1
EXHIBIT 10.142
--------------------------------------------------------------------------------
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇ COMMUNICATIONS OF
MILWAUKEE-55, INC.
AND
CHANNEL 55 OF MILWAUKEE, INC.
* * *
NOVEMBER 21, 1996
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Accounts Receivable" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Affiliation Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assumed Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Consents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Consent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Final Order" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Intangibles" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Loan Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Real Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Tangible Personal Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Time Brokerage Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2. PURCHASE AND SALE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Agreement to Sell and Buy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Excluded Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.4 Payment of Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.5 Assumption of Liabilities and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1 Organization, Standing, and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4 Governmental Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.5 Title to and Condition of Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.6 Title to and Condition of Tangible Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.7 Assumed Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.8 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
- i -
3
Page
----
3.9 Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.10 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.11 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.12 Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.14 Claims and Legal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.15 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.17 Conduct of Business in Ordinary Course . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.18 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.19 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.20 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.1 Organization, Standing, and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.4 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.5 Buyer Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.6 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.2 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.3 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.4 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.5 Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.6 Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.7 Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.8 No Inconsistent Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.9 Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.10 Maintenance of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.11 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.12 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.13 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.14 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.15 Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.17 Financing Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
- ii -
4
Page
----
5.18 Programming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.19 Preservation of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.20 Collection of Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.1 FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.2 Control of the Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.3 RESERVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.4 Risk of Loss. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.5 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.6 Environmental Audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.7 Engineering Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.8 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.9 Bulk Sales Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.10 Title Insurance and Surveys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.11 Sales Tax Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.12 Access to Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.13 Appraisal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.14 Buyer Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT CLOSING . . . . . . . . . . . . . . . . . . . . . . . . 21
7.1 Conditions to Obligations of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.2 Conditions to Obligations of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8. CLOSING AND CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.2 Deliveries by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.3 Deliveries by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 9. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.1 Termination by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.2 Termination by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.3 Rights on Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.4 Survival of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
- iii -
5
Page
----
10.2 Indemnification by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.3 Indemnification by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.4 Procedure for Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.5 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
10.6 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.1 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.2 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.4 Benefit and Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.5 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.8 Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.9 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.10 Waiver of Compliance; Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.11 Press Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.12 Consent to Jurisdiction and Service of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
- iv -
6
LIST OF SCHEDULES
Exhibit A -- Affiliation Agreement
Schedule 2.2 -- Excluded Assets
Schedule 3.3 -- Consents
Schedule 3.4 -- Licenses
Schedule 3.5 -- Real Property
Schedule 3.6 -- Tangible Personal Property
Schedule 3.7 -- Contracts
Schedule 3.9 -- Intangibles
Schedule 3.12 -- Employee Matters
Schedule 3.14 -- Litigation
Schedule 8.2(i) -- Opinion of Seller's Counsel
Schedule 8.3(d) -- Opinion of Buyer's Counsel
- v -
7
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is dated as of the 21st day of November,
1996, by and between ▇▇▇▇▇▇ Communications of Milwaukee-55, Inc., a Florida
corporation ("Buyer"), and Channel 55 of Milwaukee, Inc., a Florida corporation
("Seller").
R E C I T A L S
A. Seller and Buyer are parties to an Option Agreement dated as
of July 9, 1996 (the "Option Agreement"), pursuant to which Seller granted to
Buyer an option (the "Option") to acquire from Seller substantially all of the
assets used or useful in the business or operations of Television Station
WHKE-TV, Kenosha, Wisconsin (the "Station").
B. In accordance with the Option Agreement, Buyer has notified
Seller that Buyer intends to exercise the Option.
C. Seller desires to sell, and Buyer desires to buy,
substantially all the assets that are used or useful in the business or
operations of the Station, for the price and on the terms and conditions set
forth in this Agreement.
A G R E E M E N T S
In consideration of the above recitals and of the mutual agreements
and covenants contained in this Agreement, Buyer and Seller, intending to be
bound legally, agree as follows:
SECTION 1. DEFINITIONS
The following terms, as used in this Agreement, shall have the
meanings set forth in this Section:
"Accounts Receivable" means the rights of Seller to payment for the
sale of advertising or programming time (i) run on the Station by Seller prior
to the Closing Date or (ii) run on the Station prior to the date that Seller
acquired the Station.
"Affiliation Agreement" means the Affiliation Agreement in the form of
Exhibit A hereto to be entered into upon the Closing by Buyer and The Christian
Network, Inc.
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Buyer under this Agreement, as specified in Section 2.1.
"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7
that are designated as Contracts that are to be assumed by Buyer upon its
purchase of the Station and (ii) any Contracts
8
entered into by Seller between the date of this Agreement and the Closing Date
that Buyer agrees in writing to assume.
"Closing" means the consummation of the purchase and sale of the
Assets pursuant to this Agreement in accordance with the provisions of Section
8.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to Buyer
or otherwise to consummate the transactions contemplated by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses,
and other agreements (including leases for personal or real property and
employment agreements), written or oral (including any amendments and other
modifications thereto) to which Seller is a party or which are binding upon
Seller and which relate to or affect the Assets or the business or operations
of the Station, and (i) which are in effect on the date of this Agreement or
(ii) which are entered into by Seller between the date of this Agreement and
the Closing Date.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the
assignment of the FCC Licenses to Buyer as contemplated by this Agreement.
"FCC Licenses" means all Licenses issued by the FCC to Seller in
connection with the business or operations of the Station.
"Final Order" means an action by the FCC that has not been reversed,
stayed, enjoined, set aside, annulled, or suspended, and with respect to which
no requests are pending for administrative or judicial review, reconsideration,
appeal, or stay, and the time for filing any such requests and the time for the
FCC to set aside the action on its own motion have expired.
"Intangibles" means all copyrights, trademarks, trade names, service
marks, service names, licenses, patents, permits, jingles, proprietary
information, technical information and data, machinery and equipment
warranties, and other similar intangible property rights and interests (and any
goodwill associated with any of the foregoing) applied for, issued to, or owned
by Seller or under which Seller is licensed or franchised and which are used or
useful in the business and operations of the Station, together with any
additions thereto between the date of this Agreement and the Closing Date.
- 2 -
9
"Licenses" means all licenses, permits, and other authorizations
issued by the FCC, the Federal Aviation Administration, or any other federal,
state, or local governmental authorities in connection with the conduct of the
business or operations of the Station, together with any additions thereto
between the date of this Agreement and the Closing Date.
"Loan Agreement" means the Loan Agreement dated as of July 9, 1996,
between Buyer and Seller.
"Note" means the Promissory Note dated July 9, 1996, in the principal
amount of $6,000,000, delivered by Seller to Buyer pursuant to the Loan
Agreement.
"Purchase Price" means the purchase price specified in Section 2.3.
"Real Property" means all real property and interests in real
property, including fee estates, leaseholds and subleaseholds, purchase
options, easements, licenses, rights to access, and rights of way, and all
buildings and other improvements thereon, and other real property interests
which are used or useful in the business or operations of the Station, together
with any additions thereto between the date of this Agreement and the Closing
Date.
"Tangible Personal Property" means all machinery, equipment, tools,
vehicles, furniture, leasehold improvements, office equipment, plant,
inventory, spare parts, and other tangible personal property which is used or
useful in the conduct of the business or operations of the Station, together
with any additions thereto between the date of this Agreement and the Closing
Date.
"Time Brokerage Agreement" means the Time Brokerage Agreement dated as
of July 9, 1996, between Seller and Buyer.
SECTION 2. PURCHASE AND SALE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and conditions
set forth in this Agreement, Seller hereby agrees to sell, transfer, and deliver
to Buyer on the Closing Date, and Buyer agrees to purchase, all of the tangible
and intangible assets used or useful in connection with the conduct of the
business or operations of the Station, together with any additions thereto
between the date of this Agreement and the Closing Date, but excluding the
assets described in Section 2.2, free and clear of any claims, liabilities,
security interests, mortgages, liens, pledges, conditions, charges, or
encumbrances of any nature whatsoever (except for encumbrances permitted by
Section 5.5 herein), including the following:
(a) The Tangible Personal
Property;
(b) The Real Property;
- 3 -
10
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles and all
other intangible assets of Seller relating to the Station that are not
specifically included within the Intangibles, including the goodwill of the
Station, if any, except for any lists of donors, contributors or other
supporters of the Station;
(f) All of Seller's proprietary
information, technical information and data, machinery and equipment
warranties, maps, computer discs and tapes, plans, diagrams, blueprints, and
schematics, including filings with the FCC relating to the business and
operation of the Station;
(g) The Accounts Receivable as
of 11:59 p.m., local time, on the day prior to the Closing Date;
(h) All choses in action of
Seller relating to the Station; and
(i) All books and records
relating to the business or operations of the Station, including executed
copies of the Assumed Contracts, and all records required by the FCC to be kept
by the Station.
2.2 Excluded Assets. The Assets shall exclude
the following assets:
(a) Seller's cash on hand as of
the Closing and all other cash in any of Seller's bank or savings accounts; any
insurance policies, letters of credit, or other similar items and cash
surrender value in regard thereto; and any stocks, bonds, certificates of
deposit and similar investments;
(b) All books and records that
Seller is required by law to retain and that pertain to Seller's corporate
organization;
(c) Any pension, profit-sharing,
or employee benefit plans, and any collective bargaining agreements;
(d) All property listed on
Schedule 2.2 hereto; and
(e) All lists of donors,
contributors or other supporters of the Station.
2.3 Purchase Price. The Purchase Price for the
Assets shall be (i) One Hundred Thousand Dollars ($100,000), adjusted as
provided in Section 2.3(a) below, payable in cash at the Closing and (ii) the
forgiveness on the Closing Date of all principal, accrued but unpaid
- 4 -
11
interest, fees, expenses and other charges owed by Seller to Buyer as of the
Closing Date pursuant to the Loan Agreement and the Note.
(a) Prorations. The Purchase
Price shall be increased or decreased as required to effectuate the proration
of expenses, other than expenses for which Buyer is obligated to reimburse
Seller under the Time Brokerage Agreement, for which no proration shall be
required. All expenses arising from the operation of the Station, including
business and license fees, utility charges, real and personal property taxes
and assessments levied against the Assets, property and equipment rentals,
applicable copyright or other fees, sales and service charges, taxes (except
for taxes arising from the transfer of the Assets under this Agreement), FCC
regulatory fees, and similar prepaid and deferred items, shall be prorated
between Buyer and Seller in accordance with the principle that Seller shall be
responsible for all expenses, costs, and liabilities allocable to the period
prior to the Closing Date, other than expenses for which Buyer is obligated to
reimburse Seller under the Time Brokerage Agreement, and Buyer shall be
responsible for all expenses, costs, and obligations allocable to the period on
and after the Closing Date. Notwithstanding the preceding sentence, there
shall be no adjustment for, and Seller shall remain solely liable with respect
to, any Contracts not included in the Assumed Contracts and any other
obligation or liability not being assumed by Buyer in accordance with Section
2.5.
(b) Manner of Determining
Adjustments. Any adjustments will, insofar as feasible, be determined and paid
on the Closing Date, with final settlement and payment by the appropriate party
occurring no later than ninety (90) days after the Closing Date or such other
date as the parties shall mutually agree upon.
2.4 Payment of Purchase Price. The cash portion
of the Purchase Price, as adjusted, shall be paid by Buyer to Seller at Closing
by wire transfer of same-day funds pursuant to wire instructions which shall be
delivered by Seller to Buyer, at least two days prior to the Closing Date.
2.5 Assumption of Liabilities and Obligations.
As of the Closing Date, Buyer shall assume and undertake to pay, discharge, and
perform all obligations and liabilities of Seller under the Licenses and the
Assumed Contracts insofar as they relate to the time on and after the Closing
Date, and arise out of events related to Buyer's ownership of the Assets or its
operation of the Station on or after the Closing Date. Buyer shall not assume
any other obligations or liabilities of Seller, including (i) any obligations
or liabilities under any Contract not included in the Assumed Contracts, (ii)
any obligations or liabilities under the Assumed Contracts relating to the
period prior to the Closing Date, (iii) any claims or pending litigation or
proceedings relating to the operation of the Station prior to the Closing, (iv)
any obligations or liabilities arising under capitalized leases or other
financing agreements not assumed by Buyer, (v) any obligations or liabilities
arising under agreements entered into other than in the ordinary course of
business, (vi) any obligations or liabilities of Seller under any employee
pension, retirement, or other benefit plans or collective bargaining agreements,
(vii) any obligation to any employee of the
- 5 -
12
Station for severance benefits, vacation time, or sick leave accrued prior to
the Closing Date, or (viii) any obligations or liabilities caused by, arising
out of, or resulting from any action or omission of Seller prior to the Closing,
and all such obligations and liabilities shall remain and be the obligations and
liabilities solely of Seller.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization, Standing, and Authority.
Seller is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Florida and is duly qualified and in good
standing under the laws of the State of Wisconsin. Seller has all requisite
power and authority (i) to own, lease, and use the Assets as now owned, leased,
and used, (ii) to conduct the business and operations of the Station as now
conducted, and (iii) to execute and deliver this Agreement and the documents
contemplated hereby, and to perform and comply with all of the terms,
covenants, and conditions to be performed and complied with by Seller
hereunder. Seller is not a participant in any joint venture or partnership
with any other person or entity with respect to any part of the operations of
the Station or any of the Assets.
3.2 Authorization and Binding Obligation. The
execution, delivery, and performance of this Agreement by Seller have been duly
authorized by all necessary actions on the part of Seller and its shareholder.
This Agreement has been duly executed and delivered by Seller and constitutes
the legal, valid, and binding obligation of Seller, enforceable against it in
accordance with its terms, except as the enforceability of this Agreement may
be affected by bankruptcy, insolvency, or similar laws affecting creditors'
rights generally, and by judicial discretion in the enforcement of equitable
remedies.
3.3 Absence of Conflicting Agreements. Subject
to obtaining the Consents listed on Schedule 3.3, the execution, delivery, and
performance of this Agreement and the documents contemplated hereby (with or
without the giving of notice, the lapse of time, or both): (i) do not require
the consent of any third party; (ii) will not conflict with any provision of
the Articles of Incorporation or Bylaws of Seller; (iii) will not conflict
with, result in a breach of, or constitute a default under, any law, judgment,
order, ordinance, injunction, decree, rule, regulation, or ruling of any court
or governmental instrumentality; (iv) will not conflict with, constitute
grounds for termination of, result in a breach of, constitute a default under,
or accelerate or permit the acceleration of any performance required by the
terms of, any agreement, instrument, license, or permit to which Seller is a
party or by which Seller may be bound; and (v) will not create any claim,
liability, mortgage, lien, pledge, condition, charge, or encumbrance of any
nature whatsoever upon any of the Assets.
3.4 Governmental Licenses. Schedule 3.4 includes
a true and complete list of the Licenses. Seller has delivered to Buyer true
and complete copies of the Licenses (including any
- 6 -
13
amendments and other modifications thereto). The Licenses have been validly
issued, and Seller is the authorized legal holder thereof. The Licenses listed
on Schedule 3.4 comprise all of the licenses, permits, and other authorizations
required from any governmental or regulatory authority for the lawful conduct of
the business and operations of the Station in the manner and to the full extent
they are now conducted, and none of the Licenses is subject to any restriction
or condition that would limit the full operation of the Station as now operated.
The Licenses are in full force and effect, and the conduct of the business and
operations of the Station is in accordance therewith in all material respects.
Seller has no reason to believe that any of the Licenses would not be renewed by
the FCC or other granting authority in the ordinary course. The Station's city
of license, as determined by the FCC, is located within the Milwaukee, Wisconsin
Area of Dominant Influence as defined by the 1991-1992 Area of Dominant
Influence Market Guide published by The Arbitron Co. and the Milwaukee,
Wisconsin Designated Market Area as defined by the ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Television
Household Estimates published by ▇▇▇▇▇▇▇ Media Research. To the best of
Seller's knowledge, on or before October 1, 1996, the Station made a valid
election of must carry with respect to each cable system located within the
Station's Area of Dominant Influence. Except as disclosed on Schedule 3.4, no
cable system on which the Station is entitled to must carry status has advised
the Station of any signal quality or copyright indemnity or other prerequisite
to cable carriage of the Station's signal, and no cable system has declined or
threatened to decline such carriage or failed to respond to a request for
carriage or sought any form of relief from carriage from the FCC.
3.5 Title to and Condition of Real Property.
Schedule 3.5 contains a complete and accurate description of all the Real
Property and Seller's interests therein. The Real Property listed on Schedule
3.5 comprises all real property interests necessary to conduct the business and
operations of the Station as now conducted. Seller has good and marketable fee
simple title, insurable at standard rates, to all fee estates (including the
improvements thereon) included in the Real Property, free and clear of all
liens, mortgages, pledges, covenants, easements, restrictions, encroachments,
leases, charges, and other claims and encumbrances of any nature whatsoever,
and without reservation or exclusion of any mineral, timber, or other rights or
interests, except for liens for real estate taxes not yet due and payable and
liens disclosed on Schedule 3.5. With respect to each leasehold or
subleasehold interest included in the Real Property being conveyed under this
Agreement, so long as Seller fulfills its obligations under the lease therefor,
Seller has enforceable rights to nondisturbance and quiet enjoyment, and, to
the best of Seller's knowledge, no third party holds any interest in the
leased premises with the right to foreclose upon Seller's leasehold or
subleasehold interest. All towers, guy anchors, and buildings and other
improvements included in the Assets are located entirely on the Real Property
listed in Schedule 3.5. Seller has delivered to Buyer true and complete copies
of all deeds pertaining to the Real Property. All Real Property (including the
improvements thereon) (i) is in good condition and repair consistent with its
present use, (ii) is available for immediate use in the conduct of the business
and operations of the Station, and (iii) complies in all material respects with
all applicable building or zoning codes and the regulations of any governmental
authority having jurisdiction. Seller has full legal and practical access to
the Real Property. All
- 7 -
14
easements, rights-of-way, and real property licenses affecting or constituting
part of the Real Property have been properly recorded in the appropriate public
recording offices.
3.6 Title to and Condition of Tangible Personal
Property. Schedule 3.6 lists all material items of Tangible Personal Property.
The Tangible Personal Property listed on Schedule 3.6 comprises all material
items of tangible personal property necessary to conduct the business and
operations of the Station as now conducted. Except as described in Schedule
3.6, Seller owns and has good title to each item of Tangible Personal Property,
and none of the Tangible Personal Property owned by Seller is subject to any
security interest, mortgage, pledge, conditional sales agreement, or other lien
or encumbrance, except for encumbrances permitted by Section 5.5 herein. Each
item of Tangible Personal Property is available for immediate use in the
business and operations of the Station. All items of transmitting and studio
equipment included in the Tangible Personal Property (i) have been maintained
in a manner consistent with generally accepted standards of good engineering
practice, and (ii) will permit the Station and any auxiliary broadcast stations
used in the operation of the Station to operate, in all material respects, 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.
3.7 Assumed Contracts. Schedule 3.7 is a true
and complete list of all Contracts. Seller has delivered to Buyer true and
complete copies of all written Contracts, true and complete memoranda of all
oral Contracts (including any amendments and other modifications to such
Contracts). Other than the Contracts listed on Schedule 3.7 or any other
Schedule to this Agreement, Seller requires no contract, lease, or other
agreement to enable it to carry on its business as now conducted. All of the
Assumed Contracts are in full force and effect, and are valid, binding, and
enforceable in accordance with their terms. There is not under any Assumed
Contract any default by any party thereto or any event that, after notice or
lapse of time or both, could constitute a default. Seller is not aware of any
intention by any party to any Assumed Contract (i) to terminate such contract
or amend the terms thereof, (ii) to refuse to renew the Assumed Contract upon
expiration of its term, or (iii) to renew the Assumed Contract upon expiration
only on terms and conditions which are more onerous than those now existing.
Except for the need to obtain the Consents listed in Schedule 3.3, Seller has
full legal power and authority to assign its rights under the Assumed Contracts
to Buyer in accordance with this Agreement, and such assignment will not affect
the validity, enforceability, or continuation of any of the Assumed Contracts.
3.8 Consents. Except for the FCC Consent
provided for in Section 6.1, the other Consents described in Schedule 3.3, no
consent, approval, permit, or authorization of, or declaration to or filing
with any governmental or regulatory authority, or any other third party is
required (i) to consummate this Agreement and the transactions contemplated
hereby, (ii) to permit Seller to assign or transfer the Assets to Buyer, or
(iii) to enable Buyer to conduct the
- 8 -
15
business and operations of the Station in essentially the same manner as such
business and operations are now conducted.
3.9 Intangibles. Schedule 3.9 is a true and
complete list of all Intangibles (exclusive of those listed in Schedule 3.4),
all of which are valid and in good standing and uncontested. Seller has
delivered to Buyer copies of all documents establishing or evidencing all
Intangibles. To the best knowledge of Seller, Seller is not infringing upon or
otherwise acting adversely to any trademarks, trade names, service marks,
service names, copyrights, patents, patent applications, know-how, methods, or
processes owned by any other person or persons, and there is no claim or action
pending, or to the knowledge of Seller threatened, with respect thereto. The
Intangibles listed on Schedule 3.9 comprise all intangible property interests
necessary to conduct the business and operations of the Station as now
conducted.
3.10 Insurance. All policies of insurance
covering the Assets are in full force and effect and are adequate in amount
with respect to, and for the full value (subject to customary deductibles) of,
the Assets, and insure the Assets and the business of the Station against all
customary and foreseeable risks. During the past three years, no insurance
policy of Seller on the Assets or the Station has been canceled by the insurer
and no application of Seller for insurance has been rejected by any insurer.
3.11 Reports. All Station returns, reports, and
statements required to be filed by Seller with the FCC or with any other
governmental agency have been filed, and all reporting requirements of the FCC
and other governmental authorities having jurisdiction over Seller and the
Station have been complied with by Seller in all material respects. All of
such returns, reports, and statements are substantially complete and correct as
filed. Seller has timely paid to the FCC all annual regulatory fees required
to be paid by Seller with respect to the FCC Licenses.
3.12 Personnel.
(a) Employees and Compensation.
Schedule 3.12 contains a true and complete list of all employees of the
Station, their job titles, date of hire and current salary. Schedule 3.12 also
contains a true and complete list as of the date of this Agreement of all
employee benefit plans or arrangements applicable to the employees of the
Station and all fixed or contingent liabilities or obligations of Seller with
respect to any person now or formerly employed by Seller at the Station,
including pension or thrift plans, individual or supplemental pension or
accrued compensation arrangements, contributions to hospitalization or other
health or life insurance programs, incentive plans, bonus arrangements, and
vacation, sick leave, disability and termination arrangements or policies,
including workers' compensation policies. Seller has furnished Buyer with true
and complete copies of all employee handbooks, employee
- 9 -
16
rules and regulations, and summary plan descriptions of the written plans and
arrangements listed in Schedule 3.12, and with descriptions of the unwritten
plans and arrangements listed in Schedule 3.12. At Buyer's request, Seller
will furnish Buyer with true and complete copies of all applicable plan
documents, trust documents, and insurance contracts with respect to the plans
and arrangements listed on Schedule 3.12. All employee benefits and welfare
plans or arrangements listed in Schedule 3.12 were established and have been
executed, managed and administered in accordance with the Internal Revenue Code
of 1986, as amended, the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and all other laws. Seller is not aware of the existence of
any governmental audit or examination of any of such plans or arrangements or
of any facts which would lead it to believe that any such audit or examination
is pending or threatened. No action, suit, or claim with respect to any of
such plans or arrangements (other than routine claims for benefits) is pending
or, to the knowledge of Seller, threatened, and Seller possesses no knowledge
of any facts which could give rise to any such action, suit or claim.
(b) Labor Relations. Seller is
not a party to or subject to any collective bargaining agreements with respect
to the Station. Seller has no written or oral contracts of employment with any
employee of the Station, other than those listed in Schedule 3.7. Seller has
complied with all laws, rules, and regulations relating to the employment of
labor, including those related to wages, hours, collective bargaining,
occupational safety, discrimination, and the payment of social security and
other payroll related taxes, and it has not received any notice alleging that
it has failed to comply in any material respect with any such laws, rules, or
regulations. No controversies, disputes, or proceedings are pending or, to the
best of its knowledge, threatened, between it and any employee (singly or
collectively) of the Station. No labor union or other collective bargaining
unit represents or claims to represent any of the employees of the Station. To
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 employees at the Station.
(c) Liabilities. Seller has no
liability of any kind to or in respect of any employee benefit plan, including
withdrawal liability under Section 4201 of ERISA. Seller has not incurred any
accumulated funding deficiency within the meaning of ERISA or Section 4971 of
the Internal Revenue Code. Seller has not failed to make any required
contributions to any employee benefit plan. The Pension Benefit Guaranty
Corporation has not asserted that Seller has incurred any liability in
connection with any such plan. No lien has been attached and no person has
threatened to attach a lien on any property of Seller as a result of a failure
to comply with ERISA.
3.13 Taxes. Seller has filed or caused to be
filed all federal income tax returns and all other federal, state, county,
local, or city tax returns which are required to be filed, and it has paid or
caused to be paid all taxes shown on those returns or on any tax assessment
received by it to the extent that such taxes have become due, or has set aside
on its books adequate reserves (segregated to the extent required by generally
accepted accounting principles) with respect
- 10 -
17
thereto. There are no governmental investigations or other legal,
administrative, or tax proceedings pursuant to which Seller is or could be made
liable for any taxes, penalties, interest, or other charges, the liability for
which could extend to Buyer as transferee of the business of the Station, and,
to the best knowledge of Seller, no event has occurred that could impose on
Buyer any transferee liability for any taxes, penalties, or interest due or to
become due from Seller.
3.14 Claims and Legal Actions. Except for any FCC
rulemaking proceedings generally affecting the broadcasting industry or as
listed on Schedule 3.14 attached hereto, there is no claim, legal action,
counterclaim, suit, arbitration, governmental investigation or other legal,
administrative, or tax proceeding, nor any order, decree or judgment, in
progress or pending, or to the knowledge of Seller threatened, against or
relating to Seller with respect to its ownership or operation of the Station or
otherwise relating to the Assets or the business or operations of the Station,
nor does Seller know or have reason to be aware of any basis for the same. In
particular, but without limiting the generality of the foregoing, there are no
applications, complaints or proceedings pending or, to the best of its
knowledge, threatened (i) before the FCC relating to the business or operations
of the Station other than rule making proceedings which affect the television
industry generally, (ii) before any federal or state agency relating to the
business or operations of the Station involving charges of illegal
discrimination under any federal or state employment laws or regulations, or
(iii) before any federal, state, or local agency relating to the business or
operations of the Station involving zoning issues under any federal, state, or
local zoning law, rule, or regulation.
3.15 Environmental Matters.
(a) Seller has complied in all
material respects with all laws, rules, and regulations of all federal, state,
and local governments (and all agencies thereof) concerning the environment,
public health and safety, and employee health and safety, and no charge,
complaint, action, suit, proceeding, hearing, investigation, claim, demand, or
notice has been filed or commenced against Seller in connection with its
ownership or operation of the Station alleging any failure to comply with any
such law, rule, or regulation.
(b) To the best of Seller's
knowledge, Seller has no liability relating to its ownership and operation of
the Station that could reasonably be expected to have a material adverse effect
on the business or operations of the Station (and there is no basis related to
the present operations, properties, or facilities of Seller for any present or
future charge, complaint, action, suit, proceeding, hearing, investigation,
claim, or demand against Seller giving rise to any such liability) under any
law, rule, or regulation of any federal, state, or local government (or agency
thereof) concerning release or threatened release of hazardous substances,
public health and safety, or pollution or protection of the environment.
(c) To the best of Seller's
knowledge, Seller has no liability relating to its ownership and operation of
the Station that could reasonably be expected to have a material
- 11 -
18
adverse effect on the business or operations of the Station (and Seller has not
handled or disposed of any substance, arranged for the disposal of any
substance, or owned or operated any property or facility in any manner that
could form the basis for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand (under the common law or
pursuant to any statute) against Seller giving rise to any such liability) for
damage to any site, location, or body of water (surface of subsurface) or for
illness or personal injury.
(d) To the best of Seller's
knowledge, Seller has no liability relating to its ownership and operation of
the Station that could reasonably be expected to have a material adverse effect
on the business or operations of the Station (and there is no basis for any
present or future charge, complaint, action, suit, proceeding, hearing,
investigation, claim, or demand against Seller giving rise to any such
liability) under any law, rule, or regulation of any federal, state, or local
government (or agency thereof) concerning employee health and safety.
(e) To the best of Seller's
knowledge, Seller has no liability relating to its ownership and operation of
the Station that could reasonably be expected to have a material adverse effect
on the business or operations of the Station (and Seller has not exposed any
employee to any substance or condition that could form the basis for any
present or future charge, complaint, action, suit, proceeding, hearing,
investigation, claim, or demand (under the common law or pursuant to statute)
against Seller giving rise to any such liability) for any illness or personal
injury to any employee.
(f) To the best of Seller's
knowledge, in connection with its ownership or operation of the Station, Seller
has obtained and been in compliance in all material respects with all of the
terms and conditions of all permits, licenses, and other authorizations which
are required under, and has complied with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules, and
timetables which are contained in, all federal, state, and local laws, rules,
and regulations (including all codes, plans, judgments, orders, decrees,
stipulations, injunctions, and charges thereunder) relating to public health
and safety, worker health and safety, and pollution or protection of the
environment, including laws relating to emissions, discharges, releases, or
threatened releases of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes into ambient air, surface water, ground
water, or lands or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, or chemical, industrial, hazardous, or toxic
materials or wastes.
(g) No pollutant, contaminant,
or chemical, industrial, hazardous, or toxic material or waste has ever been
manufactured, buried, stored, spilled, leaked, discharged, emitted, or released
by Seller in connection with its ownership and operation of the Station or, to
the best of Seller's knowledge, by any other party on any Real Property.
- 12 -
19
3.16 Compliance with Laws. Seller has complied in
all material respects with the Licenses and all federal, state, and local laws,
rules, regulations, and ordinances applicable or relating to the ownership and
operation of the Station. Neither the ownership or use of the properties of
the Station nor the conduct of the business or operations of the Station
conflicts with the rights of any other person or entity.
3.17 Conduct of Business in Ordinary Course.
Since July 9, 1996, Seller has conducted the business and operations of the
Station only in the ordinary course and has not:
(a) Suffered any material
adverse change in the assets or properties of the Station, including any
damage, destruction, or loss affecting any assets used or useful in the conduct
of the business of the Station;
(b) Made any sale, assignment,
lease, or other transfer of any of the Station's properties other than in the
normal and usual course of business with suitable replacements being obtained
therefor;
(c) Canceled any debts owed to
or claims held by Seller with respect to the Station, except in the normal and
usual course of business;
(d) Suffered any material
write-down of the value of any Assets or any material write-off as
uncollectible of any accounts receivable of the Station; or
(e) Transferred or granted any
right under, or entered into any settlement regarding the breach or
infringement of, any license, patent, copyright, trademark, trade name,
franchise, or similar right, or modified any existing right relating to the
Station.
3.18 Transactions with Affiliates. Seller has not
been involved in any business arrangement or relationship relating to the
Station with any affiliate of Seller, and no affiliate of Seller owns any
property or right, tangible or intangible, which is used in the business of the
Station, other than such arrangements and relationships between Seller and The
Christian Network, Inc. that have been disclosed to Buyer. As used in this
paragraph, "affiliate" has the meaning set forth in Rule 12b-2 promulgated
under the Securities and Exchange Act of 1934.
3.19 Broker. Neither Seller nor any person acting
on Seller's behalf has incurred any liability for any finders' or brokers' fees
or commissions in connection with the transactions contemplated by this
Agreement.
3.20 Full Disclosure. No representation or
warranty made by Seller in this Agreement or in any certificate, document, or
other instrument furnished or to be furnished by Seller pursuant hereto
contains or will contain any untrue statement of a material fact, or omits or
will omit to state any material fact and required to make any statement made
herein or therein not misleading.
- 13 -
20
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization, Standing, and Authority. Buyer
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Florida and is duly qualified and in good standing
under the laws of the State of Wisconsin. Buyer has all requisite power and
authority to execute and deliver this Agreement and the documents contemplated
hereby, and to perform and comply with all of the terms, covenants, and
conditions to be performed and complied with by Buyer hereunder.
4.2 Authorization and Binding Obligation. The
execution, delivery, and performance of this Agreement by Buyer have been duly
authorized by all necessary actions on the part of Buyer. This Agreement has
been duly executed and delivered by Buyer and constitutes the legal, valid, and
binding obligation of Buyer, enforceable against Buyer in accordance with its
terms, except as the enforceability of this Agreement may be affected by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally
and by judicial discretion in the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements. Subject
to obtaining the Consents, the execution, delivery, and performance by Buyer of
this Agreement and the documents contemplated hereby (with or without the
giving of notice, the lapse of time, or both): (i) do not require the consent
of any third party; (ii) will not conflict with the Articles of Incorporation
or Bylaws of Buyer; (iii) will not conflict with, result in a breach of, or
constitute a default under, any law, judgment, order, injunction, decree, rule,
regulation, or ruling of any court or governmental instrumentality; or (iv)
will not conflict with, constitute grounds for termination of, result in a
breach of, constitute a default under, or accelerate or permit the acceleration
of any performance required by the terms of, any agreement, instrument,
license, or permit to which Buyer is a party or by which Buyer may be bound,
such that Buyer could not acquire or operate the Assets.
4.4 Broker. Neither Buyer nor any person acting
on Buyer's behalf has incurred any liability for any finders' or brokers' fees
or commissions in connection with the transactions contemplated by this
Agreement.
4.5 Buyer Qualifications. Buyer is legally,
financially and otherwise qualified to be the licensee of, acquire, own and
operate the Station under the Communications Act of 1934, as now in effect, the
Telecommunications Act of 1996, and the rules, regulations and policies of the
FCC as now in effect. Buyer knows of no fact that would, under existing law
and the existing rules, regulations, policies and procedures of the FCC
disqualify Buyer as an assignee of the FCC Licenses or as the owner and operator
of the Station.
- 14 -
21
4.6 Full Disclosure. No representation or
warranty made by Buyer in this Agreement or in any certificate, document, or
other instrument furnished or to be furnished by Buyer pursuant hereto contains
or will contain any untrue statement of a material fact, or omits or will omit
to state any material fact and required to make any statement made herein or
therein not misleading.
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING
5.1 Generally. Seller agrees that, between the
date of this Agreement and the Closing Date, Seller shall operate the Station
diligently in the ordinary course of business in accordance with its past
practices (except where such conduct would conflict with the following
covenants or with Seller's other obligations under this Agreement), and in
accordance with the other covenants in this Section 5.
5.2 Compensation. Seller shall not increase the
compensation, bonuses, or other benefits payable or to be payable to any person
employed in connection with the conduct of the business or operations of the
Station, except in accordance with past practices.
5.3 Contracts. Seller will not, without the
prior written consent of Buyer, enter into any contract or commitment relating
to the Station or the Assets, or amend or terminate any Assumed Contract (or
waive any material right thereunder), or incur any obligation (including
obligations relating to the borrowing of money or the guaranteeing of
indebtedness) that will be binding on Buyer after Closing. Prior to the
Closing Date, Seller shall deliver to Buyer a list of all Contracts entered
into between the date of this Agreement and the Closing Date, together with
copies of such Contracts.
5.4 Disposition of Assets. Seller shall not
sell, assign, lease, or otherwise transfer or dispose of any of the Assets,
except where no longer used or useful in the business or operations of the
Station or in connection with the acquisition of replacement property of
equivalent kind and value.
5.5 Encumbrances. Seller shall not create,
assume or permit to exist any claim, liability, mortgage, lien, pledge,
condition, charge, or encumbrance of any nature whatsoever upon the Assets,
except for (i) liens disclosed on Schedule 3.5 and Schedule 3.6, which shall be
removed on or prior to the Closing Date, (ii) liens for current taxes not yet
due and payable, and (iii) mechanics' liens and other similar liens, which
shall be removed on or prior to the Closing Date.
5.6 Licenses. Seller shall not cause or permit,
by any act or failure to act, any of the Licenses to expire or to be revoked,
suspended, or modified, or take any action that could cause the FCC or any
other governmental authority to institute proceedings for the suspension,
- 15 -
22
revocation, or adverse modification of any of the Licenses. Seller shall not
fail to prosecute with due diligence any applications to any governmental
authority in connection with the operation of the Station.
5.7 Rights. Seller shall not waive any right
relating to the Station or any of the Assets. Seller shall not cause any cable
system located within the Station's Area of Dominant Influence to refuse to
carry the Station's signal.
5.8 No Inconsistent Action. Seller shall not
take any action that is inconsistent with its obligations under this Agreement
or that could hinder or delay the consummation of the transactions contemplated
by this Agreement.
5.9 Access to Information. Seller shall give
Buyer and its authorized representatives reasonable access to the Assets and to
all other properties, equipment, books, records, Contracts, and documents
relating to the Station for the purpose of audit and inspection.
5.10 Maintenance of Assets. Seller shall use its
best efforts and take all reasonable actions to maintain all of the Assets in
good condition (ordinary wear and tear excepted), and use, operate, and
maintain all of the Assets in a reasonable manner and in accordance with the
terms of the FCC Licenses, all rules and regulations of the FCC and generally
accepted standards of good engineering practice. Seller shall maintain
inventories of spare parts and expendable supplies at levels consistent with
past practices. If any loss, damage, impairment, confiscation, or condemnation
of or to any of the Assets occurs, other than any loss, damage or impairment
resulting from actions taken by Buyer pursuant to the Time Brokerage Agreement,
Seller shall repair, replace, or restore the Assets to their prior condition as
represented in this Agreement as soon thereafter as possible, and Seller shall
use the proceeds of any claim under any insurance policy solely to repair,
replace, or restore any of the Assets that are lost, damaged, impaired, or
destroyed.
5.11 Insurance. Seller shall maintain the
existing insurance policies on the Station and the Assets through the Closing
Date.
5.12 Consents. Seller shall use its best efforts
to obtain the Consents and the estoppel certificates described in Section
8.2(b), without any change in the terms or conditions of any Contract or
License that could be less advantageous to the Station than those pertaining
under the Contract or License as in effect on the date of this Agreement;
provided, however, that Seller's failure to obtain any Consent shall not
constitute a material breach of this Agreement. Seller shall promptly advise
Buyer of any difficulties experienced in obtaining any of the Consents and of
any conditions proposed, considered, or requested for any of the Consents. Upon
Buyer's request, Seller shall cooperate with Buyer and use it best efforts to
obtain from the lessors under each Real Property lease such estoppel
certificates and consents to the collateral assignment of the lessee's interest
under each such lease as Buyer's lenders may request.
- 16 -
23
5.13 Books and Records. Seller shall maintain its
books and records relating to the Station in accordance with past practices.
5.14 Notification. Seller shall promptly notify
Buyer in writing of any unusual or material developments with respect to the
business or operations of the Station, and of any material change in any of the
information contained in Seller's representations and warranties contained in
Section 3 of this Agreement.
5.15 Financial Information. Seller shall furnish
to Buyer such financial information regarding the Assets and the business or
operations of the Station (including information on payables and receivables)
as Buyer may reasonably request. All financial information delivered by Seller
to Buyer pursuant to this Section shall be prepared from the books and records
of Seller in accordance with generally accepted accounting principles
consistently applied, shall accurately reflect the books, records, and accounts
of the Station, shall be complete and correct in all material respects, and
shall present fairly the financial condition of the Station as at their
respective dates and the results of operations for the periods then ended.
5.16 Compliance with Laws. Seller shall comply in
all material respects with all laws, rules, and regulations applicable or
relating to the ownership and operation of the Station.
5.17 Financing Leases. Seller will satisfy at or
prior to Closing all outstanding obligations under capital and financing leases
with respect to any of the Assets and obtain good title to the Assets leased by
Seller pursuant to those leases so that those Assets shall be transferred to
Buyer at Closing free of any interest of the lessors.
5.18 Programming. Seller shall not make any
material changes in the broadcast hours or in the percentages of types of
programming broadcast by the Station, or make any other material change in the
Station's programming policies, except such changes as in the good faith
judgment of the Seller are required by the public interest.
5.19 Preservation of Business. To the extent
consistent with its obligations under the Time Brokerage Agreement, Seller
shall use its best efforts to preserve the business and organization of the
Station and use its best efforts to keep available to the Station its present
employees and the Station's present relationships with suppliers and others
having business relations with it, to the end that the business and operations
of the Station shall be unimpaired at the Closing Date.
5.20 Collection of Accounts Receivable. Seller
shall collect the accounts receivable of the Station only in the ordinary
course consistent with its past practices and will not take any action designed
or likely to accelerate the collection of its accounts receivable.
- 17 -
24
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC Consent.
(a) The assignment of the FCC
Licenses in connection with the purchase and sale of the Assets pursuant to
this Agreement shall be subject to the prior consent and approval of the FCC.
(b) Seller and Buyer shall
promptly prepare an appropriate application for the FCC Consent and shall file
the application with the FCC within five (5) business days of the execution of
this Agreement. The parties shall prosecute the application with all
reasonable diligence and otherwise use their best efforts to obtain a grant of
the application as expeditiously as practicable. Each party agrees to comply
with any condition imposed on it by the FCC Consent, except that no party shall
be required to comply with a condition if (1) the condition was imposed on it
as the result of a circumstance the existence of which does not constitute a
breach by the party of any of its representations, warranties, or covenants
under this Agreement, and (2) compliance with the condition would have a
material adverse effect upon it. Buyer and Seller shall oppose any requests
for reconsideration or judicial review of the FCC Consent. If the Closing
shall not have occurred for any reason within the original effective period of
the FCC Consent, and neither party shall have terminated this Agreement under
Section 9, the parties shall jointly request an extension of the effective
period of the FCC Consent. No extension of the FCC Consent shall limit the
exercise by either party of its rights under Section 9.
6.2 Control of the Station. Prior to Closing,
Buyer shall not, directly or indirectly, control, supervise, direct, or attempt
to control, supervise, or direct, the operations of the Station; such
operations, including complete control and supervision of all of the Station
programs, employees, and policies, shall be the sole responsibility of Seller
until the Closing.
6.3 RESERVED.
6.4 Risk of Loss.
(a) The risk of any loss,
damage, impairment, confiscation, or condemnation of any of the Assets from any
cause whatsoever shall be borne by Seller at all times prior to the Closing.
(b) If any damage or destruction
of the Assets or any other event occurs, other than any damage or destruction
of the Assets or any other event resulting from Buyer's conduct or actions
under the Time Brokerage Agreement, which (i) causes the Station to cease
broadcasting operations for a period of three or more days or (ii) prevents in
any material respect
- 18 -
25
signal transmission by the Station in the normal and usual manner and Seller
fails to restore or replace the Assets so that normal and usual transmission is
resumed within seven days of the damage, destruction or other event, Buyer, in
its sole discretion, may (x) terminate this Agreement forthwith without any
further obligations hereunder upon written notice to Seller or (y) proceed to
consummate the transaction contemplated by this Agreement and complete the
restoration and replacement of the Assets after the Closing Date, in which event
Seller shall deliver to Buyer all insurance proceeds received in connection with
such damage, destruction or other event.
6.5 Confidentiality. Except as necessary for
the consummation of the transaction contemplated by this Agreement, including
Buyer's obtaining of financing related hereto, and except as and to the extent
required by law, including, without limitation, disclosure requirements of
federal or state securities laws and the rules and regulations of securities
markets, each party will keep confidential any information obtained from the
other party in connection with the transactions contemplated by this Agreement.
If this Agreement is terminated, each party will return to the other party all
information obtained by the such party from the other party in connection with
the transactions contemplated by this Agreement.
6.6 Environmental Audit. Buyer may, at its
option and expense and within thirty (30) days of the date hereof, retain an
environmental consultant to be selected by Buyer to perform a Phase I
environmental survey of the properties of the Station. If the survey discloses
any material environmental hazard or material possibility of future liability
for environmental damages or clean-up costs, Buyer shall so notify Seller as
soon as practicable.
6.7 Engineering Study. Buyer may, at its option
and expense and within thirty (30) days of the date hereof, retain an
engineering firm to conduct a proof of performance study of the Station and to
prepare a report on the Station's compliance with customary engineering
practices and all applicable FCC rules, regulations, prescribed practices, and
technical standards. If the survey discloses any material deficiencies in the
operations or equipment of the Station, Buyer shall so notify Seller as soon as
practicable.
6.8 Cooperation. Buyer and Seller shall
cooperate fully with each other and their respective counsel and accountants in
connection with any actions required to be taken as part of their respective
obligations under this Agreement, and Buyer and Seller shall execute such other
documents as may be necessary and desirable to the implementation and
consummation of this Agreement, and otherwise use their best efforts to
consummate the transaction contemplated hereby and to fulfill their obligations
under this Agreement. Notwithstanding the foregoing, Buyer shall have no
obligation (i) to expend funds to obtain any of the Consents or (ii) to agree to
any adverse change in any License or Assumed Contract to obtain a Consent
required with respect thereto.
6.9 Bulk Sales Law. If applicable, the Bulk
Sales law of the State of Wisconsin shall be complied with by Seller and
Buyer. Any loss, liability, obligation, or cost suffered by Seller
- 19 -
26
or Buyer as the result of the failure of Seller or Buyer to comply with the
provisions of any bulk sales law applicable to the transfer of the Assets as
contemplated by this Agreement shall be borne by Buyer.
6.10 Title Insurance and Surveys.
(a) Title Insurance on Fee
Property. With respect to each parcel of Real Property that Seller owns,
Seller will obtain and deliver to Buyer, at Buyer's expense, at or prior to
Closing, an ALTA Owner's Policy of Title Insurance Form B-1987 (or equivalent
policy acceptable to Buyer), issued by a title insurer satisfactory to Buyer,
in an amount equal to the fair market value of the property and any
improvements thereon (as reasonably determined by Buyer), insuring title to
such parcel to be in the name of Buyer as of the Closing, subject only to liens
or encumbrances expressly permitted by this Agreement.
(b) General Requirements as to
Title Insurance Policies. Each title insurance policy obtained and delivered
to Buyer pursuant to this Agreement shall (1) insure title to the Real Property
described in the policy and all recorded easements benefitting such Real
Property, (2) contain an "extended coverage endorsement" insuring over the
general exceptions customarily contained in title policies, (3) contain an ALTA
Zoning Endorsement 3.1 (or equivalent), (4) contain an endorsement insuring
that the Real Property described in the policy is the same real estate shown in
the survey delivered with respect to such property, (5) contain an inflation
endorsement, (6) contain a "contiguity" endorsement with respect to any Real
Property consisting of more than one record parcel, and (7) not be subject to
any survey exception or any defect or encroachment disclosed by a survey
delivered with respect to the property.
(c) Surveys. With respect to
each parcel of Real Property, as to which a title insurance policy is to be
procured pursuant to this Agreement, Buyer will procure a current survey of the
parcel, prepared by a licensed surveyor and conforming to current ALTA Minimum
Detail Requirements for Land Title Surveys, disclosing the location of all
improvements, easements, party walls, sidewalks, roadways, utility lines, and
other matters customarily shown on such surveys, and showing access
affirmatively to public streets and roads.
6.11 Sales Tax Filings. Through the Closing Date,
Seller shall continue to file Wisconsin sales tax returns with respect to the
Station, if and to the extent such returns are required to be filed by
applicable law, and shall concurrently deliver copies of all such returns to
Buyer.
6.12 Access to Books and Records. Seller shall
provide Buyer reasonable access and the right to copy for a period of three
years from the Closing Date any books and records relating to the assets that
are not included in the Assets. Buyer shall provide Seller reasonable access
and
- 20 -
27
the right to copy for a period of three years from the Closing Date any
books and records relating to the Assets.
6.13 Appraisal. Buyer and Seller agree to
allocate the Purchase Price for tax and recording purposes in accordance with
an appraisal to be conducted by an appraisal firm selected and paid for by
Buyer with experience in the valuation and appraisal of television station
assets.
6.14 Buyer Conduct. Buyer shall take no action,
or fail to take any required action, that would disqualify Buyer from being the
licensee of the Station under the Communications Act of 1934, as now in effect,
the Telecommunications Act of 1996, and the rules, regulations and policies of
the FCC as now in effect. Buyer, in programming the Station pursuant to the
Time Brokerage Agreement, shall not cause or permit, by any act or failure to
act, any of the Licenses to expire or to be revoked, suspended, or modified, or
take any action that could cause the FCC or any other governmental authority to
institute proceedings for the suspension, revocation, or adverse modification
of any of the Licenses.
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER
AT CLOSING
7.1 Conditions to Obligations of Buyer. All
obligations of Buyer at the Closing are subject at Buyer's option to the
fulfillment prior to or at the Closing Date of each of the following
conditions:
(a) Representations and
Warranties. All representations and warranties of Seller contained in this
Agreement shall be true and complete in all material respects at and as of the
Closing Date as though made at and as of that time.
(b) Covenants and Conditions.
Seller shall have performed and complied in all material respects with all
covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it prior to or on the Closing Date.
(c) Consents. All Consents
designated as "material" on Schedule 3.3 shall have been obtained and delivered
to Buyer without any adverse change in the terms or conditions of any agreement
or any governmental license, permit, or other authorization.
(d) FCC Consent. The FCC
Consent shall have been granted without the imposition on Buyer of any
conditions that need not be complied with by Buyer under Section 6.1 hereof,
Seller shall have complied with any conditions imposed on it by the FCC
Consent, and the FCC Consent shall have become a Final Order.
(e) Governmental Authorizations.
Seller shall be the holder of all Licenses and there shall not have been any
modification of any License that could have a material adverse
- 21 -
28
effect on the Station or the conduct of its business and operations. No
proceeding shall be pending the effect of which could be to revoke, cancel, fail
to renew, suspend, or modify adversely any License.
(f) Deliveries. Seller shall
have made or stand willing to make all the deliveries to Buyer set forth in
Section 8.2.
(g) Adverse Change. Between the
date of this Agreement and the Closing Date, there shall have been no material
adverse change in the assets, or properties of the Station, including any
damage, destruction, or loss affecting any assets used or useful in the conduct
of the business of the Station.
(h) Time Brokerage Agreement.
The Time Brokerage Agreement shall be in full force and effect, and Seller
shall have complied, in all material respects, with its obligations thereunder.
(i) Loan Agreement. There shall
exist no Event of Default as defined in the Loan Agreement.
7.2 Conditions to Obligations of Seller. All
obligations of Seller at the Closing are subject at Seller's option to the
fulfillment prior to or at the Closing Date of each of the following
conditions:
(a) Representations and
Warranties. All representations and warranties of Buyer contained in this
Agreement shall be true and complete in all material respects at and as of the
Closing Date as though made at and as of that time.
(b) Covenants and Conditions.
Buyer shall have performed and complied in all material respects with all
covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it prior to or on the Closing Date.
(c) Deliveries. Buyer shall
have made or stand willing to make all the deliveries set forth in Section 8.3.
(d) FCC Consent. The FCC
Consent shall have been granted without the imposition on Seller of any
conditions that need not be complied with by Seller under Section 6.1 hereof
and Buyer shall have complied with any conditions imposed on it by the FCC
Consent.
(e) Time Brokerage Agreement.
The Time Brokerage Agreement shall be in full force and effect, and Buyer shall
have complied, in all material respects, with its obligations thereunder.
- 22 -
29
SECTION 8. CLOSING AND CLOSING DELIVERIES
8.1 Closing.
(a) Closing Date. The Closing
shall take place at 10:00 a.m. on a date, to be set by Buyer on at least five
days' written notice to Seller, that is (1) not earlier than the first business
day after the FCC Consent is effective, and (2) not later than ten business
days following the date upon which the FCC Consent has become a Final Order.
(b) Closing Place. The Closing
shall be held at the offices of Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or any other place that is
agreed upon by Buyer and Seller.
8.2 Deliveries by Seller. Prior to or on the
Closing Date, Seller shall deliver to Buyer the following, in form and
substance reasonably satisfactory to Buyer and its counsel:
(a) Transfer Documents. Duly
executed warranty bills of sale, deeds, motor vehicle titles, assignments, and
other transfer documents which shall be sufficient to vest good and marketable
title to the Assets in the name of Buyer, free and clear of all mortgages,
liens, restrictions, encumbrances, claims, and obligations except for liens for
current taxes not yet due and payable;
(b) Estoppel Certificates.
Estoppel certificates of the lessors of all leasehold and subleasehold
interests included in the Real Property;
(c) Consents. An executed copy
of any instrument evidencing receipt of any Consent;
(d) Officer's Certificate. A
certificate, dated as of the Closing Date, executed on behalf of Seller by its
Chairman or President, certifying (1) that the representations and warranties
of Seller contained in this Agreement are true and complete in all material
respects as of the Closing Date as though made on and as of that date; and (2)
that Seller has in all material respects performed and complied with all of its
obligations, covenants, and agreements set forth in this Agreement to be
performed and complied with on or prior to the Closing Date;
(e) Title Insurance and Surveys.
The title insurance and surveys described in Section 6.10;
- 23 -
30
(f) Licenses, Contracts,
Business Records, Etc. Copies of all Licenses, Assumed Contracts, blueprints,
schematics, working drawings, plans, projections, engineering records, and all
files and records used by Seller in connection with its operations;
(g) Accounts Receivable. A
complete and accurate list of the Station's Accounts Receivable as of a date no
more than five business days prior to the Closing Date, including, with respect
to each of the Accounts Receivable, the account number, date of issuance, name
and address of account debtor, aggregate amount, and balance due;
(h) Opinion of Counsel. An
Opinion of Seller's counsel dated as of the Closing Date, substantially in the
form of Schedule 8.2(i) hereto; and
(i) Lenders Certificates. Such
certificates and confirmations to Buyer's lenders as Buyer may reasonably
request in connection with obtaining financing for the performance of its
payment obligations hereunder, provided that Buyer shall bear any reasonable
and necessary expense incurred by Seller to obtain such certificate and
confirmation.
8.3 Deliveries by Buyer. Prior to or on the
Closing Date, Buyer shall deliver to Seller the following, in form and
substance reasonably satisfactory to Seller and its counsel:
(a) Purchase Price. The cash
portion of the Purchase Price, as adjusted pursuant to Section 2.3(a), the
executed original of the Note marked "canceled" and such other documents as may
be required to release or terminate any security interests held by Buyer in any
of the assets described in Section 2.2;
(b) Assumption Agreements.
Appropriate assumption agreements pursuant to which Buyer shall assume and
undertake to perform Seller's obligations under the Licenses and Assumed
Contracts as provided in Section 2.5;
(c) Officer's Certificate. A
certificate, dated as of the Closing Date, executed on behalf of Buyer by its
Secretary, certifying (1) that the representations and warranties of Buyer
contained in this Agreement are true and complete in all material respects as
of the Closing Date as though made on and as of that date, and (2) that Buyer
has in all material respects performed and complied with all of its
obligations, covenants, and agreements set forth in this Agreement to be
performed and complied with on or prior to the Closing Date; and
(d) Opinion of Counsel. An
opinion of Buyer's counsel dated as of the Closing Date, substantially in the
form of Schedule 8.3(d) hereto.
(e) Affiliation Agreement. The
Affiliation Agreement, duly executed by Buyer.
- 24 -
31
SECTION 9. TERMINATION
9.1 Termination by Seller. This Agreement may be
terminated by Seller, if Seller is not then in material default, upon written
notice to Buyer, upon the occurrence of any of the following:
(a) Conditions. If, on the date
that would otherwise be the Closing Date, Seller shall have notified Buyer in
writing that one or more of the conditions precedent to the obligations of
Seller set forth in this Agreement have not been satisfied or waived in writing
by Seller and such condition or conditions shall not have been satisfied by
Buyer or waived in writing by Seller within fifteen days following such notice.
(b) Judgments. If, on the date
that would otherwise be the Closing Date, Seller shall have notified Buyer that
there is in effect any judgment, decree, or order that would prevent or make
unlawful the Closing and such judgment, decree or order shall not have been
satisfied by Buyer within fifteen (15) days following such notice.
(c) Upset Date. If the Closing
shall not have occurred by May 21, 1998.
9.2 Termination by Buyer. This Agreement may be
terminated by Buyer, if Buyer is not then in material default, upon written
notice to Seller, upon the occurrence of any of the following:
(a) Conditions. If, on the date
that would otherwise be the Closing Date, Buyer shall have notified Seller in
writing that one or more of the conditions precedent to the obligations of
Buyer set forth in this Agreement have not been satisfied or waived in writing
by Buyer and such condition or conditions shall not have been satisfied by
Seller or waived in writing by Buyer within fifteen (15) days following such
notice.
(b) Judgments. If, on the date
that would otherwise be the Closing Date, Buyer shall have notified Seller that
there is in effect any judgment, decree, or order that would prevent or make
unlawful the Closing and such judgment, decree or order shall not have been
satisfied by Seller within fifteen (15) days following such notice.
(c) Upset Date. If the Closing
shall not have occurred by May 21, 1998.
(d) Interruption of Service. If
any event shall have occurred that prevented signal transmission of the Station
in the normal and usual manner for a continuous period of three days unless
such interruption of service is due to actions of Buyer under the Time
Brokerage Agreement.
- 25 -
32
9.3 Rights on Termination. Subject to Section
9.4, if this Agreement is terminated pursuant to Section 9.1 or Section 9.2 and
neither party is in material breach of any provision of this Agreement, the
parties hereto shall have no liability to each other as a result of such
termination. In addition to its rights under Section 9.4, if this Agreement is
terminated by Buyer due to Seller's material breach of its obligations
hereunder, Buyer shall have all rights and remedies available at law or equity.
If this Agreement is terminated by Seller due to Buyer's material breach of its
obligations hereunder, the payment to Seller of the expenses (including
reasonable attorneys' fees and costs) incurred by Seller in the negotiation and
preparation of this Agreement and the performance by Seller of its obligations
hereunder shall constitute full payment and the exclusive remedy for any
damages suffered by Seller by reason of Buyer's material breach.
9.4 Survival of Option. In the event that the
transactions contemplated by this Agreement are not consummated for any reason
whatsoever, the Option shall nevertheless remain exercisable by Buyer until the
expiration of the Option as provided in the Option Agreement, and Buyer may at
any time, and from time to time, prior to such expiration again exercise the
Option as set forth in the Option Agreement and, upon such exercise, Buyer and
Seller shall enter into an Asset Purchase Agreement that is, subject to the
requirement in the following sentence, substantially identical to this
Agreement and thereafter diligently proceed to perform their obligations
thereunder. In the event that the transactions contemplated by this Agreement
are not consummated because a provision of this Agreement is determined by the
FCC to violate any FCC rule or policy, Buyer and Seller shall negotiate in good
faith to revise any such provision to ensure compliance with such rule or
policy while preserving, to the extent possible, the intent of the parties as
embodied in the provision to be revised.
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES
10.1 Representations and Warranties. All
representations and warranties contained in this Agreement shall be deemed
continuing representations and warranties and shall survive the Closing for a
period of twelve months. Any investigations by or on behalf of any party
hereto shall not constitute a waiver as to enforcement of any representation,
warranty, or covenant contained in this Agreement. No notice or information
delivered by Seller shall affect Buyer's right to rely on any representation or
warranty made by Seller or relieve Seller of any obligations under this
Agreement as the result of a breach of any of its representations and
warranties.
10.2 Indemnification by Seller. Notwithstanding
the Closing, and regardless of any investigation made at any time by or on
behalf of Buyer or any information Buyer may have, Seller hereby agrees to
indemnify and hold Buyer harmless against and with respect to, and shall
reimburse Buyer for:
- 26 -
33
(a) Any and all losses,
liabilities, or damages resulting from any untrue representation, breach of
warranty, or nonfulfillment of any covenant by Seller contained in this
Agreement or in any certificate, document, or instrument delivered to Buyer
under this Agreement.
(b) Any and all obligations of
Seller not assumed by Buyer pursuant to this Agreement, including any
liabilities arising at any time under any Contract not included in the Assumed
Contracts.
(c) Any and all losses,
liabilities, or damages resulting from the operation or ownership of the
Station prior to the Closing, including any liabilities arising under the
Licenses or the Assumed Contracts which relate to events occurring prior the
Closing Date.
(d) Any and all actions, suits,
proceedings, claims, demands, assessments, judgments, costs, and expenses,
including reasonable legal fees and expenses, incident to any of the foregoing
or incurred in investigating or attempting to avoid the same or to oppose the
imposition thereof, or in enforcing this indemnity.
10.3 Indemnification by Buyer. Notwithstanding
the Closing, and regardless of any investigation made at any time by or on
behalf of Seller or any information Seller may have, Buyer hereby agrees,
subject to the limitation in the last sentence of Section 9.3, to indemnify and
hold Seller harmless against and with respect to, and shall reimburse Seller
for:
(a) Any and all losses,
liabilities, or damages resulting from any untrue representation, breach of
warranty, or nonfulfillment of any covenant by Buyer contained in this
Agreement or in any certificate, document, or instrument delivered to Seller
under this Agreement.
(b) Any and all obligations of
Seller assumed by Buyer pursuant to this Agreement.
(c) Any and all losses,
liabilities or damages resulting from the operation or ownership of the Station
on and after the Closing.
(d) Any and all losses,
liabilities or damages resulting from any action taken by Buyer or its
employees and agents with respect to the Station, or any failure by Buyer or
its employees and agents to take any action with respect to the Station, in
connection with the performance by Buyer of its obligations under the Time
Brokerage Agreement, including, without limitation, any and all losses,
liabilities or damages resulting from (i) violations by Buyer or its employees
and agents of the Communications Act of 1934, as amended, or any rule,
regulation or policy of the FCC, (ii) slander, defamation or other claims
relating to programming
- 27 -
34
provided by Buyer for broadcast on the Station, and (iii) Buyer's broadcast and
sale of advertising time on the Station.
(e) Any and all actions, suits,
proceedings, claims, demands, assessments, judgments, costs and expenses,
including reasonable legal fees and expenses, incident to any of the foregoing
or incurred in investigating or attempting to avoid the same or to oppose the
imposition thereof, or in enforcing this indemnity.
10.4 Procedure for Indemnification. The procedure
for indemnification shall be as follows:
(a) The party claiming
indemnification (the "Claimant") shall promptly give notice to the party from
which indemnification is claimed (the "Indemnifying Party") of any claim,
whether between the parties or brought by a third party, specifying in
reasonable detail the factual basis for the claim. If the claim relates to an
action, suit, or proceeding filed by a third party against Claimant, such
notice shall be given by Claimant within five days after written notice of such
action, suit, or proceeding was given to Claimant.
(b) With respect to claims
solely between the parties, following receipt of notice from the Claimant of a
claim, the Indemnifying Party shall have thirty days to make such investigation
of the claim as the Indemnifying Party deems necessary or desirable. For the
purposes of such investigation, the Claimant agrees to make available to the
Indemnifying Party and/or its authorized representatives the information relied
upon by the Claimant to substantiate the claim. If the Claimant and the
Indemnifying Party agree at or prior to the expiration of the thirty-day period
(or any mutually agreed upon extension thereof) to the validity and amount of
such claim, the Indemnifying Party shall immediately pay to the Claimant the
full amount of the claim. If the Claimant and the Indemnifying Party do not
agree within the thirty-day period (or any mutually agreed upon extension
thereof), the Claimant may seek appropriate remedy at law or equity or under
the arbitration provisions of this Agreement, as applicable.
(c) With respect to any claim by
a third party as to which the Claimant is entitled to indemnification under
this Agreement, the Indemnifying Party shall have the right at its own expense,
to participate in or assume control of the defense of such claim, and the
Claimant shall cooperate fully with the Indemnifying Party, subject to
reimbursement for actual out-of-pocket expenses incurred by the Claimant as the
result of a request by the Indemnifying Party. If the Indemnifying Party
elects to assume control of the defense of any third-party claim, the
Claimant shall have the right to participate in the defense of such claim at
its own expense. If the Indemnifying Party does not elect to assume control or
otherwise participate in the defense of any third party claim, it shall be
bound by the results obtained by the Claimant with respect to such claim.
- 28 -
35
(d) If a claim, whether between
the parties or by a third party, requires immediate action, the parties will
make every effort to reach a decision with respect thereto as expeditiously as
possible.
(e) The indemnification rights
provided in Sections 10.2 and 10.3 shall extend to the shareholders, directors,
officers, employees, and representatives of any Claimant although for the
purpose of the procedures set forth in this Section 10.4, any indemnification
claims by such parties shall be made by and through the Claimant.
(f) Notwithstanding any
provision in this Agreement to the contrary, Seller shall not be required to
indemnify Buyer for any losses, liabilities or damages relating to or arising
from (i) a chose in action of Seller relating to the Station unless Buyer
promptly notifies Seller of such chose in action, and thereupon Seller shall
have sole responsibility for the prosecution of such chose in action or (ii)
any environmental or engineering defect or other circumstance that is described
in the environmental survey or engineering study referred to in Sections 6.6
and 6.7 hereof, respectively, if and to the extent such defect or circumstance
is not a violation of Seller's representations, warranties or covenants
hereunder.
10.5 Specific Performance. The parties recognize
that if Seller breaches this Agreement and refuses to perform under the
provisions of this Agreement, monetary damages alone would not be adequate to
compensate Buyer for its injury. Buyer shall therefore be entitled, in
addition to any other remedies that may be available, including money damages,
to obtain specific performance of the terms of this Agreement. If any action
is brought by Buyer to enforce this Agreement, Seller shall waive the defense
that there is an adequate remedy at law.
10.6 Attorneys' Fees. In the event of a default
by either party which results in a lawsuit or other proceeding for any remedy
available under this Agreement, the prevailing party shall be entitled to
reimbursement from the other party of its reasonable legal fees and expenses.
SECTION 11. MISCELLANEOUS
11.1 Fees and Expenses. Any federal, state, or
local sales or transfer tax arising in connection with the conveyance of the
Assets by Seller to Buyer pursuant to this Agreement shall be paid by the party
upon whom such tax is imposed by law. Except as otherwise provided in this
Agreement, each party shall pay its own expenses incurred in connection with
the authorization, preparation, execution, and performance of this Agreement,
including all fees and expenses of counsel, accountants, agents, and
representatives, except that Buyer and Seller shall each pay one-half of all
filing fees required by the FCC, and each party shall be responsible for all
fees or commissions payable to any finder, broker, advisor, or similar person
retained by or on behalf of such party.
- 29 -
36
11.2 Arbitration. Except as otherwise provided to
the contrary below, any dispute arising out of or related to this Agreement
that Seller and Buyer are unable to resolve by themselves shall be settled by
arbitration by a panel of three (3) neutral arbitrators who shall be selected
in accordance with the procedures set forth in the commercial arbitration rules
of the American Arbitration Association. The persons selected as arbitrators
shall have prior experience in the broadcasting industry but need not be
professional arbitrators, and persons such as lawyers, accountants, brokers and
bankers shall be acceptable. Before undertaking to resolve the dispute, each
arbitrator shall be duly sworn faithfully and fairly to hear and examine the
matters in controversy and to make a just award according to the best of his or
her understanding. The arbitration hearing shall be conducted in accordance
with the commercial arbitration rules of the American Arbitration Association.
The written decision of a majority of the arbitrators shall be final and
binding on Seller and Buyer. The costs and expenses of the arbitration
proceeding shall be assessed between Seller and Buyer in a manner to be decided
by a majority of the arbitrators, and the assessment shall be set forth in the
decision and award of the arbitrators. Judgment on the award, if it is not
paid within thirty days, may be entered in any court having jurisdiction over
the matter. No action at law or suit in equity based upon any claim arising
out of or related to this Agreement shall be instituted in any court by Seller
or Buyer against the other except (i) an action to compel arbitration pursuant
to this Section, (ii) an action to enforce the award of the arbitration panel
rendered in accordance with this Section, or (iii) a suit for specific
performance pursuant to Section 10.5.
11.3 Notices. All notices, demands, and requests
required or permitted to be given under the provisions of this Agreement shall
be (a) in writing, (b) delivered by personal delivery, or sent by commercial
delivery service or registered or certified mail, return receipt requested, (c)
deemed to have been given on the date of personal delivery or the date set
forth in the records of the delivery service or on the return receipt, and (d)
addressed as follows:
If to Seller: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇
The Christian Network, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Tannenwald
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to Buyer: ▇▇▇▇▇▇ Communications Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
- 30 -
37
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
or to any other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
11.3.
11.4 Benefit and Binding Effect. Neither party
hereto may assign this Agreement without the prior written consent of the other
party hereto; provided, however, that Buyer may assign its rights and
obligations under this Agreement, in whole or in part, to one or more
subsidiaries or commonly controlled affiliates of Buyer, prior to the filing of
the FCC application, without seeking or obtaining Seller's prior approval,
provided that such assignment shall not constitute a release of Buyer's
obligations hereunder, and Buyer may collaterally assign its rights and
interests hereunder to its lenders without seeking or obtaining Seller's prior
approval. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
11.5 Further Assurances. The parties shall take
any actions and execute any other documents that may be necessary or desirable
to the implementation and consummation of this Agreement, including, in the
case of Seller, any additional bills of sale, deeds, or other transfer
documents that, in the reasonable opinion of Buyer, may be necessary to ensure,
complete, and evidence the full and effective transfer of the Assets to Buyer
pursuant to this Agreement.
11.6 Governing Law. THIS AGREEMENT SHALL BE
GOVERNED, CONSTRUED, AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
FLORIDA (WITHOUT REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF).
11.7 Headings. The headings in this Agreement are
included for ease of reference only and shall not control or affect the meaning
or construction of the provisions of this Agreement.
11.8 Gender and Number. Words used in this
Agreement, regardless of the gender and number specifically used, shall be
deemed and construed to include any other gender, masculine, feminine, or
neuter, and any other number, singular or plural, as the context requires.
11.9 Entire Agreement. This Agreement, the
schedules, hereto, and all documents, certificates, and other documents to be
delivered by the parties pursuant hereto, collectively represent the entire
understanding and agreement between Buyer and Seller with respect to the
subject matter hereof. This Agreement supersedes all prior negotiations
between the parties and cannot be amended, supplemented, or changed except by
an agreement in writing that makes
- 31 -
38
specific reference to this Agreement and which is signed by the party against
which enforcement of any such amendment, supplement, or modification is sought.
11.10 Waiver of Compliance; Consents. Except as
otherwise provided in this Agreement, any failure of any of the parties to
comply with any obligation, representation, warranty, covenant, agreement, or
condition herein may be waived by the party entitled to the benefits thereof
only by a written instrument signed by the party granting such waiver, but such
waiver or failure to insist upon strict compliance with such obligation,
representation, warranty, covenant, agreement, or condition shall not operate
as a waiver of, or estoppel with respect to, any subsequent or other failure.
Whenever this Agreement requires or permits consent by or on behalf of any
party hereto, such consent shall be given in writing in a manner consistent
with the requirements for a waiver of compliance as set forth in this Section
11.10.
11.11 Press Release. Prior to the Closing, neither
party shall publish any press release, make any other public announcement or
otherwise communicate with any news media concerning this Agreement or the
transactions contemplated hereby without the prior written consent of the other
party; provided, however, that nothing contained herein shall prevent either
party from promptly making all filings with governmental authorities as may, in
its judgement be required or advisable in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
11.12 Consent to Jurisdiction and Service of
Process. All judicial proceedings brought against Buyer or Seller arising out
of or relating to this Agreement may be brought in any state or federal court
of competent jurisdiction in the State of Florida and, by execution and
delivery of this Agreement, Buyer and Seller each accepts for itself and in
connection with its properties, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens and irrevocably agrees to be bound by any judgment
rendered thereby in connection with this Agreement. Seller designates and
appoints ▇▇▇▇▇ ▇. ▇▇▇▇, and Buyer designates and appoints ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
and such other persons as may hereafter be selected by Buyer or Seller, as its
respective agent to receive on its behalf service of all process in any such
proceedings in any such court, such service being hereby acknowledged by Buyer
and Seller to be effective and binding service in every respect. A copy of any
such process so served shall be mailed by registered mail to Buyer or Seller at
its address provided in Section 11.3, except that, unless otherwise provided by
applicable law, any failure to mail such copy shall not affect the validity of
service of process. If any agent appointed by Buyer or Seller refuses to accept
service, Buyer and Seller hereby agree that service upon it by mail shall
constitute sufficient notice. Nothing herein shall affect the right to serve
process in any other manner permitted by law or shall limit the right of either
party to bring proceedings against the other in the courts of any other
jurisdiction.
11.13 Counterparts. This Agreement may be signed
in counterparts with the same effect as if the signature on each counterpart
were upon the same instrument.
- 32 -
39
IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
▇▇▇▇▇▇ COMMUNICATIONS OF
MILWAUKEE-55, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
CHANNEL 55 OF MILWAUKEE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Chairman
- 33 -