties to Assumed Contracts where required, and (b)
for each parcel of real property included in the Assets and owned by Seller or
leased by Seller, certificates of estoppel and non-disturbance and attornment
commitments in favor of Purchaser, from any mortgagees and from the respective
landlords under such leases, addressing such matters as Purchaser may reasonably
request; provided, however, notwithstanding anything to the contrary contained
-------- -------
in this Agreement, Seller shall have no obligation to make payments to third
parties (other than payments otherwise due such parties) in order to obtain any
such consents, certificates, or commitments. Seller has received no notice, and
has no other reason to believe, that any party to an Assumed Contract whose
consent to the consummation of the transactions contemplated by this Agreement
is required will (a) not grant such consent or (b) require any modification of
the rights or obligations of Seller under such Assumed Contract in order to
grant such consent.
ARTICLE V
Special Covenants and Agreements
5.1 Indemnification Regarding Brokers. Seller agrees to indemnify
---------------------------------
Purchaser, and to hold Purchaser harmless, from and against any claims asserted
by any broker or finder, or any person or entity acting or claiming to act in a
similar capacity in connection with the sale of the Station, arising out of the
representation made in Section 6.4 by Seller; and Purchaser agrees to indemnify
-----------
Seller, and to hold Seller harmless, from and against any claims asserted by any
broker or finder, or any person or entity acting or claiming to act in a similar
capacity in connection with the sale of the Station, arising out of the
representation made in Section 7.6 by Purchaser.
-----------
5.2 Successor Tax Liability. Seller and Purchaser hereby agree to
-----------------------
treat the transactions contemplated by this Agreement as not governed by or
subject to Texas Tax Code Annotated Section 111.020 or Texas Administrative Tax
Code Section 3.7, or other similar provisions of applicable law; provided that
Seller agrees to indemnify Purchaser, and to hold Purchaser harmless from and
against losses resulting from such transactions under such laws.
5.3 Cooperation. Purchaser and Seller shall cooperate fully with each
-----------
other and with their respective counsel and accountants in connection with any
actions required to be taken as part of their respective obligations under this
Agreement, and Purchaser and Seller shall execute such other documents as may be
necessary and reasonable for the implementation and consummation of the
transactions contemplated by this Agreement, and otherwise use their
commercially reasonable best efforts to consummate the transactions contemplated
hereby and to fulfill their obligations hereunder. Notwithstanding the
foregoing, Seller and Purchaser shall have no obligation (i) to expend funds in
order to obtain the Consents (other than any fee payable to the FCC in
connection with the filing of the FCC Application or any fees in connection with
filings under the HSR Act), or (ii) to agree to any material adverse change in
any Material Contract in order to obtain a Consent with respect thereto.
12
5.4 Risk of Loss. The risk of any loss, damage, impairment,
------------
confiscation, or condemnation of any of the Assets from any cause whatsoever
shall be borne by Seller at all times prior to the completion of the Closing,
and by Purchaser at all times thereafter, subject to the provisions of this
Section 5.4. In the event of any loss, damage, impairment, confiscation, or
-----------
condemnation of any of the Assets (a "Loss") prior to the Closing, which Loss
----
shall prevent the Station's signal transmission in accordance with the terms of
its FCC License, or which Loss shall materially impair the Station's signal
coverage area, Seller shall use commercially reasonable efforts to repair,
replace, or restore the Assets affected by such Loss in order to restore the
Station's signal coverage substantially as it existed prior to the Loss. Seller
and Purchaser agree that in the event the Station is not operating substantially
in accordance with the terms of its FCC Licenses or with signal coverage
substantially as it existed prior to the Loss on the scheduled Closing Date, the
Closing Date shall be rescheduled to the date which is five (5) business days
after the Station's signal coverage has been so restored. In the event of a Loss
which prevents the Station's signal transmission, or materially impairs the
Station's signal coverage area for a period of more than five (5) consecutive
days, Purchaser may terminate this Agreement pursuant to Section 10.1(ii).
----------------
5.5 No Inconsistent Act. Pending the Closing Date, neither Seller nor
-------------------
Purchaser shall (i) take any action which is materially inconsistent with their
respective obligations hereunder, or which would reasonably be expected to
materially hinder or delay the consummation of the transaction contemplated by
this Agreement, except as specifically required or permitted herein, or (ii)
take or fail to take any action which would render any, of its representations
or warranties set forth in Article VI or VII, as the case may be, no longer
---------- ---
accurate.
5.6 Notifications. Pending the Closing Date, Seller and Purchaser
-------------
shall promptly notify each other in writing of any developments, except for
matters affecting the television broadcasting industry generally, which singly
or in concert with others are material with respect to the Station or the
Assets, or with respect to the ability of such notifying party to consummate the
transactions contemplated hereby, and of any material change in any of the
information contained in such party's representations and warranties contained
in this Agreement, provided that such notification shall not relieve such party
of any obligations under this Agreement.
5.7 Allocation of Purchase Price. Seller and Purchaser mutually agree
----------------------------
to allocate the Purchase Price and other relevant items set forth in Section 1.3
-----------
among the Assets acquired hereunder by Purchaser in accordance with the
provisions of Section 1060 of the Internal Revenue Code of 1986, as amended (the
"Code"), and any Treasury Regulations promulgated thereunder ("Treasury
---- --------
Regulations"). Seller shall provide Purchaser with a draft of such allocation
-----------
within sixty (60) days after the Closing Date. Purchaser shall notify Seller of
any objection Purchaser may have to such allocation. Seller and Purchaser agree
to attempt to resolve any disagreement with respect to such allocation in good
faith consistent herewith; provided, however, that if Purchaser and Seller shall
not have agreed on the allocation by the 90th day following the Closing, the
allocation shall be made in accordance with the appraisal of the Settlement
Accountant, the fees and expenses of which shall be paid equally by Purchaser
and Seller. Seller and Purchaser each agree to report and file all tax returns
(including amended tax returns and claims for refund) consistently with any such
allocation, and shall take no position
13
contrary thereto or inconsistent therewith (including, without limitation, in
any audits or examinations by any taxing authority or any other proceedings).
Seller and Purchaser shall cooperate in the filing of any forms (including Form
8594) with respect to any such allocation, including any amendments to such
forms required with respect to any adjustment to the Purchase Price and other
relevant items set forth in Section 2.3 and Schedule 4.2, pursuant to this
----------- ------------
Agreement. Notwithstanding any other provisions of this Agreement, the foregoing
agreement shall survive the Closing Date without limitation. In the event that
such allocation is disputed by any taxing authority, the party receiving notice
of the dispute shall promptly notify the other party hereto and shall forward to
such other party copies of all correspondence with such taxing authority in
respect of such disputed allocation.
5.8 Further Assurances. After the Closing Date, each party will take
------------------
all action reasonably requested by the other to carry out the intent of this
Agreement and to vest good and marketable title to the Assets in Purchaser.
5.9 Control of the Station. Prior to Closing, Purchaser shall not,
----------------------
directly or indirectly, control, supervise, direct, or attempt to control,
supervise, or direct the operations of the Station; such operations, including
complete control and supervision of all of the Station's programs, employees,
and policies, shall be the sole responsibility of Seller until the Closing.
5.10 Post-Closing Audit of Station's Operations. For a period of three
------------------------------------------
(3) years after the Closing, Seller shall cooperate, and shall cause its
successors and assigns to cooperate, with Purchaser and Purchaser's
representatives in conducting any audit of the operations of the Station during
the period that it was owned by Seller, including without limitation making
available to Purchaser and its representatives such portions of the books and
records of the Station as may be required for such audit and instructing
Seller's auditors to cooperate with Purchaser and its representatives in
conducting such audit. The expense of any such audit and the expenses of
Seller's outside auditors incurred in the course of such audit shall be borne by
Purchaser.
5.11 Past Service Credit. Purchaser agrees that, solely with respect
-------------------
to its employee welfare benefit programs and arrangements covering or otherwise
benefiting any Subject Employee who commences employment with a Purchasing Party
as of the Closing Date (each, a "Transferred Employee," and collectively the
--------------------
"Transferred Employees"), the period during which such Transferred Employee was
---------------------
employed by Seller shall be considered as time employed by Purchaser for
purposes of eligibility for benefits under such programs and arrangements.
5.12 Medical Plan. Effective as of the Closing Date (or as soon as
------------
practicable thereafter), each Transferred Employee shall be eligible to
participate in a medical plan comparable to, and subject to the similar terms
and conditions as, the medical plan or plans provided to employees in similar
positions in companies under common control with Purchaser. To the extent
Transferred Employees have satisfied the plan's applicable terms, conditions and
requirements, Purchaser shall take any commercially reasonable steps as
necessary to provide such coverage effective as of the Closing Date to ensure
uninterrupted coverage of all Transferred Employees who accept Purchaser's offer
of employment.
14
5.13 Exclusive Negotiations. In consideration for the considerable
----------------------
amount of time and expense that Purchaser and Seller will devote to performing
their obligations hereunder, from the date hereof until the termination of this
Agreement:
(a) Seller agrees not to, and to use its best efforts to cause
its officers, directors, employees, stockholders, agents and representatives not
to, solicit, discuss, authorize or negotiate with any other person or entity or
entertain or consider any other proposals relating to the possible disposition
of the Station, including without limitation, by way of entering into any LMA or
similar arrangement (collectively, a "Disposition"); and
-----------
(b) Purchaser agrees not to, and to use its best efforts to
cause its officers, directors, employees, stockholders, agents and
representative not to, solicit, discuss, authorize or negotiate with any other
person or entity or entertain or consider any other proposal relating to the
possible acquisition of any commercial broadcast television station or
commercial digital broadcast television station operating and/or broadcasting in
the Dallas-Fort Worth metropolitan area, including without limitation, by way of
entering into any LMA or similar arrangement.
5.14 Promotion of Purchaser. From the later of August 1, 2001 or the
----------------------
commencement of the thirty (30) day period during which interested parties may
file petitions with the FCC to deny the FCC Application (unless any such
petition is filed, in which such case, then upon the dismissal of all such
petitions) through the Closing or the termination of this Agreement pursuant to
Article X, as applicable, Seller shall reasonably cooperate with Purchaser to
---------
promote on air on the Station Purchaser's upcoming acquisition of the Station
and the commencement of Telemundo Network programming on the Station.
5.15 Azteca Agreement. Within five (5) business days of the date of
----------------
this Agreement, Seller shall notify the FCC in writing that it will not
consummate the transactions contemplated by the Azteca Agreement (as such term
is defined in Section 6.23) and approved by the FCC on November 13, 2000 in FCC
------------
Application File No. BALCT-20000706ADS. Seller shall deliver to Purchaser a
complete and accurate copy of such notice as well as complete and accurate
copies of all notices and correspondence relating to the termination of the
Azteca Agreement sent or received prior to, on or after the date of this
Agreement.
5.16 Transferred Employees Payroll Matters. Seller agrees to transfer
-------------------------------------
to Purchaser any records relating to withholding and payment of income,
disability, unemployment, FICA, and similar taxes ("Payroll Taxes") with respect
-------------
to wages paid by Seller during the 2001 calendar year to the Transferred
Employees as of the Closing Date. In accordance with, and to the extent
permitted by, Internal Revenue Service Revenue Procedure 96-60, 1996-2 C.B. 399
("Revenue Procedure") and comparable foreign, state and local laws relating to
-----------------
Payroll Taxes, (i) Purchaser agrees to provide the Transferred Employees with
Forms W-2, wage and tax statements, for the 2001 calendar year setting forth the
aggregate amount of wages paid to, and Payroll Taxes withheld in respect
thereof, such Transferred Employees for the 2001 calendar year by Seller and
Purchaser (or its affiliate) as predecessor and successor employers,
respectively, and (ii) Seller shall be relieved of any responsibility to furnish
any such tax information to the Transferred Employees or the applicable taxing
authority. If Purchaser cannot avail itself to the benefits accorded under the
Revenue Procedure or under comparable foreign, state and local laws relating to
Payroll Taxes, Purchaser shall provide Seller with access to the
15
books and records of the Transferred Employees to the extent such access is
necessary to permit Seller to comply with its obligations under applicable law.
5.17 Video Communications. Seller agrees that from and after the
--------------------
Closing Date, it shall pay to Purchaser, when such amounts are due, fifty
percent (50%) of the amounts that Purchaser is obligated to pay to Video
Communications, Inc. ("VCI") pursuant to that certain Software License,
Maintenance and Support Agreement dated July 6, 1999, between Seller and VCI to
be assumed by Purchaser at Closing pursuant to Section 1.1(c) hereof.
--------------
ARTICLE VI
Representations and Warranties of Seller
Seller represents and warrants to the Purchasing Parties as follows:
6.1 Good Standing. Seller is a limited partnership duly organized,
-------------
validly existing, and in good standing under the laws of the State of Texas,
Seller has all requisite power and authority (i) to own, lease, and use the
Assets as presently owned, leased, and used, (ii) to conduct the business and
operations of the Station as presently conducted, and (iii) to execute and
deliver this Agreement and the documents contemplated hereby, and to perform and
comply with all of the terms and conditions to be performed and complied with by
Seller hereunder and thereunder. Seller holds all material rights, franchises,
licenses, permits, authorizations, and approvals (governmental and otherwise),
including the FCC Licenses, necessary to own and operate its properties and to
carry on and conduct the business of the Station as it is presently carried on
and conducted. Except as set forth on Schedule 6.1, Seller is not a participant
------------
in any joint venture or partnership with any other person or entity with respect
to any part of the Station's operations or the Assets.
6.2 Right, Power and Authority. Seller has the full power and
--------------------------
authority to enter into, and to execute and deliver and to perform its
obligations under, this Agreement, the Escrow Agreement, and any other
instruments contemplated hereby. Seller has taken all requisite action in order
to authorize the execution, delivery, and performance of this Agreement and the
consummation of the sale of the Assets and the other transactions contemplated
hereby. This Agreement and the Escrow Agreement have been duly executed and
delivered by Seller and are the legal, valid, and binding obligations of Seller
enforceable against Seller in accordance with their terms, except to the extent
limited by (i) bankruptcy, insolvency, moratorium, and other laws of general
applicability relating to or affecting the enforcement of creditors' rights,
(ii) principles of public policy, and (iii) court-applied general principles of
equity.
6.3 No Conflicts or Defaults. Neither the execution, delivery, nor
------------------------
performance of this Agreement by Seller, nor the consummation of the sale and
purchase of the Assets or any other transaction contemplated hereby, after the
giving of notice, or the lapse of time, or both, (a) conflicts with, results in
a breach of, or constitutes a default under, the certificate of limited
partnership or partnership agreement of Seller, or any Federal, state or local
law, statute, ordinance, rule, or regulation, or any court or administrative
order or process applicable to Seller, (b) conflicts with, constitutes grounds
for termination of, results in a breach of, constitutes a default under,
violates any right of first refusal or similar right granted to a third party
under, or accelerates or permits the acceleration of any performance required by
the terms
16
of, any Material Contract to which Seller is a party or by which Seller or the
Assets are bound and which relates to the ownership or operation of the Station
or the Assets; provided, however, that certain Assumed Contracts listed in
-------- -------
Schedule 1.1(c) hereto are not assignable without the consent of another party;
---------------
or (c) results in the creation of any mortgage, pledge, lien, claim, liability,
charge, condition, or encumbrance upon any of the Assets utilized or required in
connection with the operation of the Station, other than as expressly
contemplated by this Agreement or any Permitted Encumbrance.
6.4 Broker's Fee. Neither this Agreement, nor the sale and purchase
------------
of the Assets contemplated by this Agreement, was induced or procured through
the services of any person, firm, corporation, or other entity acting on behalf
of or representing Seller as broker, finder, investment banker, financial
advisor, or in any similar capacity.
6.5 FCC Compliance. The Station, its physical facilities, electrical
--------------
and mechanical systems, and transmitting and studio equipment are operated in
all material respects in accordance with the specifications of the FCC Licenses
and the FCC rules and regulations.
6.6 Title to Assets. Seller has good and marketable title to all of
---------------
the Assets (good and indefeasible title to the Real Property) free and clear of
any mortgages, pledges, liens, encumbrances, or other charges or rights of
others of any kind, except for Permitted Encumbrances and those mortgages,
liens, encumbrances or other charges listed on Schedule 6.6 (which shall be
------------
released prior to Closing).
6.7 Real Estate.
-----------
(a) Schedule 1.1(e) hereto describes all interests, including
---------------
all leasehold interests, in real estate included in the Assets, and the nature
of the right, title, or interest that Seller has in such real estate, including
a legal description of such real estate. All leases included in the Assets are
valid, binding, and enforceable against Seller, and to the knowledge of Seller,
each other party thereto, in accordance with their terms, subject to applicable
provisions of any subsequently-enacted landlord tenant laws of the jurisdiction
in which each such lease is to be performed, and subject to the qualifications
set forth in clauses (i), (ii), and (iii) of Section 6.2 hereof, Seller is not
-----------
in material breach, nor to the best of Seller's knowledge is any other party in
material breach, of the terms of any such leases, or other instruments, except
as disclosed in Schedule 6.7(a).
---------------
(b) Schedule 6.7(b) contains a complete and accurate list of all
---------------
certificates of occupancy, permits and licenses held by Seller in connection
with the ownership, use, operation, leasing and maintenance of the Assets.
(c) Purchaser has been furnished with true and complete copies
of (i) all Leases, (ii) all certificates of occupancy, permits and licenses held
by Seller in connection with the ownership, use, operation, leasing and
maintenance of the Assets, (iii) all existing title insurance policies and
surveys relating to the Real Property in the possession of Seller, and (iv) all
documents evidencing all mortgages, pledges, liens, encumbrances, or other
charges upon the Real Property. "Lease" shall mean any Assumed Contract pursuant
-----
to which Seller leases real or personal property, whether as lessor or lessee.
17
(d) Except as set forth on Schedule 6.7(d) hereto, to the
---------------
knowledge of Seller, Seller has obtained (or the fee owner of any Leased Real
Property has obtained) all appropriate certificates of occupancy, permits,
licenses, easements and rights of way, including proofs of dedication, required
to use and operate the Real Property and the Leased Real Property in all
material respects in the same manner in which the Real Property and the Leased
Real Property is currently being used and operated. To the knowledge of Seller,
the current use and occupation of any portion of the Real Property and the
Leased Real Property does not violate any of such certificates, permits or
licenses. No such approvals, permits or licenses will be required, as a result
of the transactions contemplated by this Agreement, to be issued after the date
hereof in order to permit Seller to own or operate the Real Property and the
Leased Real Property in all material respects in the same manner as heretofore
owned or operated other than any such approvals, permits, licenses that are
ministerial in nature and are normally issued in due course upon application
therefore without further action by the applicant. "Leased Real Property" shall
mean all Real Property which is the subject of a Lease.
(e) Seller has not received written notice of any proceeding
which would cause the change, redefinition or other modification of the zoning
classification of the Real Property or Leased Real Property.
(f) Seller is not aware of any unpaid assessments (governmental
or otherwise) for sewers, water, paving, electrical power or otherwise affecting
the Real Property or Leased Real Property and, to Seller's knowledge, no such
assessments are threatened.
(g) Seller has not received written notice that the whole or any
portion of the Real Property and the Leased Real Property or any other Assets is
subject to any governmental decree or order to be sold or is being condemned,
expropriated or otherwise taken by any public authority with or without payment
of compensation therefor, nor, to Seller's knowledge, has any such condemnation,
expropriation or taking been proposed.
6.8 Environmental. Seller hereby represents and warrants that except
-------------
as would not reasonably be expected to have a material adverse effect on the
Assets or on the ability of Seller to consummate the transactions contemplated
hereby (a "Material Adverse Effect") (a) Seller is in compliance with all
-----------------------
applicable Federal, state, and local laws governing pollution or the protection
of human health or the environment ("Environmental Laws") and (b) Seller has not
------------------
received any written notice with respect to the business of, or any property
owned or leased by, Seller or the Station from any governmental entity or third
party alleging that Seller or the Station was not in compliance with or had
incurred any liability under any Environmental Laws as of such date (an
"Environmental Claim") and there were no activities, circumstances, events or
-------------------
incidents, including releases of any hazardous material into the environment
that were reasonably likely to form the basis of any Environmental Claim against
Seller or the Station. Seller has provided to Purchaser all assessments,
reports, data, results of investigations or audits, and other information that
are in the possession of Seller regarding environmental matters pertaining to,
or the environmental condition of, the Assets of Seller, or the compliance (or
noncompliance) by Seller with any Environmental Laws.
18
6.9 No Litigation Or Violations of Law.
----------------------------------
(a) Except for matters affecting the television broadcasting
industry generally, and except for those matters set forth in Schedule 6.9(a)
---------------
hereto, there is no litigation at law or in equity, no arbitration proceeding
and no proceeding before or by any court, commission, agency, or other
administrative or regulatory body or authority, pending or, to the knowledge of
Seller, threatened, which could reasonably be expected to have a Material
Adverse Effect.
(b) Except as disclosed in Schedule 6.9(b) hereto, there is no
---------------
labor trouble, dispute, grievance, controversy, claim for breach of an express
or implied contract of employment, strike, union representation, or request for
union representation pending, or, to the knowledge of Seller, threatened,
against Seller relating to or affecting the Subject Employees.
(c) Seller owns and operates its properties and assets, and has
not taken any action related to the conduct of the business and affairs of the
Station that is not in material compliance with all Federal, state, and local
laws, statutes, ordinances, rules, and regulations. To Seller's knowledge,
neither the ownership or use of its properties, nor the conduct of the business
or operations of the Station, conflicts in any material way with the rights of
any other person, firm, corporation or entity. Seller has received no
notification that it is in violation of any applicable building, zoning, health
or other law, ordinance or regulation in respect of its plants or structures or
their operations, and to the knowledge of Seller, no such violation exists.
Seller has no knowledge of any condition currently or previously existing on any
Real Property or Leased Real Property or any portion thereof which may give rise
to any violation of any applicable law if it were disclosed to the authorities
having jurisdiction over the Real Property and the Leased Real Property.
6.10 Intellectual Property. All patent, trademark, trade name,
---------------------
service ▇▇▇▇, or Internet domain name registrations and copyright registrations,
licenses, permits, call letters, jingles, privileges, and other similar
intangible property rights and interests and all pending applications or
applications to be filed therefor, if any, owned by Seller and used or held for
use in the operation of the Station are disclosed in Schedule 1.1(d) hereto and
---------------
all such items are subsisting and in good standing. Seller owns all right, title
and interest in the items set forth on Schedule 1.1(d) and has delivered to
---------------
Purchaser copies of all documents, establishing or supporting Seller's claim to
such rights, licenses, or other authority. To the knowledge of Seller, the
ownership and operation of the Station and the Assets, as presently owned and
operated, does not infringe upon nor conflict in any material respect with any
patent, trademark, trade name, service ▇▇▇▇, Internet domain name, copyright or
trade secret of any other person, firm, corporation, or entity and there are no
claims pending against Seller or any of its affiliates to such effect. To
Seller's knowledge, no third party is infringing upon any patents, trademarks,
service marks, Internet domain names, copyrights, patents or trade secrets
included in the Assets. Except for the Excluded Assets (i) the Assets include
all patents, trademarks, service marks, Internet domain names, copyrights,
patents, and trade secrets used in or held for use in connection with the
operation of the domain names, copyrights, or patents from any third parties for
use in connection with the operation of the Station except pursuant to the
license agreements set forth in Schedule 1.1(d) hereto. None of Seller's
---------------
Affiliates have corporate names or
19
registered d/b/a's that incorporate "KXTX" or any other trademark, service ▇▇▇▇
or trade name included in the Assets.
6.11 Contracts. Schedule 1.1(c) hereto sets forth all personal
--------- ---------------
property leases, and other contracts, agreements, and commitments to which
Seller or the Station is a party as of the date hereof and which are included in
the Assets. Seller will make available to Purchaser, upon Purchaser's request,
true and complete copies of all such written contracts, leases, agreements, and
commitments, and true and complete memoranda of all oral contracts, leases,
agreements, and commitments (including any and all amendments and other
modifications to such contracts). Except as otherwise disclosed in Schedule
--------
1.1(c) hereto, all of the Assumed Contracts are in full force and effect, and
------
are valid, binding, and enforceable against Seller, and to the knowledge of
Seller each other party thereto, in accordance with their terms, subject to the
qualifications set forth in clauses (i), (ii), and (iii) of Section 6.2 hereof.
-----------
Seller is not in material breach, nor to Seller's knowledge is any other party
in material breach, of the terms of any of the Assumed Contracts. Except as
expressly set forth in Schedule 1.1(c), none of ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
---------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ has received written notice
from any party to any Assumed Contract indicating that such party intends (i) to
terminate such Assumed Contract, or to amend the terms thereof, (ii) to refuse
to renew the same upon the expiration of its term, or (iii) to renew the same
upon its expiration only upon terms and conditions which are more onerous than
those pertaining to such existing Assumed Contract. Except as disclosed on
Schedule 1.1(c), all oral contracts set forth thereon are terminable by the
---------------
Seller at will or upon no more than 30 days notice. Assuming that the Consents
shall have been obtained, and except as set forth on Schedule 6.11, Seller has
-------------
full legal power and authority to assign its rights under the Assumed Contracts
to Purchaser in accordance with this Agreement, and such assignment will not
affect the validity, enforceability, and continuation of any of the Assumed
Contracts.
6.12 Insurance. Seller has in full force and effect insurance
---------
insuring the properties and assets of the Station included in the Assets. Seller
has received no notice of, or other writing referring to, any requirements or
recommendations by any insurance company that has issued a policy covering any
part of the Real Property or Leased Real Property or by any board of fire
underwriters or other body exercising similar functions, requiring or
recommending any repairs or work to be done on any part of the Real Property or
Leased Real Property, which repair or work has not been completed.
6.13 Assets in Good Repair. Except as provided in Schedule 6.13
--------------------- -------------
hereto, the Assets are in good operating condition and repair (ordinary wear and
tear excepted), and are available for immediate use in the business or
operations of the Station. The Station's transmitting facilities are being
operated at full power as authorized by the FCC Licenses and in accordance with
manufacturer's specifications.
6.14 Operational Assets.
------------------
(a) The Assets, and those additional properties and assets of
Seller identified in Section 1.2 hereof, constitute all of the assets and
-----------
properties that Seller owns or leases in connection with its operation of the
Station as of the date hereof.
20
(b) Except as set forth on Schedule 6.14 hereto or as otherwise
-------------
contemplated by this Agreement, the Assets will permit the Station to be
operated by Purchaser in the manner it is presently being operated by Seller and
substantially in accordance with the terms of the FCC Licenses and the rules and
regulations of the FCC, and with all other applicable Federal, state, and local
statutes, ordinances, rules, and regulations.
6.15 Required Consents. Except for the FCC Consent, expiration
-----------------
or termination of the waiting period under the HSR Act, and the Consents
described in Schedule 6.15 hereto, no consent, approval, permit, or
-------------
authorization of, or declaration to, or filing with, any governmental or
regulatory authority or any other third party is required to be obtained by
Seller in order (i) to consummate the transactions contemplated by this
Agreement, or (ii) to permit Seller to assign or transfer the Assets to
Purchaser.
6.16 Employee Benefits. Schedule 6.16 hereto contains a complete list
----------------- -------------
of the employees of the Station (the "Subject Employees"), and the rate of pay
-----------------
for each such employee. Purchaser may, but is not obligated to, extend offers of
employment effective as of the Closing Date to any or none of the Subject
Employees on terms and conditions to be determined by Purchaser in its sole
discretion. Purchaser will notify Seller within ninety (90) days after the date
hereof of which Subject Employees, if any, the Purchaser intends to make offers
of employment. Seller has furnished Purchaser with true and complete copies of
any contracts with such Subject Employees, provided, however, Purchaser shall
-------- -------
have no obligation to assume any such contract. Seller is not aware of the
existence of any pending, threatened or anticipated governmental audit or
examination of any employee benefit plan ("Employee Benefit Plan"), as defined
---------------------
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Compensation Arrangement, as defined below, applicable to
-----
any Subject Employee. There exists no action, suit, or claim (other than routine
claims for benefits) with respect to any such plans or arrangements pending, or,
to the knowledge of Seller, threatened or anticipated, against any of such
Employee Benefit Plan or Compensation Arrangement applicable to any Subject
Employee. Neither Purchaser nor any entity related to Purchaser under Section
414 of the Code, or any officers, directors, partners, employees, or affiliates
of the same, shall have any liability, obligation, or responsibility with
respect to claims or liabilities arising or accruing under any Employee Benefit
Plan or Compensation Arrangement (whether or not applicable to any Subject
Employee) maintained or provided by Seller or any other entity related to Seller
under Section 414 of the Code or any trade or business that together with Seller
would be deemed a single employer within the meaning of Section 4001(b) of ERISA
("ERISA Affiliate") which plan or arrangement relates to any period whatsoever.
---------------
Seller has complied in all material respects with Part 6 of Subtitle B of Title
I of ERISA or Section 4980B of the Code (hereinafter collectively referred to as
"COBRA"), and will provide such continuation of health benefit coverage to the
-----
extent required by reason of the events occurring prior to or on the Closing
Date or by reason of the transactions contemplated by this Agreement. Neither
Purchaser nor any entity related to Purchaser under Section 414 of the Code, nor
any ERISA Affiliate of Purchaser, or any officers, directors, partners,
employees, or affiliates of the foregoing, shall have any liability, obligation,
or responsibility with respect to penalties, claims, or liabilities arising or
accruing under COBRA with respect to any group health plan maintained by or
contributed to by Seller or any entity related to Seller under Section 414 of
the Code. For purposes of this Section 6.16, "Compensation Arrangements" means
------------ -------------------------
any bonus, deferred compensation, incentive compensation, stock purchase, stock
option, severance, change in control or
21
termination pay, or profit-sharing plan, program, agreement, or arrangement and
any other employment or employee benefit plan, program, agreement or arrangement
for the benefit of any current or former employee, director, or independent
contractor.
6.17 Labor Matters. Seller is not party to, or subject to any,
-------------
collective bargaining agreements with respect to the Subject Employees. Except
as disclosed in Schedule 6.9(b) hereto, Seller has received no notice alleging
---------------
that Seller has failed to comply in any material respect with, and to Seller's
knowledge, Seller is in compliance with all applicable laws, rules and
regulations relating to the employment of labor, including those related to
wages, hours, collective bargaining, occupational safety and health, and
discrimination, with respect to the Subject Employees. No controversies,
disputes, lawsuits, arbitrations or other proceedings are pending, or, to the
best of Seller's knowledge, threatened or anticipated, between Seller and the
Subject Employees (singly or collectively), except as disclosed in Schedule
--------
6.9(b) hereto. No labor union or other collective bargaining unit represents,
------
or, to the best of Seller's knowledge, claims to represent any of the Subject
Employees. To the best of Seller's knowledge, there is no union campaign being
conducted to solicit cards from employees to authorize a union to request a
National Labor Relations Board certification election with respect to any of the
Subject Employees. Seller is and has been in compliance with all notice and
other requirements under the Worker Adjustment and Retraining Notification Act
or similar state statute.
6.18 Taxes. Except as set forth in Schedule 6.18, Seller has duly
----- -------------
filed or caused to be duly filed all Federal income tax returns and all other
Federal, state, county, local, or city tax returns which are required to have
been filed, and Seller has paid or caused to be paid all taxes shown on said
returns or on any tax assessment received by Seller to the extent that such
taxes have become due, or has set aside on its books reserves adequate
(segregated to the extent required by generally accepted accounting practices)
with respect thereto. No events have occurred which could impose upon Purchaser
any transferee liability or could result in an encumbrance on any of the Assets
for any taxes, penalties, or interest due or to become due from Seller, other
than statutory liens for taxes not yet due.
6.19 Reports. Except as stated in Schedule 6.19, all material
------- -------------
returns, reports, and statements which Seller is currently required to have
filed with the FCC or with any other governmental agency have been filed, and
all material reporting requirements of the FCC and other governmental
authorities having jurisdiction over Seller have been complied with. All of such
reports, returns, and statements are substantially complete and correct as
filed.
6.20 Asset Register. Seller has delivered to Purchaser a copy of the
--------------
Seller's asset register with respect to the Assets, which asset register
accurately lists the material items of tangible personal property included in
the Assets as of the date thereof.
6.21 No Changes. Except as set forth on Schedule 6.21, since January
---------- -------------
1, 2001, Seller has not:
(a) Suffered any Material Adverse Effect; or
22
(b) Made any sale, assignment, lease, or other transfer of any
of the Assets, other than in the normal and usual course of business, with
suitable replacements being obtained therefor to the extent required by this
Agreement.
6.22 License Assets. Schedule 1.1(a) includes a true and complete
-------------- ---------------
list of all FCC Licenses and Seller validly holds the FCC Licenses. Seller has
delivered to Purchaser true and complete copies of the FCC Licenses (including
any and all amendments and other modifications thereto). The FCC Licenses have
been validly issued and are in full force and effect. Other than the FCC
Licenses and the other Authorizations, no franchises, licenses, permits,
approvals, or authorizations are required in order for Purchaser to legally own
and operate the Station in the manner and to the full extent that it is operated
on the date hereof, and the FCC Licenses are not subject to any restriction or
condition that would limit the full operation of the Station as required by the
FCC and as presently operated, other than restrictions of general applicability
to the television broadcasting industry as a whole. Except as noted on Schedule
--------
6.22, (a) no action or proceeding is pending or, to the knowledge of Seller,
----
threatened by or before the FCC or before any other governmental body to revoke,
refuse to renew, or modify the FCC Licenses, other than proceedings of general
applicability affecting or purporting to affect all similarly situated
television broadcasting stations, and (b) no applications are currently pending
before the FCC with respect to the Station. Except for the FCC Consent, no
consent, approval, permit, or authorization or, or declaration to, or filing
with, any governmental or regulatory authority of any other third party is
required to be obtained by Seller in order to permit Seller to assign or
transfer the FCC Licenses or any other Authorizations to Purchaser. Since June
30, 1999, all material returns, reports, and statements which the Station is
currently required to have filed with the FCC or with any other governmental
agency have been filed, and all material reporting requirements of the FCC and
other governmental authorities having jurisdiction over the Station have been
complied with. All of such reports, returns, and statements are substantially
complete and correct as filed. The Station's public inspection file is located
at the Station's main studio and, is in material compliance with the FCC's rules
and regulations. Except as described in Schedule 6.22, since June 30, 1999, no
-------------
cable system (a) has advised Seller in writing of any signal quality or
copyright indemnity or other prerequisite to cable carriage of the signal of the
Station, and (b) to Seller's knowledge has declined or threatened to decline in
writing such carriage or failed to respond to a request for carriage or sought
any form of relief from carriage of the Station's signal from the FCC. Exhibit A
to Schedule 6.22 contains a listing of all cable systems in the Dallas-Fort
-------------
Worth area television market that carry the Station as of the date hereof, as
well as the Station's channel position on such cable systems.
6.23 Dispositions. Seller hereby represents that as of the date
------------
hereof other than pursuant hereto, it (i) has not entered into any agreement
relating to a Disposition (other than the agreement dated as of March 9, 2000
with ▇▇▇▇▇▇ Telecasting of Dallas-Ft. Worth Metroplex, a California limited
partnership, which has been terminated in accordance with the terms thereof by
Seller (the "Azteca Agreement") and in connection therewith Seller has received
----------------
payment of the Escrow Funds (as such term is defined in the Azteca Agreement)),
and (ii) has not agreed to negotiate with any party with respect to a
Disposition. Seller has delivered to Purchaser complete and accurate copies of
all notices and correspondence relating to the termination of the Azteca
Agreement.
23
6.24 Survival. Except as provided herein, each of Seller's
--------
representations and warranties set forth in this Agreement shall survive the
Closing of the transactions herein contemplated, and shall not be merged
therein, for a period of twelve (12) months from and after the Closing Date. The
representations and warranties set forth in Sections 6.2, 6.6, 6.16, and 6.23
-------- --- --- ---- ----
hereof shall survive the Closing and shall continue in full force and effect for
a period equal to 30 days following the expiration of the applicable statute of
limitations; and the representations and warranties set forth in Section 6.8
-----------
shall survive the Closing and shall continue in full force and effect for two
years following the date hereof.
6.25 Reliance. The representations and warranties of Seller contained
--------
in this Agreement constitute the sole and exclusive representations and
warranties of Seller to Purchaser in connection with this Agreement and the
transactions contemplated hereby, and Purchaser acknowledges that all other
representations and warranties are specifically disclaimed and may not be relied
upon or serve as a basis for a claim against Seller. PURCHASER ACKNOWLEDGES THAT
SELLER DISCLAIMS ALL WARRANTIES OTHER THAN THOSE EXPRESSLY CONTAINED IN THIS
AGREEMENT AS TO THE PURCHASED ASSETS, EITHER EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE VII
Representations and Warranties of Purchaser, Telemundo Licensee and Parent
Each Purchasing Party represents and warrants to Seller as follows:
7.1 Good Standing. Each Purchasing Party is a corporation or limited
-------------
partnership, as the case may be, validly organized and in good standing under
the laws of the State of Delaware and on the Closing Date Purchaser and
Telemundo Licensee will be duly qualified to conduct business in the State of
Texas.
7.2 Right, Power and Authority. Each Purchasing Party has the full
--------------------------
power and authority to enter into, to execute and deliver, and to perform its
obligations under, this Agreement, the Assumption Agreement, the Escrow
Agreement, and any other instruments contemplated hereby, in each case, to which
such Purchasing Party is a party, and each such Purchasing Party has taken all
requisite action in order to authorize the execution, delivery, and performance
of this Agreement, the Assumption Agreement, and the Escrow Agreement, and the
consummation of the purchase of the Assets and the other transactions
contemplated hereby and thereby. This Agreement and the Escrow Agreement have
been duly executed and delivered by the Purchasing Party and are the legal,
valid, and binding obligations of the Purchasing Party, enforceable against the
Purchasing Party in accordance with their terms, except to the extent limited by
(i) bankruptcy, insolvency, moratorium, and other laws of general applicability
relating to or affecting the enforcement of creditors' rights, (ii) principles
of public policy, and (iii) court-applied general principles of equity.
7.3 Purchaser's Qualifications. Each Purchasing Party is qualified
--------------------------
under the rules and regulations of the FCC to enter into this Agreement and to
consummate the transactions contemplated hereby.
24
7.4 No Conflicts or Defaults. Neither the execution, delivery, nor
------------------------
performance of this Agreement by a Purchasing Party, nor the consummation of the
sale and purchase of the Assets or any other transaction contemplated hereby or
thereby, after the giving of notice, or the lapse of time, or both, (a)
conflicts with, results in a breach of, or constitutes a default under any
Federal, state, or local law, statute, ordinance, rule, or regulation, or any
court or administrative order or process applicable to such Purchasing Party,
(b) conflicts with, constitutes grounds for termination of, results in a breach
of, constitutes a default under, or accelerates or permits the acceleration of
any performance required by the terms of, any material contract, agreement,
arrangement, commitment, plan, instrument, license, or permit to which such
Purchasing Party is a party or by which such Purchasing Party is bound and which
might materially affect such Purchasing Party's ability to perform its
obligations under this Agreement, or (c) conflicts with the organizational
documents of such Purchasing Party.
7.5 Required Consents. Except for the FCC Consent and expiration or
-----------------
termination of the waiting period under the HSR Act, no consent, approval,
permit, or authorization of, or declaration to, or filing with, any governmental
or regulatory authority or any other third party is required to be obtained by
the Purchasing Parties in order (i) to consummate the transactions contemplated
by this Agreement, or (ii) to permit the Purchasing Parties to acquire the
Assets from Seller.
7.6 Broker's Fee. Except as set forth on Schedule 7.6, neither this
------------ ------------
Agreement, nor the sale and purchase of the Assets contemplated by this
Agreement, was induced or procured through the services of any person, firm,
corporation, or other entity acting on behalf of or representing any Purchasing
Party as broker, finder, investment banker, financial advisor, or in any similar
capacity.
7.7 Availability of Funds. The Purchasing Parties have funds or
---------------------
financing available to enable it to consummate the transactions contemplated by
this Agreement.
7.8 Survival. Except as provided herein, each Purchasing Party's
--------
representations and warranties set forth in this Agreement shall survive the
Closing of the transactions herein contemplated, and shall not be merged
therein, for a period of twelve (12) months from and after the Closing Date. The
representations and warranties set forth in Section 7.1 and 7.2 hereof shall
----------- ---
survive the Closing and shall continue in full force and effect for a period
equal to 30 days following the expiration of the applicable statute of
limitations.
7.9 Reliance. The representations and warranties of the Purchasing
--------
Parties contained in this Agreement constitute the sole and exclusive
representations and warranties of such Purchasing Parties to Seller in
connection with this Agreement and the transactions contemplated hereby, and
Seller acknowledges that all other representations and warranties are
specifically disclaimed and may not be relied upon or serve as a basis for a
claim against such Purchasing Parties.
ARTICLE VIII
Conditions Precedent to the Obligations of the Purchasing Parties
25
The obligations of the Purchasing Parties hereunder to close the
transactions herein contemplated are subject to the following conditions
precedent (unless any such conditions are waived in writing by Purchaser, in
Purchaser's sole discretion):
8.1 Conditions.
(a) All representations and warranties made by Seller herein to
Purchasing Parties (except for any such representation or warranty that
expressly relates solely to a date prior to the Closing Date), after
disregarding any materiality qualifications contained therein, shall be true and
correct on and as of the Closing Date, with the same effect as if such
warranties and representations had been made by Seller to Purchasing Parties on
and as of the Closing Date, with only such exceptions as would not, in the
aggregate, be reasonably expected to have a Material Adverse Effect;
(b) Seller shall have performed and complied in all material
respects, after disregarding any materiality qualifications contained therein,
with all agreements, covenants, and conditions herein required to be performed
or complied with on Seller's part on or prior to the Closing Date, with only
such exceptions as would not, in the aggregate, be reasonably expected to have a
Material Adverse Effect;
(c) each of the Material Consents shall have been duly obtained
and delivered to Purchaser, with no material adverse change to the terms of the
Assumed Contracts with respect to which such Material Consent shall have been
obtained, unless Purchaser shall have consented in writing to such change;
(d) Seller shall be the holder of the FCC Licenses and there
shall not have been any modification with respect to such FCC Licenses which has
a material adverse effect on the Station or the conduct of its business or
operations other than proceedings generally applicable to the television
broadcast industry;
(e) no proceeding shall be pending, the effect of which would be
to revoke, cancel, fail to renew, suspend, or adversely modify the FCC Licenses;
(f) Seller shall have made, or shall stand willing and able to
make, all deliveries to Purchaser required to be made pursuant to this
Agreement;
(g) the waiting period with respect to any filings made by the
parties under the HSR Act shall have expired or been terminated;
(h) the FCC Consent shall have been granted without any Material
Condition (as defined in Section 8.3) to Telemundo Licensee and such FCC Consent
-----------
shall be in full force and effect; provided, however, that in the event a
-------- -------
petition to deny or other objection that in the reasonable judgment of all
parties hereto is deemed to be non-frivolous or having merit was filed against
the FCC Application, prior to the grant of the FCC Consent, such FCC Consent
shall have become a Final Order. For the purpose of this Agreement, an action or
order of the FCC granting the FCC's consent shall be deemed to have become a
"Final Order" when such action or order shall have been issued by the FCC in
-----------
writing, setting forth the FCC Consent, and (A) such action or order shall not
have been reversed, stayed, enjoined, set aside, annulled or
26
suspended, and (B) no protest, request for stay, reconsideration or review by
the FCC on its own motion or by any third party petition for FCC reconsideration
or for rehearing, application for FCC review, or judicial appeal of such action
or order shall be pending, and the period provided by law for initiating such
protest, request for stay, reconsideration or review by the FCC on its own
motion, or third party petition for FCC reconsideration or for rehearing,
application for FCC review, or judicial appeal of such action or order shall
have expired; and
(i) Seller shall have obtained, and shall have effective, a
certificate of occupancy in Seller's name from the City of Dallas with respect
to the Leased Real Property located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇.
8.2 Deliveries to Purchaser. At the Closing there shall be
-----------------------
delivered to Purchaser:
(a) The opinion of Seller's legal counsel, dated the Closing
Date in substantially the form of Schedule 8.2(a) hereto, and including
---------------
customary qualifications and limitations;
(b) Certificates dated as of the Closing Date, executed by a
general partner of Seller certifying that the conditions specified in Section
-------
8.1(a) and (b) have been satisfied;
------ ---
(c) Copies of all books, files and records or portions of such
books, files and records required to be delivered pursuant to Section 1.1(f)
--------------
hereof, provided that all such files and records shall be deemed to have been
delivered to Purchaser if the same shall be located at the premises of the
Station on the Closing Date; and
(d) The documents and instruments required to be delivered by
Seller to Purchaser at the Closing under Section 2.2(a) hereof.
--------------
(e) A guaranty, substantially in the form attached hereto as
Exhibit 8.2(e), executed by Southwest Sports Group Holdings LLC in favor of
--------------
Purchaser.
8.3 No Challenges. No proceeding or formal investigation by or
-------------
before any court or governmental agency including the FCC shall be pending or
threatened and no statute, rule or regulation shall have been enacted, by any
state or Federal government or governmental agency which would reasonably be
expected to prevent the consummation of the transactions contemplated by this
Agreement or impose Material Conditions with respect thereto. For purposes of
this Agreement, a "Material Condition" shall be any condition materially adverse
------------------
to Seller's use and enjoyment of the Assets prior to Closing or to the
Purchasing Parties' use and enjoyment of the Assets after the Closing, but shall
not include (i) any condition generally applicable to the broadcast industry, or
(ii) with respect to a condition imposed on a Purchasing Party, any condition
imposed as a result of any act or failure to act by such party, or (iii) with
respect to a condition imposed on Seller, any condition imposed as a result of
any act or failure to act by Seller.
8.4 Organizational Documents. Purchaser shall have received from
------------------------
Seller a certificate from the Secretary of State of Texas as to the valid
existence of Seller in such
27
jurisdiction, and a copy of the resolutions of the general partner of Seller
authorizing its execution and delivery of this Agreement and its performance of
its obligations hereunder, which copies shall be certified by the general
partner of Seller, such certification to be reasonably satisfactory to
Purchaser.
ARTICLE IX
Conditions Precedent to the Obligations of Seller
The obligations of Seller hereunder to close the transactions herein
contemplated are subject to the following conditions precedent (unless any such
conditions are waived in writing by Seller, in Seller's sole discretion):
9.1 Conditions.
----------
(a) All representations and warranties made by the Purchasing
Parties herein to Seller (except for any such representation or warranty that
expressly relates solely to a date prior to the Closing Date), after
disregarding any materiality qualifications contained therein, shall be true and
correct in all material respects on and as of the Closing Date, with the same
effect as if such warranties and representations had been made by the Purchasing
Parties to Seller on and as of the Closing Date, with only such exceptions as
would not, in the aggregate, be reasonably expected to have a material adverse
impact on the consummation of the transactions contemplated by this Agreement;
(b) the Purchasing Parties shall have performed and complied in
all material respects, after disregarding any materiality qualifications
contained therein, with all agreements, covenants, and conditions herein
required to be performed or complied with on Purchaser's part on or prior to the
Closing Date, with only such exceptions as would not, in the aggregate, be
reasonably expected to have a material adverse impact on the consummation of the
transactions contemplated by this Agreement;
(c) the Purchasing Parties shall have made, or shall stand
willing and able to make, all deliveries to Seller required to be made pursuant
to this Agreement;
(d) the waiting period with respect to any filings made by the
parties under the HSR Act shall have expired or been terminated; and
(e) the FCC Consent shall have been granted and shall be in full
force and effect without any Material Condition to Seller.
9.2 Deliveries to Seller. At the Closing there shall be delivered to
--------------------
Seller:
(a) The opinion of Purchaser's legal counsel, dated the Closing
Date, in substantially the form of Schedule 9.2(a) hereto, and including
---------------
customary qualifications and limitations;
(b) A certificate, dated as of the Closing Date, executed by an
executive officer of Purchaser, certifying that the conditions specified in
Section 9.1 (a) and (b) shall have been satisfied; and
--------------- ---
28
(c) The documents and instruments required to be delivered by
Purchaser to Seller at the Closing under Section 2.2(b) hereof.
--------------
9.3 No Challenges. Except as otherwise disclosed in this Agreement,
-------------
no proceeding or formal investigation by or before any court or governmental
agency including the FCC shall be pending or, to the knowledge of Seller,
threatened and no statute, rule or regulation shall have been enacted by any
state or Federal government or governmental agency which would reasonably be
expected to prevent the consummation of the transactions contemplated by this
Agreement or impose Material Conditions with respect thereto.
9.4 Organizational Documents. Seller shall have received from each
------------------------
Purchasing Party certificates from the Secretaries of State of Delaware and,
except for Parent, Texas as to the good standing of such Purchasing Party in
such states, and a copy of the resolutions of the board of directors or general
partner, as the case may be, of such Purchasing Party authorizing its execution
and delivery of this Agreement and its performance of its obligations hereunder,
which copies shall be certified by an authorized representative of each such
Purchasing Party, such certification to be reasonably satisfactory to Seller.
ARTICLE X
Rights of Purchaser and Seller Upon Termination or Breach
10.1 Termination. This Agreement may be terminated by either Purchaser
-----------
or Seller, as appropriate (if the terminating party is not then in breach of any
material provision of this Agreement), upon written notice to the other party,
upon the occurrence of any of the following:
(i) if at any time prior to the Closing Date, there shall have
occurred a material breach of a representation or warranty of the
non-terminating party contained herein, or a material default in the performance
by the non-terminating party of a covenant or obligation of such non-terminating
party contained herein, and if such breach or default shall not have been cured
within thirty (30) days, with curative steps having been commenced within
fifteen (15) days, from and after the date upon which written notice thereof
shall have been given to the non-terminating party by the terminating party;
(ii) by Purchaser pursuant to Section 5.4 of this Agreement;
-----------
(iii) by either party if the FCC denies the FCC Application or
designates the FCC Application for an adjudicatory hearing;
(iv) by mutual agreement of Seller and Purchaser;
(v) by either party if (a) there shall be any law or regulation
that makes consummation of the transactions contemplated hereby illegal or
otherwise prohibited or (b) any court of competent jurisdiction in the United
States or any State shall have issued an order, judgment or decree (other than a
temporary restraining order) restraining, enjoining or otherwise prohibiting the
transactions contemplated hereby and such order, judgment or decree shall have
become final and nonappealable; or
29
(vi) by either party if the Closing has not occurred by June 30,
2002; provided, however, that this Agreement may not be terminated pursuant to
-------- -------
this Section 10.1(vi) by a party then in material breach of any of its
----------------
representations or warranties contained herein, or in material default of any of
its covenants or obligations herein.
10.2 Effect of Termination. If this Agreement is terminated as
---------------------
provided in Section 10.1, no party hereto shall have any liability or further
------------
obligation to any other party to the Agreement resulting from such termination
except that the provisions of this Section 10.2, Section 4.1, Section 10.3 and
------------ ----------- ------------
Section 12.4 shall remain in full force and effect. If this Agreement is
------------
terminated by Purchaser pursuant to Section 10.1(i), Seller shall indemnify each
---------------
Purchasing Party and hold each Purchasing Party harmless from and against, and
shall indemnify the Purchasing Parties for Purchaser Losses (as defined in
Section 11.2 hereof); provided, however, Purchasing Parties shall not be
------------ ------ -------- -------
entitled to indemnification for purposes of this Section 10.2) from Seller in an
------------
aggregate amount in excess of Three Million Two Hundred Fifty Thousand Dollars
($3,250,000).
10.3 Release of Escrow; Liquidated Damages. If this Agreement is
-------------------------------------
terminated by Seller pursuant to Section 10.1(i), Purchaser and Seller shall
---------------
jointly instruct the Escrow Agent to disburse the Escrow Funds to or at the
discretion of Seller as and for liquidated damages and full payment and the
exclusive remedy for any damages suffered by Seller by reason of such event. The
parties hereto agree in advance that actual damages would be difficult to
ascertain and that the amount of the Escrow Funds is a fair and equitable amount
to reimburse Seller for damages sustained due to such event. In the event this
Agreement is terminated under any other provision of Section 10.1, Purchaser and
------------
Seller shall jointly instruct the Escrow Agent to disburse the Escrow Funds to
or at the discretion of Purchaser.
ARTICLE XI
Indemnification
11.1 Continuing Effect. All representations and warranties contained
-----------------
in this Agreement shall survive the Closing for the periods provided in Sections
--------
6.24 and 7.8 hereof. The covenants contained in Sections 2.2(c), 2.3(c), 5.1,
---- --- --------------- ------ ---
5.7, 5.8, 5.10, 5.11, 5.12, 5.16, 5.17, 12.1, 12.2 and 12.4 and Article XI of
--- --- ---- ---- ---- ---- ---- ---- ---- ---- ----------
this Agreement shall survive the Closing of the transactions herein
contemplated, and shall not be merged therein. All other covenants contained in
this Agreement shall expire at, and shall not survive, the Closing. Any
investigations by or on behalf of any party hereto shall not constitute a waiver
as to the enforcement of any representation, warranty, or covenant contained
herein.
11.2 Indemnification by Seller. Notwithstanding the Closing, and
-------------------------
regardless of any investigation made at any time by or on behalf of Purchaser,
or any information that Purchaser may have, Seller shall (subject to the
provisions of Section 11.3 hereof) indemnify each Purchasing Party and hold each
------------
Purchasing Party harmless from and against, and shall reimburse each Purchasing
Party for Purchaser Losses. "Purchaser Losses" shall mean any and all losses,
----------------
liabilities, obligations, judgments, damages, deficiencies, costs, penalties,
and expenses (including, without limitation, reasonable attorneys' fees and
expenses) based upon, attributable to or resulting from:
30
(a) any untrue representation, breach of warranty, or
nonfulfillment of any covenant by Seller contained herein or in any certificate,
document, or instrument (including, without limitation, the schedules hereto)
delivered or to be delivered to Purchaser under this Agreement; the
representations and warranties of Seller contained herein shall not be deemed
qualified by any references herein to materiality generally or to whether or not
any such breach or inaccuracy results or may result in a Material Adverse
Effect;
(b) any and all obligations of Seller not included in the
Assumed Contract Obligations;
(c) Seller's operation or ownership of the Station and/or the
Assets prior to the Closing Date, including any and all liabilities arising
under the Authorizations (including the FCC Licenses) or the Assumed Contracts
which relate to events occurring prior to the Closing Date, except to the extent
otherwise provided in this Agreement;
(d) any third party claims related to equipment or services
commissioned, purchased or ordered by ▇▇▇▇▇▇ Telecasting or its affiliates in
connection with the Assets and the Station;
(e) Seller's failure to provide to Purchaser the Leased Real
Property located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ in good operating
condition and repair (ordinary wear and tear excepted), with the changes
specified in Exhibit B of Schedule 4.2 hereto, except to the extent Purchase
------------
Price credits have been provided to Purchaser in lieu of replacing production
control room equipment and the 10 meter dish as set forth in Items 2 and 4,
respectively, of Exhibit B of Schedule 4.2 hereto; and
------------
(f) the Azteca Agreement, including any suit, action or
proceeding brought by, directly or indirectly, on behalf of or for the benefit
of ▇▇▇▇▇▇ Telecasting of the Dallas-Ft.Worth Metroplex, a California limited
partnership, or any affiliate or related party thereto, as a result of the
execution of this Agreement, the performance of the obligations set forth
herein, or the transaction contemplated hereby.
11.3 Indemnification Limitations of Seller. Seller's obligation to
-------------------------------------
indemnify each Purchasing Party and to hold each Purchasing Party harmless from
and against, and to reimburse each Purchasing Party for Purchaser Losses, shall
be subject to the following limitations:
(a) The Purchasing Parties shall not be entitled to any
indemnification from Seller, except for indemnification for Purchaser Losses
under Section 11.2(d), (e) and (f), unless and until the total value of all of
--------------- --- ---
the Purchasing Parties' claims for indemnification for Purchaser Losses shall
have exceeded One Hundred Thousand Dollars ($100,000), whereupon Seller shall
then indemnify the Purchasing Parties for all such claims.
(b) Purchasing Parties shall not be entitled to indemnification
from Seller in an aggregate amount in excess of Ten Million Dollars
($10,000,000); provided, however, that indemnification for Purchaser Losses
-------- -------
under Section 11.2(d), (e) and (f) should not be included in determining whether
--------------- --- ---
the $10,000,000 aggregate amount has been exceeded and shall not be subject to
such $10,000,000 limitation.
31
(c) Purchasing Parties shall not be entitled to indemnification
from Seller for any claim based upon an alleged breach of or default under any
representation or warranty of Seller that shall have expired pursuant to Section
-------
6.24 hereof, unless such Purchasing Party shall have notified Seller in writing
----
in reasonable detail of such claim for indemnification prior to such expiration
date.
11.4 Indemnification by Purchaser. Notwithstanding the Closing, and
----------------------------
regardless of any investigation made at any time by or on behalf of Seller, or
any information that Seller may have, Purchaser, Parent and Telemundo Licensee
shall jointly and severally (subject to the provisions of Section 11.5 hereof)
------------
indemnify Seller and hold Seller harmless from and against, and shall reimburse
Seller for Seller Losses "Seller Losses" shall mean any and all losses,
-------------
liabilities, obligations, judgments, damages, deficiencies, costs, penalties and
expenses (including without limitation, reasonable attorney's fees and expenses)
based upon, attributable to or resulting from:
(a) any untrue representation, breach of warranty, or
nonfulfillment of any covenant by Purchaser contained herein or in any
certificate, document, or instrument delivered or to be delivered to Seller
under this Agreement;
(b) Purchaser's operation or ownership of the Station on and
after the Closing Date, including any and all liabilities arising under the
Authorizations (including the FCC Licenses) or the Assumed Contracts which
relate to events occurring on and after the Closing Date; and
(c) any Assumed Contract Obligations.
11.5 Indemnification Limitations of Purchaser. Purchaser's, Parent's
----------------------------------------
and Telemundo Licensee's obligation to indemnify Seller and to hold Seller
harmless from and against, and to reimburse Seller for Seller Losses shall be
subject to the following limitations:
(a) Seller shall not be entitled to any indemnification from
Purchaser, Parent or Telemundo Licensee unless and until the total value of all
of Seller's claims for Seller Losses shall have exceeded One Hundred Thousand
Dollars ($100,000), whereupon Purchaser shall then indemnify Seller for all such
claims.
(b) Seller shall not be entitled to indemnification from
Purchaser, Parent and Telemundo Licensee collectively in excess of Ten Million
Dollars ($10,000,000).
(c) Seller shall not be entitled to indemnification from
Purchaser, Parent or Telemundo Licensee for any claims based upon an alleged
breach of or default under any representation or warranty of Purchaser that
shall have expired pursuant to Section 7.8 hereof, unless Seller shall have
-----------
notified Purchaser in writing of such claim for indemnification prior to such
expiration date.
11.6 Indemnification Procedure. The procedure for indemnification
-------------------------
pursuant to Sections 11.2 and 11.4 hereof shall be as follows:
------------- ----
32
(a) The party claiming indemnification (the "Claimant') shall
--------
promptly give notice to the party from whom such indemnification is claimed (the
"Indemnifying Party") of any claim, whether between the parties hereto or
------------------
brought by a third party against Claimant, specifying in such notice (i) the
factual basis for such claim, and (ii) the amount of the claim, if known, if the
claim relates to an action, suit, or proceeding filed by a third party against
Claimant, such notice shall be given by Claimant within five (5) business days
after written notice of such action, suit, or proceeding was given to Claimant;
provided, however, that failure of Claimant to give such notice within such five
-------- -------
business day period shall limit Claimant's right to indemnification hereunder
only to the extent the Indemnifying Party's defense of such claim is actually
prejudiced by such delay.
(b) Following receipt of notice from Claimant of a claim which
does not relate to a third party claim, the Indemnifying Party shall have thirty
(30) days in which to make such investigation of the claim as Indemnifying Party
shall deem necessary or desirable. For the purposes of such investigation,
Claimant agrees to make available to Indemnifying Party and/or to its authorized
representative(s) the information relied upon by Claimant to substantiate the
claim. If Claimant and Indemnifying Party shall have agreed at or prior to the
expiration of the said thirty (30) day period (or any mutually agreed-upon
extension thereof) to the validity and amount of such claim, Indemnifying Party
shall immediately pay to Claimant the amount so agreed upon. If Claimant and
Indemnifying Party shall not have agreed to the validity and amount of such
claim within the said thirty (30) day period (or any mutually agreed-upon
extension thereof), Claimant may seek appropriate legal remedy.
(c) With respect to any claim by a third party as to which
Claimant is entitled to indemnification hereunder, Indemnifying Party shall have
the right at its own expense to participate in or to assume control of the
defense of such claim, and Claimant shall cooperate fully with Indemnifying
Party, subject to reimbursement for actual out-of-pocket expenses incurred by
Claimant as the result of a request to Claimant by Indemnifying Party. If
Indemnifying Party elects to assume control of the defense of any third-party
claim, Claimant shall have the right to participate in the defense of such claim
at Claimant's own expense; provided, however, that Claimant's participation
-------- -------
shall not interfere with Indemnifying Party's defense of such claim. If
Indemnifying Party does not elect to assume control or otherwise to participate
in the defense of any third-party claim, Indemnifying Party shall be bound by
the results obtained by Claimant with respect to such claim.
(d) If a claim, whether between the parties hereto or by a third
party, shall require immediate action, the parties hereto will make every effort
to reach a decision with respect thereto as expeditiously as possible.
(e) The indemnification rights provided in Sections 11.2 and
-------------
11.4 hereof shall extend to the partners, shareholders, directors, officers,
----
employees, and representatives of Claimant, although for the purpose of the
procedures set forth in this Section 11.6, any indemnification claims by such
------------
parties shall be made by and through Claimant.
11.7 Exclusive Remedy. After the Closing, the exclusive remedy of
----------------
Seller or Purchaser with respect to any claim of the type described in Section
-------
11.2 or Section 11.4 shall be a claim for indemnification pursuant to the terms
---- ------------
and conditions of this Article XI.
----------
33
11.8 Tax Treatment of Payments Under Article XI. Seller and Purchaser
------------------------------------------
mutually agree that unless otherwise required by applicable law or a taxing
authority, all payments received by a Claimant from an Indemnifying Party
pursuant to the provisions of this Article XI shall be treated for tax purposes
----------
as an adjustment to the Purchase Price.
ARTICLE XII
Miscellaneous
12.1 Respective Costs. Except as otherwise specifically provided
----------------
herein, Purchaser on the one hand, and Seller on the other hand, will each pay
its own costs and expenses (including attorneys' fees, accountants' fees, and
other professional fees and expenses) in connection with the negotiation,
preparation, execution, delivery, and performance of this Agreement and the
consummation of the purchase and sale of the Assets and the other transactions
contemplated by this Agreement.
12.2 Books and Records. For a period of three (3) years from the
-----------------
Closing Date, Purchaser will not destroy nor otherwise dispose of any of the
books and records of the Station acquired by Purchaser hereunder, unless
consented to in advance in writing by Seller, without first offering to
surrender to Seller such books and records or any portion thereof that Purchaser
may intend to destroy or dispose of. Purchaser shall allow Seller's
representatives, attorneys, and accountants access to such books and records,
upon Seller's reasonable request therefor and during Purchaser's normal business
hours, for examination and/or copying. For a period of three (3) years from the
Closing Date, Seller will not destroy nor otherwise dispose of any of the books
and records (including any tax returns) related to the Assets acquired by
Purchaser hereunder, unless consented to in advance in writing by Purchaser,
without first offering to surrender to Purchaser such books and records or any
portion thereof that Seller may intend to destroy or dispose of. Seller shall
allow Purchaser's representatives, attorneys, and accountants access to such
books and records, upon Purchaser's reasonable request therefor and during
Seller's normal business hours, for examination and/or copying.
12.3 Entire Understanding. This Agreement, including the Schedules and
--------------------
Exhibits hereto, the Escrow Agreement, and the agreements and other documents
contemplated hereby or executed in connection herewith contain the entire
understanding among the parties hereto with respect to the transactions
contemplated herein and therein, and supersede all negotiations,
representations, warranties, commitments, offers, letters of intent, contracts,
agreements, understandings, and writings not set forth herein or therein. No
waiver and no modification or amendment of any provision of this Agreement shall
be effective, unless specifically made in writing and duly signed by all parties
hereto.
12.4 Confidentiality.
---------------
(a) Except as necessary for the consummation of the transactions
contemplated by this Agreement, and except as and to the extent required by law,
each party will keep confidential, and shall cause its representatives,
advisors, attorneys, and financing sources to keep confidential, any information
obtained from the other party in connection with the transactions contemplated
by this Agreement. If this Agreement is terminated, each party will
34
return to any other party that furnished it with information in connection with
the transactions contemplated by this Agreement all such information.
(b) No party shall publish any press release or make any other
public announcement concerning this Agreement or the transactions contemplated
hereby without the prior written consent of each other party, which shall not be
withheld unreasonably; provided, however, that nothing contained in this
-------- -------
Agreement shall prevent any party, after notification to and consultation with
the other party, from making any filings with governmental authorities that, in
its judgment, may be required or advisable in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
12.5 Headings. The Article and Section headings contained herein are
--------
for convenience and for reference purposes only, and shall not in any way affect
the meaning or interpretation of this Agreement.
12.6 Counterparts. This Agreement may be executed in one (1) or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one (1) and the same instrument.
12.7 Choice of Law. This Agreement shall be governed by, and shall be
-------------
construed in accordance with, the internal laws of the State of Texas governing
contracts made and to be performed entirely within such State, without reference
to any choice-of-law principles of the laws of such State. If any provision
herein shall be held to be invalid or unenforceable by any court of competent
jurisdiction or as a result of future legislative or administrative action, such
holding or action shall be strictly construed and shall not affect the validity
or the enforceability of any other provision herein.
12.8 No Third-Party Beneficiaries. The terms and provisions of this
----------------------------
Agreement are intended solely for the benefit of Seller, Purchaser, Telemundo
Licensee, Parent and their respective successors and permitted assigns, and it
is not the intention of the parties to confer third-party beneficiary rights
upon any other person or entity.
12.9 Benefit and Binding Effect. This Agreement shall be binding
--------------------------
upon, and shall insure to the benefit of, the successors and permitted assigns
of the parties hereto. No party may assign any of its rights, interests, or
obligations under this Agreement without the prior written consent of the other
party hereto, except that without the consent of Seller, a Purchasing Party may
assign its rights, interests, and obligations under this Agreement, in whole or
in part, to any entity controlled by, controlling, or under common control with,
the Purchaser (a "Telemundo Entity"). Notwithstanding the foregoing, no
----------------
assignment by Seller or a Purchasing Party shall be permitted after the
applications requesting FCC Consent to the transactions contemplated herein have
been filed with the FCC if such an assignment would result in a situation in
which a new file number will be assigned to any such application under 47 C.F.R.
(S) 73.3572. If a Purchasing Party assigns its rights, interests, and
obligations under this Agreement to a Telemundo Entity, Seller and such
Purchasing Party agree to amend the Agreement, if necessary, so as to eliminate
such Purchasing Party as a party hereto and to reflect the assumption by the
Telemundo Entity of the assigned obligations and liabilities of such Purchasing
Party under this Agreement.
35
12.10 Notices. All notices, requests, demands, and other
-------
communications under this Agreement shall be in writing and shall be delivered
in person or sent by overnight private commercial delivery service or by
certified or registered United States mail, postage prepaid, and addressed as
follows:
to Seller:
Southwest Sports Television, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with copies to (which shall not constitute notice to Seller):
▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
to Purchaser:
Telemundo Communications Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
with copies to (which shall not constitute notice to Purchaser):
Telemundo Communications Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
and
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
All notices and other communications required or permitted under
this Agreement which are addressed as provided in this Section 12.10, shall be
-------------
effective upon such delivery.
36
Either party may from time to time change its address for the
purpose of the giving of notices to that party, by giving to the other party a
notice specifying a new address in compliance with the provisions of this
Section 12.10.
-------------
12.11 Specific Performance. Each of Purchaser and Seller
--------------------
acknowledges and agrees that the Assets are unique and that Purchaser would be
damaged irreparably in the event Seller fails to transfer the Assets to
Purchaser upon satisfaction of the conditions set forth in Section 9.1 of this
-----------
Agreement. Accordingly, Purchaser and Seller agree that Purchaser shall be
entitled to enforce specifically the provisions of Section 1.1 of this Agreement
-----------
and the terms and provisions hereof, upon satisfaction of the conditions set
forth in Section 9.1.
-----------
12.12 Waiver. The failure of any party hereto to comply with any
------
representation, warranty, covenant or agreement contained in this Agreement may
be waived only by a written instrument signed by the party granting such waiver.
No action taken pursuant to this Agreement, including any investigation by or on
behalf of any party shall be deemed to constitute a waiver by a party taking
such action of compliance with any representation, warranty, covenant or
agreement contained in this Agreement, and no failure by any party to take any
action with respect to any breach of this Agreement or default by any other
party shall constitute a waiver of such party's right to enforce any provision
hereof or to take any such action. The waiver by any party hereto of a breach of
any provision hereunder shall not operate as a waiver of any prior or subsequent
breach of the same or any other provision hereunder.
12.13 Amendment. This Agreement may not be amended except by an
---------
instrument in writing signed on behalf of each of the parties hereto.
12.14 Severability. If any provision of this Agreement shall be
------------
held invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof. If any provision of this Agreement is so broad as to
be unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
12.15 Other Remedies. Subject to Sections 10.3 and 11.7 hereof,
-------------- ----------------------
any and all remedies herein expressly conferred upon a party shall be deemed
cumulative with and not exclusive of any other remedy conferred hereby or by law
on such party, and the exercise of any one remedy shall not preclude the
exercise of any other.
37
IN WITNESS WHEREOF, the parties hereto have caused their hands
and seals to be affixed herein below on the date and year first above written.
SOUTHWEST SPORTS TELEVISION, L.P.
By: SSG Partnership Holdings LLC, its general
partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
____________________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President
TELEMUNDO COMMUNICATIONS GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Title: Sr. VP and General Counsel
-------------------------------------------
TELEMUNDO OF DALLAS, LP
By: Telemundo of Dallas Holdings, LLC, its
general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Title: Sr. VP and General Counsel
-------------------------------------------
TELEMUNDO OF DALLAS LICENSE CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Title: Sr. VP and General Counsel
-------------------------------------------