1
EXHIBIT 10.182
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STOCK PURCHASE AGREEMENT
BY AND AMONG
CHANNEL 29 OF CHARLESTON, INC.,
▇▇▇▇▇▇ COMMUNICATIONS OF CHARLESTON-29, INC.
AND
MOUNTAINEER BROADCASTING CORP.
AND
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
* * *
September 2, 1997
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TABLE OF CONTENTS
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ARTICLE 1. CERTAIN DEFINITIONS.............................................................................2
Section 1.1 Terms Defined in this Section..........................................................2
Section 1.2 Clarifications.........................................................................4
ARTICLE 2. THE INITIAL CLOSING.............................................................................5
Section 2.1 The Initial Closing....................................................................5
Section 2.2 Sale of Initial Shares.................................................................5
Section 2.3 Purchase Price.........................................................................5
ARTICLE 3. ACTIONS TO BE TAKEN PRIOR TO THE INITIAL CLOSING................................................5
Section 3.1 Organization of the Company............................................................5
Section 3.2 Tower Site.............................................................................5
Section 3.3 Pro Forma FCC Consent..................................................................5
Section 3.4 Assignment of Construction Permit......................................................6
Section 3.5 Conduct Pending the Initial Closing....................................................6
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF BUYER REGARDING
THE INITIAL CLOSING.............................................................................6
Section 4.1 Organization and Standing..............................................................6
Section 4.2 Power and Authority....................................................................6
Section 4.3 Conflicts..............................................................................7
Section 4.4 Investment.............................................................................7
Section 4.5 Disclosure.............................................................................7
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF SELLER AND THE
COMPANY REGARDING THE INITIAL CLOSING...........................................................7
Section 5.1 Organization and Standing..............................................................7
Section 5.2 Power and Authority....................................................................8
Section 5.3 Conflicts..............................................................................8
Section 5.4 Exchange Act; Investment Company Act...................................................8
Section 5.5 Capitalization.........................................................................8
Section 5.6 Assets and Liabilities of the Company. ...............................................9
Section 5.7 Broker.................................................................................9
Section 5.8 Construction Permit....................................................................9
Section 5.9 Tower Site.............................................................................9
Section 5.10 Consents..............................................................................10
Section 5.11 Claims and Legal Actions..............................................................10
Section 5.12 Disclosure............................................................................10
ARTICLE 6. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER AT
THE INITIAL CLOSING............................................................................10
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Section 6.1 Representations and Warranties........................................................10
Section 6.2 Covenants and Conditions..............................................................10
Section 6.3 Approvals for Tower Site..............................................................10
Section 6.4 Contribution..........................................................................10
Section 6.5 Tower Site............................................................................11
Section 6.6 Deliveries. .........................................................................11
Section 6.7 Construction Permit; Adverse Proceedings..............................................12
Section 6.8 No Liabilities........................................................................12
Section 6.9 TBA...................................................................................12
Section 7.1 Representations and Warranties........................................................12
Section 7.2 Covenants and Conditions..............................................................13
Section 7.3 Deliveries............................................................................13
Section 7.4 Adverse Proceedings...................................................................13
Section 7.5 TBA...................................................................................14
ARTICLE 8. CONSTRUCTION AND OPERATION OF THE STATION......................................................14
Section 8.1 General...............................................................................14
Section 8.2 FCC Consent...........................................................................14
Section 8.3 Employee Benefit Plans................................................................15
Section 8.4 Labor Relations.......................................................................15
Section 8.5 Licenses..............................................................................15
Section 8.6 Compliance with Laws..................................................................15
Section 8.7 Notification..........................................................................15
Section 8.8 Preservation of Business..............................................................15
Section 8.9 Performance of Agreements.............................................................15
Section 8.10 Cable Carriage........................................................................16
ARTICLE 9. THE OPTION AND THE SECOND CLOSING..............................................................16
Section 9.1 Option................................................................................16
Section 9.2 The Second Closing....................................................................16
Section 9.3 Sale of Option Shares.................................................................17
Section 9.4 Purchase Price for Option Shares......................................................17
ARTICLE 10. REPRESENTATIONS AND WARRANTIES OF BUYER REGARDING
THE SECOND CLOSING...........................................................................18
ARTICLE 11. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
COMPANY AND SELLER REGARDING THE SECOND CLOSING
............................................................................................18
Section 11.1 Contracts.............................................................................18
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Section 11.2 Copyrights, Trademarks and Similar Rights.............................................18
Section 11.3 Governmental Authorizations...........................................................18
Section 11.4 Title to and Condition of Real Property...............................................19
Section 11.5 Title to and Condition of Tangible Personal Property..................................19
Section 11.6 Compliance With Laws..................................................................19
Section 11.7 Reports...............................................................................19
Section 11.8 Public Inspection File................................................................19
Section 11.9 Taxes.................................................................................19
Section 11.10 Dividends and Redemptions.............................................................20
Section 11.11 Notices; Condemnation.................................................................20
Section 11.12 Liabilities of the Company............................................................20
Section 11.13 Disclosure............................................................................20
ARTICLE 12. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER AT
THE SECOND CLOSING...........................................................................21
Section 12.1 Representations and Warranties........................................................21
Section 12.2 Covenants and Conditions..............................................................21
Section 12.3 FCC Consent...........................................................................21
Section 12.4 Consents..............................................................................21
Section 12.5 Deliveries. .........................................................................21
Section 12.6 Adverse Proceedings...................................................................22
Section 12.7 TBA. ................................................................................22
Section 12.8 Adverse Change........................................................................22
Section 12.9 Tower Site............................................................................23
ARTICLE 13. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER
AND THE COMPANY AT THE SECOND CLOSING........................................................23
Section 13.1 Representations and Warranties........................................................23
Section 13.2 Covenants and Conditions..............................................................23
Section 13.3 FCC Consent...........................................................................23
Section 13.4 Consents..............................................................................23
Section 13.5 Deliveries. .........................................................................23
Section 13.6 TBA...................................................................................24
Section 13.7 Adverse Proceedings...................................................................24
ARTICLE 14. JOINT COVENANTS..............................................................................24
Section 14.1 Confidentiality.......................................................................24
Section 14.2 Cooperation...........................................................................24
Section 14.3 Governmental Consents.................................................................25
Section 14.4 Station Operation and Contracts.......................................................25
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ARTICLE 15. TRANSFER TAXES; FEES AND EXPENSES............................................................25
Section 15.1 Transfer Taxes........................................................................25
Section 15.2 Filing Fees...........................................................................25
Section 15.3 Expenses..............................................................................25
ARTICLE 16. RISK OF LOSS.................................................................................25
Section 16.1 Risk of Loss..........................................................................25
Section 16.2 Postponement of the Second Closing Date...............................................26
Section 16.3 Option to Terminate...................................................................26
ARTICLE 17. TERMINATION RIGHTS...........................................................................26
Section 17.1 Termination by the Parties............................................................26
Section 17.2 Termination by Buyer..................................................................27
ARTICLE 18. SPECIFIC PERFORMANCE.........................................................................27
ARTICLE 19. INDEMNIFICATION..............................................................................28
Section 19.1 Seller's, MBC's and the Company's Indemnification.....................................28
Section 19.2 Buyer's Indemnification...............................................................28
Section 19.3 Notice of Claim.......................................................................28
Section 19.4 Assumption and Defense of Third-Party Action..........................................29
Section 19.5 Limitation Period.....................................................................29
ARTICLE 20. OTHER PROVISIONS.............................................................................29
Section 20.1 Survival of Representations, Warranties and Covenants.................................29
Section 20.2 Press Releases........................................................................29
Section 20.3 Further Assurances....................................................................30
Section 20.4 Benefit and Assignment................................................................30
Section 20.5 Entire Agreement......................................................................30
Section 20.6 Headings..............................................................................30
Section 20.7 Governing Law.........................................................................30
Section 20.8 Notices...............................................................................31
Section 20.9 Counterparts..........................................................................31
Section 20.10 Guaranty..............................................................................32
EXHIBITS AND SCHEDULES TO
STOCK PURCHASE AGREEMENT
EXHIBITS
EXHIBIT A -- Construction Agreement
EXHIBIT B -- Shareholders Agreement
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SCHEDULES
Schedule 5.6 -- Assets
Schedule 5.9 -- Transmitter Site
Schedule 6.7(f) -- Opinions of Counsel to Seller and the Company
(Initial Closing)
Schedule 7.3(d) -- Opinion of Counsel to Buyer (Initial Closing)
Schedule 12.5(h) -- Opinions of Counsel to Seller and the Company
(Second Closing)
Schedule 13.5(d) -- Opinion of Counsel to Buyer (Second Closing)
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is dated as of the 2nd
day of September, 1997, by and among MOUNTAINEER BROADCASTING CORP., a Delaware
corporation ("MBC"); ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Seller"); CHANNEL 29 OF CHARLESTON,
INC., a Delaware corporation (the "Company"); and ▇▇▇▇▇▇ COMMUNICATIONS OF
CHARLESTON-29, INC., a Florida corporation ("Buyer").
W I T N E S S E T H
WHEREAS, MBC is the holder of a construction permit, File No. BMPCT-
891031KI, as extended,` ("Construction Permit"), issued by the Federal
Communications Commission ("FCC") for new television station WKRP-TV, Channel
29, Charleston, West Virginia (the "Station");
WHEREAS, Seller owns all the stock of MBC;
WHEREAS, subject to obtaining the FCC's consent to the pro forma
assignment of the Construction Permit from MBC to the Company, Seller will cause
MBC to convey the Construction Permit to the Company and in exchange thereof
Seller will be issued all of the outstanding common stock of the Company;
WHEREAS, Buyer desires to purchase from Seller, following the
acquisition of the Construction Permit by the Company, forty-nine percent (49%)
of the outstanding common stock of the Company, subject to the terms and
conditions set forth herein;
WHEREAS, Seller desires to grant to Buyer an option to purchase the
remaining fifty-one percent (51%) of the outstanding common stock of the
Company, subject to the terms and conditions set forth herein; and
WHEREAS, in connection with the foregoing transactions, (a) Buyer,
Seller and the Company desire to enter into a Shareholders Agreement setting
forth, among other things, certain restrictions relating to the issuance and
sale of the capital stock of the Company and (b) Buyer and the Company desire to
enter into a Construction Agreement, pursuant to which Buyer agrees to provide
certain services in connection with the construction of the Station.
NOW, THEREFORE, in consideration of these premises and the mutual
covenants, conditions and promises contained herein, and for valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, agree as follows:
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ARTICLE 1. CERTAIN DEFINITIONS
Section 1.1 Terms Defined in this Section. The following terms, as used
in this Agreement, have the meanings set forth in this Section:
"Closings" means the collective reference to the Initial Closing and
the Second Closing.
"Common Stock" means all of the issued and outstanding shares of
capital stock of the Company, consisting of 1,000 shares of voting common stock,
par value $.01 per share.
"Communications Act" means the Communications Act of 1934, as amended,
the Telecommunications Act of 1996 and the rules and regulations promulgated
thereunder.
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Construction
Permit to the Company and to transfer the Common Stock to Buyer or otherwise to
consummate the transactions contemplated by this Agreement.
"Construction Agreement" means the Construction Agreement to be entered
into by Buyer and the Company, substantially in the form of Exhibit A.
"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 the Company is a party or that are binding upon the Company,
and (a) that are in effect on the date of this Agreement or (b) that are entered
into by the Company between the date of this Agreement and the Second Closing
Date.
"FCC Consent" means action by the FCC granting its consent to the
transfer of control of the Company as contemplated by this Agreement.
"FCC Licenses" means those licenses, permits, and authorizations issued
by the FCC in connection with the business and 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.
"High Mountain" means High Mountain Broadcast Associates, L.L.C., a
Delaware limited liability company.
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"Initial Closing" means the consummation of the purchase and sale of
the Initial Shares pursuant to this Agreement in accordance with the provisions
of Article 2.
"Initial Closing Date" means the date on which the Initial Closing
occurs, as determined pursuant to Section 2.1.
"Initial Shares" means 490 shares of the voting common stock, par value
$.01 per share, of the Company representing 49% of the issued and outstanding
shares of the capital stock of the Company.
"Initial Shares Purchase Price" has the meaning set forth in Section
2.3.
"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 the
Company or under which the Company is licensed or franchised and that 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 Second Closing
Date.
"Licenses" means all licenses, permits, construction permits, and other
authorizations issued as of the date hereof by the FCC, the Federal Aviation
Administration, or any other federal, state, or local governmental authorities
for the construction or operation of the Station, together with any additions
thereto between the date of this Agreement and the Second Closing Date.
"Option Price" shall have the meaning set forth in Section 9.4.
"Option Shares" means 510 shares of the voting common stock, par value
$.01 per share, of the Company representing 51% of the issued and outstanding
shares of the capital stock of the Company.
"Pro Forma FCC Consent" means the action by the FCC granting its
consent to the pro forma assignment of the Construction Permit from MBC to the
Company.
"Real Property" means all 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, owned or held by the Company that 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 Second Closing Date.
"Second Closing" means the consummation of the purchase and sale of the
Option Shares pursuant to this Agreement in accordance with the provision of
Article 9.
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"Second Closing Date" means the date on which the Second Closing
occurs, as determined pursuant to Section 9.2.
"Shareholders Agreement" means the Shareholders Agreement to be entered
into upon the Initial Closing among Buyer, Seller and the Company, substantially
in the form of Exhibit B.
"Tangible Personal Property" means all machinery, equipment, tools,
vehicles, furniture, leasehold improvements, office equipment, plant, inventory,
spare parts, and other tangible personal property owned or held by the Company
that 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 Second Closing Date.
"Taxes" (and, with correlative meaning, "Taxes" and "Taxable") means
all federal, state, local or foreign income, gross receipts, windfall profits,
severance, property, production, sales, use, license, excise, franchise,
capital, transfer, employment, withholding and other taxes and assessments,
together with any interest, additions or penalties with respect thereto and any
interest in respect of such additions or penalties, and "Tax" means any one of
such Taxes.
"Tax Returns" means all federal, state, local and foreign income,
franchise, sales, use, occupation, property, excise, alternative or add-on
minimum, social security, employees' withholding, unemployment, disability,
transfer, capital stock and other tax returns and tax reports, and "Tax Return"
means any one of such Tax Returns.
"TBA" means the Time Brokerage Agreement dated July 9, 1996 between MBC
and High Mountain.
"Transaction Documents" means the Construction Agreement and
Shareholders Agreement.
Section 1.2 Clarifications. Words used herein, regardless of the gender
and number specifically used, shall be deemed and construed to include any other
gender and any other number as the context requires. Use of the word "including"
herein shall be deemed and construed to mean "including but not limited to."
Except as specifically otherwise provided in this Agreement in a particular
instance, a reference to a Section, Exhibit or Schedule is a reference to a
Section of this Agreement or a Schedule or an Exhibit hereto, and the terms
"hereof," "herein" and other like terms refer to this Agreement as a whole,
including the Schedules and Exhibits hereto, and not solely to any particular
part hereof.
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ARTICLE 2. THE INITIAL CLOSING
Section 2.1 The Initial Closing. The Initial Closing shall take place
at 10:00 a.m., Washington, D.C. time, on a date to be set by Buyer on no less
than five (5) days' written notice to Seller, which date shall not be sooner
than the first business day after the date on which the Pro Forma FCC Consent
has been granted by the FCC and shall not be later than the tenth business day
after the date on which the Pro Forma FCC Consent has become a Final Order,
subject to the satisfaction of all other conditions precedent to the holding of
the Initial Closing. The Initial Closing shall take place at the offices of Dow,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇, or such other place as the parties shall mutually agree. If Buyer fails
to specify the date for Initial Closing prior to the fifth business day after
the date upon which the Pro Forma FCC Consent has become a Final Order, the
Initial Closing shall take place on the tenth business day after the date upon
which the Pro Forma FCC Consent has become a Final Order.
Section 2.2 Sale of Initial Shares. Subject to the terms and conditions
set forth in this Agreement, Seller hereby agrees to sell, transfer and deliver
to Buyer on the Initial Closing Date, and Buyer agrees to purchase, the Initial
Shares, free and clear of any claims, liabilities, security interests,
mortgages, liens, pledges, conditions, charges or encumbrances of any nature
whatsoever.
Section 2.3 Purchase Price. The purchase price for the Initial Shares
(the "Initial Shares Purchase Price") shall be $98,000. The Purchase Price shall
be paid at the Initial Closing by Buyer to Seller, in accordance with written
instructions provided by Seller to Buyer no less than two (2) business days
prior to the Initial Closing Date, by wire transfer of immediately available
federal funds.
ARTICLE 3. ACTIONS TO BE TAKEN PRIOR TO THE INITIAL CLOSING
Section 3.1 Organization of the Company. Seller shall cause the
incorporation of the Company and shall cause it to be duly qualified to conduct
business in the State of West Virginia.
Section 3.2 Tower Site. Prior to the Initial Closing, Seller shall
prepare and file with the FCC and any other federal, state or local government
authorities such applications, notices or other documents as may be necessary or
advisable to permit the construction and operation of the Station's transmission
facilities at the Tower Site (as described below).
Section 3.3 Pro Forma FCC Consent. Seller, MBC and the Company shall
prepare and, within five (5) business days after the date of this Agreement,
file with the FCC an appropriate application for the Pro Forma FCC Consent.
Seller, MBC and the Company shall thereafter prosecute the application for the
Pro Forma FCC Consent with all diligence and otherwise use their best efforts to
obtain a grant of the application for the Pro Forma FCC Consent as expeditiously
as possible.
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Section 3.4 Assignment of Construction Permit. Upon the grant of the
Pro Forma FCC Consent, Seller shall cause MBC to contribute the Construction
Permit to the Company in exchange for all of the shares of Common Stock pursuant
to conveyancing documents in form and substance acceptable to Buyer.
Section 3.5 Conduct Pending the Initial Closing. Between the date
hereof and the Initial Closing Date, unless Buyer shall otherwise consent in
writing, Seller, MBC and the Company covenant and agree:
(a) to perform all acts necessary to carry out the
transactions contemplated by this Agreement and not to: (i) sell, transfer or
encumber the Common Stock or the Construction Permit other than as contemplated
herein; (ii) perform or suffer any acts within their control that are
inconsistent with their representations, warranties, covenants and agreements
set forth herein and (iii) amend the Certificate of Incorporation or Bylaws of
the Company; and
(b) to notify Buyer promptly of (i) any adverse development
with respect to the Pro Forma FCC Consent or (ii) the commencement or threat of
any claim; suit; action; arbitration; legal, administrative or other proceeding;
governmental investigation; or tax audit against Seller, MBC or the Company or
affecting the Station; and
(c) to cooperate fully with Buyer in taking any and all
actions necessary or desirable for the consummation of the transactions
contemplated by this Agreement; and
(d) that the Company shall not create, incur, assume or
guarantee any indebtedness, obligation or liability.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF BUYER REGARDING THE INITIAL CLOSING
As an inducement to Seller, MBC and the Company to enter into this
Agreement and consummate the transactions contemplated to occur upon the Initial
Closing, Buyer represents and warrants to Seller, MBC and the Company as
follows:
Section 4.1 Organization and Standing. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Florida and shall be, on or before the Initial Closing Date, duly qualified
to conduct business as a foreign corporation in the State of West Virginia.
Section 4.2 Power and Authority. Buyer has full corporate power and
authority to enter into this Agreement and the other documents contemplated
hereby, and to perform and comply with the terms, covenants and conditions to be
performed or complied with by Buyer hereunder and thereunder. This Agreement
constitutes, and any other instrument
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contemplated hereby when executed and delivered by Buyer at the Initial Closing,
will constitute, the legal, valid and binding obligations of Buyer, enforceable
in accordance with their terms, except as such enforceability may be affected by
bankruptcy, insolvency or similar laws and by court-applied equitable
principles.
Section 4.3 Conflicts. The execution and delivery of this Agreement and
the instruments or documents to be delivered by Buyer pursuant to this Agreement
at the Initial Closing, the consummation of the transactions contemplated by
this Agreement at the Initial Closing, and compliance with the terms, conditions
and provisions of this Agreement at the Initial Closing by Buyer, with or
without the giving of notice or the passage of time, or both, do not and will
not: (i) contravene any provision of Buyer's Articles of Incorporation or
Bylaws; (ii) conflict with or result in a breach of or constitute a default
under any of the terms, conditions or provisions of any indenture, mortgage,
loan or credit agreement or any other agreement or instrument to which Buyer is
a party or by which it or its assets may be bound or affected, or any decree,
judgment or order of any court or governmental department, commission, board,
agency or instrumentality, domestic or foreign, or any applicable law,
ordinance, rule or regulation, including but not limited to the Communications
Act; or (iii) result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of Buyer's assets or give to
others any interests or rights therein.
Section 4.4 Investment. Buyer will acquire the Initial Shares for its
own account for investment and not with a present view to distribute or resell
the same.
Section 4.5 Disclosure. No representation or warranty by Buyer in this
Agreement, and no schedule, document, statement, certificate furnished or to be
furnished by Buyer to Seller or the Company pursuant hereto, contains or will
contain any untrue statement of a material fact, or omits or will omit to state
a material fact necessary to make the statements or facts contained herein or
therein not misleading
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANY REGARDING
THE INITIAL CLOSING
As an inducement to Buyer to enter into this Agreement and consummate
the transactions contemplated to occur upon the Initial Closing, Seller, MBC and
the Company jointly and severally represent and warrant to Buyer as follows:
Section 5.1 Organization and Standing. The Company is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware and shall be, on or before the Initial Closing, duly qualified
to conduct business in the State of West Virginia. MBC is a corporation duly
organized validly existing and in good standing under the laws of the State of
Delaware. Seller is an individual and a resident of Illinois. Seller and MBC
have delivered to Buyer true and complete copies of the Certificate of
Incorporation and By-laws of the Company and of MBC.
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Section 5.2 Power and Authority. Each of Seller, MBC and the Company
has full power and authority to enter into this Agreement and the other
documents contemplated hereby, and to perform and comply with the terms,
covenants and conditions to be performed or complied with by Seller, MBC or the
Company hereunder or thereunder. This Agreement constitutes, and any other
instrument contemplated hereby, when executed and delivered by Seller, MBC or
the Company at the Initial Closing, will constitute, the legal, valid and
binding obligations of Seller, MBC and the Company, enforceable in accordance
with their terms, except as such enforceability may be affected by bankruptcy,
insolvency or similar laws and by court-applied equitable principles.
Section 5.3 Conflicts. The execution and delivery of this Agreement and
the instruments or documents to be delivered by Seller, MBC or the Company
pursuant to this Agreement at the Initial Closing, the consummation of the
transactions contemplated by this Agreement at the Initial Closing, and
compliance with the terms, conditions and provisions of this Agreement at the
Initial Closing by Seller, MBC and the Company, with or without the giving of
notice or the passage of time, or both, do not and will not: (i) contravene any
provision of the Certificate of Incorporation or By-laws of the Company or of
MBC, (ii) conflict with or result in a breach of or constitute a default under
any of the terms, conditions or provisions of any indenture, mortgage, loan or
credit agreement or any other agreement or instrument to which Seller or the
Company is a party or by which Seller, MBC or the Company or any of their
respective assets may be bound or affected, or any decree, judgment or order of
any court or governmental department, commission, board, agency or
instrumentality, domestic or foreign, or any applicable law, ordinance, rule or
regulation, including but not limited to the Communications Act; or (iii) result
in the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the assets of Seller, MBC or the Company or the Common
Stock or give to others any interests or rights therein.
Section 5.4 Exchange Act; Investment Company Act. No securities of the
Company are required to be registered under Section 12 of the Securities and
Exchange Act of 1934, as amended. Neither Seller, MBC nor the Company is an
"investment company" as such term is defined in the Investment Company Act of
1940, as amended.
Section 5.5 Capitalization. The Company's capital stock consists solely
of One Thousand (1,000) shares of duly authorized voting common stock, with a
par value of $.01 per share, of which One Hundred (100) shares are issued and
outstanding on the date hereof (the "Outstanding Stock"). The Outstanding Stock
is and, as of the Initial Closing, the remaining shares of Common Stock will be,
validly issued and outstanding, fully paid and nonassessable. The Outstanding
Stock constitutes on the date hereof all of the issued and outstanding capital
stock of the Company and on the Initial Closing Date, the Common Stock will
constitute all of the issued and outstanding capital stock of the Company. There
are no outstanding securities convertible into or exchangeable for, and no
outstanding options, warrants or other rights to purchase or to subscribe for,
any shares of capital stock or other securities of the Company, other than as
set forth herein. There are no outstanding
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agreements, arrangements, commitments or understandings of any kind affecting or
relating to the voting, issuance, purchase, redemption, repurchase or transfer
of any of the capital stock of the Company, other than as set forth herein or in
the Shareholders Agreement. Except as provided herein, there are no options,
warrants, rights or any other agreement or instrument giving any person any
right under any circumstances to acquire any shares of capital stock of the
Company. Seller has good and valid marketable title to the Outstanding Stock and
the sole right to vote, sell, transfer and deliver the Outstanding Stock and on
the Closing Date, Seller will have good and marketable title to the Common Stock
and the sole right to vote, sell, transfer and deliver the Common Stock. Except
as contemplated by this Agreement, neither the Company nor Seller has agreed
with any person to sell, transfer or deliver the Outstanding Stock or other
capital stock of the Company. Upon the sale of the Initial Shares to Buyer
hereunder, Buyer shall have good and valid marketable title thereto, free and
clear of all liens, encumbrances, security interests and restrictions of any
kind and such Initial Shares shall represent 49% of the issued and outstanding
shares of the Company.
Section 5.6 Assets and Liabilities of the Company. As of the Initial
Closing Date, the Company shall own and have good and marketable title to the
assets and properties listed on Schedule 5.6, including, without limitation, the
Construction Permit, the Tower Lease and the TBA that MBC shall assign to the
Company with the consent of High Mountain and shall have no debts, obligations
or liabilities of any kind whatsoever, whether accrued, contingent or otherwise,
except those arising under this Agreement, the Transaction Documents, the Tower
Lease, the TBA and the Communications Act.
Section 5.7 Broker. Neither MBC or Seller or any person acting on their
behalf has incurred any liability for any finder's or broker's fees or
commissions in connection with the transactions contemplated by this Agreement.
Section 5.8 Construction Permit. The Construction Permit has been
validly issued and on the date hereof, MBC is the authorized legal holder
thereof and on the Initial Closing Date, the Company will be the authorized
legal holder thereof. The Construction Permit is in full force and effect and is
not subject to any restriction or condition that would delay or adversely affect
the construction of the Station. Seller, MBC and the Company are in compliance
in all material respects with the Construction Permit and all laws, regulations,
and rules, including the Communications Act. Each of Seller, MBC and the Company
have filed all returns, reports and statements required to be filed in
connection with the Construction Permit.
Section 5.9 Tower Site. On the Initial Closing Date, the Company shall
have a valid and enforceable lease for the site specified in the Station's
Construction Permit as described on Schedule 5.9 hereto (the "Tower Site"). The
Company shall have become the Lessee under the Agreement of Lease, dated
November 5, 1995 by and between Poca River Hunting, Fishing & Recreation Club,
Inc. (the "Landlord") and ▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Tower Lease") and the Tower Lease
shall have been amended substantially incorporating the changes as set forth in
Schedule 5.9 hereto.
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Section 5.10 Consents. Except for the Pro Forma FCC Consent, no
consent, approval, permit or authorization of, or filing with, any governmental
authority or other party is required to consummate the transactions contemplated
by this Agreement at or before the Initial Closing.
Section 5.11 Claims and Legal Actions. There is no claim, legal action,
suit, arbitration, counterclaim, governmental investigation or other proceeding,
nor any order, decree or judgment, in progress or pending, or to the knowledge
of Seller or MBC, threatened against Seller, MBC or the Company.
Section 5.12 Disclosure. No representation or warranty by Seller, MBC
or the Company in this Agreement, and no schedule, document, statement,
certificate furnished or to be furnished by Seller, MBC or the Company to Buyer
pursuant hereto, contains or will contain any untrue statement of a material
fact, or omits or will omit to state a material fact necessary to make the
statements or facts contained herein or therein not misleading.
ARTICLE 6. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER AT THE INITIAL
CLOSING
The obligations of Buyer at the Initial Closing are subject to the
fulfillment prior to or at the Initial Closing of the following conditions (any
one or more of which may be waived in whole or in part by Buyer at Buyer's
option):
Section 6.1 Representations and Warranties. The representations and
warranties of Seller, MBC and the Company contained in this Agreement relating
to the Initial Closing shall be true and correct in all material respects on and
as of the Initial Closing Date, with the same force and effect as though made on
and as of such date.
Section 6.2 Covenants and Conditions. Seller, MBC and the Company shall
have performed in all material respects all of their respective obligations and
agreements and complied with all of their respective covenants and conditions
contained in this Agreement to be performed or complied with by Seller, MBC and
the Company on or before the Initial Closing Date.
Section 6.3 Approvals for Tower Site. Seller, MBC and the Company shall
have obtained all necessary governmental consents or approvals required for the
construction and operation of the Station at the Tower Site, and any such
construction shall have been conducted in accordance with the terms of such
consents or approvals and with any applicable laws, rules and regulations of any
governmental authority, including, without limitation, the FCC, any municipality
or the Federal Aviation Administration.
Section 6.4 Contribution. The Pro Forma FCC Consent shall have been
granted and shall have become a Final Order, and Seller shall have caused MBC to
contribute the
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Construction Permit to the Company in accordance with Section 3.5, free and
clear of any claims, liabilities, security interests, mortgages, liens, pledges,
conditions, charges or encumbrances of any nature whatsoever.
Section 6.5 Tower Site. The Company shall have a valid and enforceable
lease for the Tower Site and the Company shall be a party to the Tower Lease as
the Lessee thereunder and the Tower Lease, as amended as set forth in Schedule
5.9, shall be a valid and binding obligation of the parties thereto, enforceable
by the Company against the Landlord in accordance with its terms.
Section 6.6 Deliveries. Seller, MBC and the Company shall have
delivered to Buyer the following, in form and substance reasonably satisfactory
to Buyer and Buyer's Counsel:
(a) Initial Shares. Certificates representing the Initial
Shares, which shall be either duly endorsed or accompanied by stock powers duly
executed in favor of Buyer.
(b) Certificate of Incorporation. A copy of the Certificate of
Incorporation of the Company, certified as of a date not earlier than ten (10)
days prior to the Initial Closing Date by the Secretary of State of Delaware.
(c) Bylaws. A copy of the Bylaws of the Company, certified as
of the Initial Closing Date by the Secretary or an Assistant Secretary of the
Company.
(d) Resolutions. Copies of resolutions adopted by the Board of
Directors and shareholders of the Company and MBC authorizing and approving the
execution and delivery of this Agreement and the Transaction Documents and the
consummation of the transactions contemplated hereby and thereby, certified by
the Secretary or an Assistant Secretary of the Company and MBC, respectively, as
being true and complete on the Initial Closing Date.
(e) Certificates. Certificates, dated as of the Initial
Closing Date, executed on behalf of Seller, MBC and the Company by Seller and an
officer of the Company and MBC respectively, each certifying: (1) that the
representations and warranties of Seller, MBC and the Company contained in this
Agreement are true and complete in all material respects as of the Initial
Closing Date as though made on and as of that date; and (2) that Seller, MBC and
the Company have performed in all material respects all of their respective
obligations and agreements under this Agreement to be performed and complied
with by Seller, MBC and the Company on or before the Initial Closing Date.
(f) Opinions of Counsel. Opinions of Seller's, MBC's and the
Company's counsel and communications counsel dated as of the Initial Closing
Date, substantially in the form of Schedule 6.7(f) hereto.
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(g) Consents. A manually executed copy of any instrument
evidencing receipt of any Consent.
(h) Transaction Documents. Copies of the Transaction Documents
duly executed by Seller and the Company.
(i) Additional Instruments. Such additional instruments and
documents as may be required to consummate the transactions contemplated hereby.
Section 6.7 Construction Permit; Adverse Proceedings. The Company shall
be the legal and valid holder of the Construction Permit and the Construction
Permit shall be in full force and effect without any modification thereto. There
shall not be any order, decree or judgment in effect or any lawsuit, claim,
legal action, proceeding or investigation pending or threatened before any
court, administrative agency or arbitrator which is reasonably likely to
adversely affect the construction, business, property, assets or condition
(financial or otherwise) of the Station or the Company or which seeks to enjoin
or prohibit, or otherwise questions the validity of, any action taken or to be
taken pursuant to or in connection with this Agreement.
Section 6.8 No Liabilities. The Company shall have no debts,
obligations or liabilities of any kind whatsoever, whether accrued, contingent
or otherwise except for this Agreement, the Transaction Documents, the TBA, the
Tower Lease and the Communications Act.
Section 6.9 TBA. Buyer and High Mountain shall have entered into the
Time Brokerage Purchase Agreement of even date herewith (the "TBA Purchase
Agreement") providing initially for the license and thereafter the sale by High
Mountain to Buyer of the TBA and effective upon the Initial Closing, High
Mountain shall have licensed to Buyer all of High Mountain's rights and
obligations under the TBA. MBC shall have assigned to the Company all of MBC's
rights and obligations under the TBA, the TBA shall be the valid and binding
obligation of the Company, enforceable by Buyer against the Company in
accordance with its terms. The TBA Purchase Agreement shall be a valid and
binding agreement of the parties thereto, enforceable in accordance with its
terms.
ARTICLE 7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER, MBC AND THE
COMPANY AT THE INITIAL CLOSING
The obligations of Seller, MBC and the Company at the Initial Closing
are subject to the fulfillment prior to or at the Initial Closing of the
following conditions (any one or more of which may be waived in whole or in part
by Seller, MBC and the Company at their option):
Section 7.1 Representations and Warranties. The representations and
warranties of Buyer contained in this Agreement relating to the Initial Closing
shall be true and correct in
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all material respects on and as of the Initial Closing Date, with the same force
and effect as though made on and as of such date.
Section 7.2 Covenants and Conditions. Buyer shall have performed in all
material respects all of its obligations and agreements and complied with all of
its covenants and conditions contained in this Agreement to be performed or
complied with by Buyer on or before the Initial Closing Date.
Section 7.3 Deliveries. Buyer shall have delivered to Seller, MBC and
the Company the following in form and substance reasonably satisfactory to
Seller, MBC, the Company and their Counsel:
(a) Purchase Price. The Initial Shares Purchase Price
described in Section 2.3.
(b) Resolutions. Copies of resolutions adopted by the Board of
Directors of Buyer, authorizing and approving the execution of this Agreement
and the consummation of the transactions contemplated hereby, certified by its
Secretary as being true and correct on the Initial Closing Date.
(c) Officer's Certificate. A certificate, dated as of the
Initial Closing Date, executed on behalf of Buyer by an officer of Buyer,
certifying (1) that the representations and warranties of Buyer contained in
this Agreement are true and complete in all material respects as of the Initial
Closing Date as though made on and as of that date, and (2) that Buyer has
performed in all material respects all of its obligations and agreements under
this Agreement to be performed and complied with by Buyer on or before the
Initial Closing Date.
(d) Opinion of Counsel. An opinion of Buyer's counsel dated as
of the Initial Closing Date, substantially in the form of Schedule 7.3(d)
hereto.
(e) Transaction Documents. Copies of the Transaction Documents
duly executed by Buyer.
(f) Additional Instruments. Such additional instruments and
documents as may be required to consummate the transactions contemplated hereby.
Section 7.4 Adverse Proceedings. Other than any action filed by or at
the request of Seller, the Company, MBC or any affiliate thereof, there shall
not be any order, decree or judgment in effect or any lawsuit, claim, legal
action, proceeding or investigation pending or threatened before any court,
administrative agency or arbitrator which seeks to enjoin or prohibit, or
otherwise questions the validity of, any action taken or to be taken pursuant to
or in connection with this Agreement.
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Section 7.5 TBA. The TBA Purchase Agreement shall have been duly
executed by Buyer. The TBA Purchase Agreement shall be a valid and binding
obligation of the parties thereto, enforceable in accordance with its terms.
ARTICLE 8. CONSTRUCTION AND OPERATION OF THE STATION
Section 8.1 General. Following the date hereof and prior to the Second
Closing Date without Buyer's prior written consent: (i) neither the Company nor
Seller shall enter into any contracts or agreements creating any security
interests, mortgages, liens or encumbrances on the assets of the Company or the
Station; (ii) Seller shall not enter into any contract or agreement creating any
liens or security interests in any shares of capital stock of the Company; (iii)
the Company shall be operated in a prudent and businesslike manner and in
accordance with the other covenants in this Article 8; (iv) the Company shall
not amend its Certificate of Incorporation or By-Laws; and (v) neither Seller
nor the Company shall take or permit, or agree to take or permit, any action
within Seller's or the Company's control that is inconsistent with the proper
performance of their obligations under this Agreement, including but not limited
to, the issuance or sale of any capital stock of the Company or the granting to
any person or entity, other than Buyer, an option or similar right to purchase
any of the Company's capital stock.
Section 8.2 FCC Consent.
(a) The conveyance of the Option Shares by Seller to Buyer as
contemplated by this Agreement is subject to the prior consent and approval of
the FCC.
(b) Seller and Buyer shall prepare and, within five (5)
business days after Seller's receipt of the Option Notice (as defined below),
shall file with the FCC an appropriate application for the FCC Consent. Seller
and Buyer shall thereafter prosecute the application for the FCC Consent with
all diligence and otherwise use their respective best efforts to obtain a grant
of the application for the FCC Consent as expeditiously as possible. 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 (i) the condition
was imposed on it as the result of a circumstance the existence of which does
not constitute a breach by that party of any of its representations, warranties,
or covenants hereunder, and (ii) compliance with the condition would have a
material adverse effect upon it. Buyer and Seller shall oppose any petitions to
deny or other objections filed with respect to the application for the FCC
Consent and any requests for reconsideration or judicial review of the FCC
Consent.
(c) If the Second 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 Article 17, the parties shall jointly
request one or more extensions of the effective period of the FCC Consent. No
extension of the effective period of the FCC Consent shall limit the exercise by
either party of its right to terminate the Agreement under Article 17.
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Section 8.3 Employee Benefit Plans. Except as may be consented to in
writing by Buyer, the Company will not adopt any employee benefit plans or
arrangements applicable to the employees of the Company, including, without
limitation, pension or thrift plans, individual or supplemental pension or
accrued compensation arrangements, incentive plans, or bonus and termination
arrangements; provided, however, that nothing herein shall prevent the Company
from adopting reasonable policies on vacation and sick leave for its employees
or offering them participation in employer-paid group health plans or any other
benefits required by law.
Section 8.4 Labor Relations. Neither the Seller nor the Company (i)
will enter into any collective bargaining agreement with respect to the Station;
(ii) will enter into any written or oral contracts of employment; (iii) will
incur any fixed or contingent liabilities or obligations with respect to any
person employed at the Station; and (iv) will fail to comply in all material
respects with applicable laws, rules and regulations relating to the employment
of labor including, without limitation, those related to wages, hours,
collective bargaining, occupational safety, discrimination, and the payment of
social security and other payroll related taxes.
Section 8.5 Licenses. Neither the Seller nor the Company shall cause,
or fail to take any action necessary to prevent, (i) any License to expire, be
surrendered or modified; (ii) any governmental authority to institute
proceedings for the suspension, revocation, or adverse modification of any
License; and (iii) any governmental authority to dismiss or deny any pending
application concerning the construction or operation of the Station.
Section 8.6 Compliance with Laws. The Seller and the Company shall
construct and operate the Station in all material respects in accordance with
all applicable laws, rules and regulations and the terms of all Licenses.
Section 8.7 Notification. Seller and the Company shall give Buyer
prompt written notice of any material change in any of the information contained
in the representations and warranties of Seller and the Company set forth in
this Agreement or in the Schedules hereto.
Section 8.8 Preservation of Business. Seller and the Company shall
preserve the business and organization of the Station intact and use their best
efforts to keep available to the Station its employees and to preserve the
Station's relationships with suppliers, advertisers and others having business
relations with it, to the end that the business, operations, and prospects of
the Station shall be unimpaired at the Second Closing.
Section 8.9 Performance of Agreements. The Company and Seller shall
perform their respective obligations under this Agreement, the Shareholders
Agreement and the Construction Agreement, in each case in accordance with the
terms thereof.
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Section 8.10 Cable Carriage. Consistent with the rules and regulations
of the FCC, the Company shall notify the cable operators within the Charleston,
West Virginia Designated Market Area of the Station's election to be carried on
a "must-carry" basis on such cable operators' cable television systems. The
Company shall use its best efforts to provide such notices on the date that is
sixty (60) days prior to commencing operations pursuant to program test
authority as defined by FCC rules and regulations, but in no event shall such
notices be provided later than thirty (30) days after the commencement of such
operations.
ARTICLE 9. THE OPTION AND THE SECOND CLOSING
Section 9.1 Option.
(a) In consideration of Buyer's undertakings herein and in the
Transaction Documents, the receipt and sufficiency of which are hereby
acknowledged by Seller, Seller hereby grants to Buyer an exclusive and
irrevocable option to purchase from Seller the Option Shares (the "Option"),
free and clear of any claims, liabilities, security interests, mortgages, liens,
pledges, conditions, charges or encumbrances of any nature whatsoever.
(b) Buyer may give written notice to Seller of Buyer's
intention to exercise the Option (the "Option Notice") at any time during the
ninety (90) day period beginning on the date the Station commences operations
pursuant to program test authority (the "Option Period"). In the event that
Buyer fails to give Seller the Option Notice prior to the end of the Option
Period, then the Option shall expire.
(c) Within five (5) business days of Seller's receipt of the
Option Notice, Seller and Buyer shall file with the FCC the application for the
FCC Consent and shall file such notices with, and obtain such approvals of, any
other governmental authorities that are required for the acquisition by Buyer of
the Option Shares and shall diligently and expeditiously prosecute such filings.
Section 9.2 The Second Closing. The Second Closing shall take place at
10:00 a.m., Washington, D.C. time, on a date to be set by Buyer on no less than
five (5) days' written notice to Seller, which date shall not be sooner than the
first business day after the date on which the FCC Consent is granted and shall
not be later than the tenth business day after the date on which the FCC Consent
has become a Final Order, subject to the satisfaction of all other conditions
precedent to the holding of the Second Closing. The Second Closing shall take
place at the offices of Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or such other place as the parties
shall mutually agree. If Buyer fails to specify the date for Second Closing
prior to the fifth business day after the date upon which the FCC Consent has
become a Final Order, the Second Closing shall take place on the tenth business
day after the date upon which the FCC Consent has become a Final Order.
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Section 9.3 Sale of Option Shares. Subject to the terms and conditions
set forth in this Agreement, including exercise by Buyer of the Option, Seller
hereby agrees to sell, transfer and deliver to Buyer on the Second Closing Date,
and Buyer agrees to purchase, the Option Shares, free and clear of any claims,
liabilities, security interests, mortgages, liens, pledges, conditions, charges
or encumbrances of any nature whatsoever.
Section 9.4 Purchase Price for Option Shares.
(a) The purchase price for the Option Shares (the "Option
Price") shall be the lesser of (i) an amount equal to Fifty One Percent (51%) of
the Fair Market Value of the Company, as determined utilizing the procedures set
forth in subsection (b) and (ii) $102,000. The Option Price shall be paid at the
Second Closing by Buyer or Buyer's designee to Seller by wire transfer of
immediately available federal funds or other means mutually satisfactory to
Buyer and Seller in accordance with written instructions provided by Seller to
Buyer no less than two (2) business days prior to the Second Closing Date. If
Fifty One Percent (51%) of the Fair Market Value of the Company as determined
utilizing the procedures set forth in Subsection (b) is less than $102,000,
Buyer shall not have the right to exercise the Option; provided, however, that
the Option shall remain in full force for the Option Period and be exercisable
by Buyer upon obtaining a satisfactory appraisal.
(b) Fair Market Value of the Company shall be determined by an
appraisal, in accordance with the following provisions:
(1) The Fair Market Value of the Company shall be
equal to the appraised value of the assets of the Company as of the date of the
Option Notice exclusive of any broker's fee, less the amount of any outstanding
debt of the Company.
(2) The appraisal will be conducted in conformity
with standard appraisal techniques in use at the time of the appraisal, applying
the market and economic factors then relevant.
(3) The appraisal will be conducted by a qualified
appraiser with experience in the television broadcasting industry to be agreed
upon by Seller and Buyer; provided that, if the parties fail to agree on an
appraiser, any party may apply to the American Arbitration Association for the
appointment of an appraiser, who shall be a qualified appraiser with experience
in the television broadcasting industry.
(4) The value of the assets of the Company arrived at
by the appraiser shall, absent manifest error, be conclusive and binding on the
relevant parties.
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ARTICLE 10. REPRESENTATIONS AND WARRANTIES OF BUYER REGARDING THE SECOND CLOSING
All of the representations and warranties of Buyer set forth in Article
4 hereof shall be true and correct in all material respects as of the Second
Closing Date, with the same force and effect as though made on and as of the
Second Closing Date, except as otherwise contemplated by the express terms of
this Agreement. For the purpose of this Article 10, each reference in Article 4
hereof to the "Initial Closing," "Initial Shares" and the "Initial Closing Date"
shall be deemed to be a reference to the Second Closing, Option Shares and the
Second Closing Date, respectively.
ARTICLE 11. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY AND SELLER
REGARDING THE SECOND CLOSING
All of the representations and warranties of the Company and Seller set
forth in Article 5 hereof shall be true and correct in all material respects as
of the Second Closing Date, with the same force and effect as though made on and
as of the Second Closing Date, except as otherwise contemplated by the express
terms of this Agreement. For the purpose of this Article 11, each reference in
Article 5 hereof to the "Initial Closing" and the "Initial Closing Date" shall
be deemed to be a reference to the Second Closing and the Second Closing Date,
respectively, and each reference to the "Initial Shares" shall be deemed to be a
reference to the Option Shares. Each of Seller and the Company further jointly
and severally represent, warrant and covenant to Buyer as follows:
Section 11.1 Contracts. Within ten (10) days after Seller receives the
Option Notice, Seller shall deliver to Buyer a true and complete list and copies
of the Contracts. The Contracts shall be valid and binding agreements of the
Company enforceable in accordance with their terms. The Company shall have
complied with the Contracts in all material respects, and the Company shall not
be in default under any of the Contracts.
Section 11.2 Copyrights, Trademarks and Similar Rights. Within ten (10)
days after Seller receives the Option Notice, Seller shall deliver to Buyer a
true and complete list and copies of all Intangibles.
Section 11.3 Governmental Authorizations. Within ten (10) days after
Seller receives the Option Notice, Seller shall deliver to Buyer a true and
complete list and copies of the Licenses. The Company shall be the authorized
legal holder of the Licenses. The Licenses shall comprise all of the licenses,
permits and other authorizations required from governmental and regulatory
authorities for the lawful conduct of the business and operations of the Station
in the manner and to the full extent they are conducted on the Second Closing
Date and for the lawful broadcasting by the Company from the Tower Site as
contemplated by the Construction Permit, and none of the Licenses shall be
subject to any restriction or condition which would limit the full operation of
the Station. The Licenses shall be in full force and effect, and the operation
of the Station shall be in accordance therewith. Seller has
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no knowledge of any events or conditions relating to Seller or Seller's
ownership and control of the Company that could prevent the FCC from approving
the transfer of control of the Company to Buyer.
Section 11.4 Title to and Condition of Real Property. The Tower Lease
shall be in full force and effect and there shall be no defaults thereunder or
any event that could constitute an event of default thereunder upon the giving
of any notice or the passage of time. The Tower Site (including the improvements
thereon) (i) shall be in good condition and repair consistent with its present
use, (ii) shall be available for immediate use in the conduct of the business
and operations of the Station, and (iii) shall comply with all applicable
building or zoning codes and the regulations of any governmental authority
having jurisdiction.
Section 11.5 Title to and Condition of Tangible Personal Property.
Within ten (10) days after Seller receives the Option Notice, Seller shall
deliver to Buyer a true and complete list of all material items of Tangible
Personal Property. The Company shall own and have good title to each item of
Tangible Personal Property or shall lease such Tangible Personal Property and
none of the Tangible Personal Property shall be subject to any security
interest, mortgage, pledge, conditional sales agreement, or other lien or
encumbrance, except for liens for current taxes not yet due and payable. All
items of transmitting and studio equipment included in the Tangible Personal
Property (i) shall have been maintained in a manner consistent with generally
accepted standards of good engineering practice, and (ii) shall permit the
Station to operate 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.
Section 11.6 Compliance With Laws. The Company shall be in compliance
in all material respects with all laws, regulations and governmental orders
applicable to the ownership or use of its assets and the conduct of the business
and operations of the Station.
Section 11.7 Reports. All returns, reports and statements which the
Station is required to file with the FCC or with any other governmental agency
shall have been filed and shall be complete and correct in all material
respects.
Section 11.8 Public Inspection File. The Station's public inspection
file shall be located at the Station's main studio and shall contain, in all
material respects, the original or copies of all applications, reports and other
documents and records relating to the operation of the Station that are required
to be in such file under the rules and regulations of the FCC.
Section 11.9 Taxes.
(a) The Company shall have filed all Tax Returns and shall
have paid all Taxes shown on such Tax Returns on any assessment received by the
Company, provided
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that the Company shall not be required to pay any Tax the validity of which is
being contested by the Company in good faith and pursuant to appropriate
proceedings;
(b) such reports and Tax Returns shall have been prepared in
accordance with applicable provisions of the Internal Revenue Code of 1986, as
amended, and the rules and regulations thereunder and with applicable provisions
of state laws, rules and regulations concerning taxation; and
(c) the Company shall not have waived any statute of
limitations with respect to the payment of any taxes.
Section 11.10 Dividends and Redemptions. The Company shall not have
made at any time any declaration, set aside or payment of any dividend or other
distribution in respect of any shares of capital stock of the Company, or any
direct or indirect redemption, purchase or other acquisition of such stock.
Section 11.11 Notices; Condemnation.
(a) Neither the Company nor Seller shall have received any
written notice or order by any governmental or other public authority, any
insurance company that has issued a policy of insurance with respect to the
Station's assets or business, or any board of fire underwriters or other body
exercising similar functions that relates to material violations of building,
safety, fire or other ordinances or regulations by the Station or requests the
performance of any significant repairs, alterations or other work to the assets
of the Station; and
(b) there will not be any pending or threatened condemnation,
expropriation, eminent domain, zoning or similar proceeding materially affecting
all or any portion of the assets of the Station.
Section 11.12 Liabilities of the Company. The Company shall have no
liabilities or obligations of any sort whatsoever, except those arising under
the Licenses, those arising under this Agreement, the Tower Lease, the TBA, the
Transaction Documents and those consented to in writing by Buyer.
Section 11.13 Disclosure. No representation or warranty by Seller or
the Company in this Agreement, and no schedule, document, statement, certificate
furnished or to be furnished to Buyer pursuant hereto, contains or will contain
any untrue statement of a material fact, or omits or will omit to state a
material fact necessary to make the statements or facts contained herein or
therein not misleading.
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ARTICLE 12. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER AT THE SECOND
CLOSING
The obligations of Buyer under this Agreement at the Second Closing are
subject to the fulfillment prior to or at the Second Closing of the following
conditions (any one or more of which may be waived in whole or in part by Buyer
at Buyer's option):
Section 12.1 Representations and Warranties. The representations and
warranties of Seller and the Company contained in this Agreement relating to the
Second Closing shall be true and correct in all material respects on and as of
the Second Closing Date, with the same force and effect as though such
representations and warranties had been made on as of such date.
Section 12.2 Covenants and Conditions. Seller and the Company shall
have performed in all material respects all of their respective obligations and
agreements and complied with all of their respective covenants and conditions
contained in this Agreement to be performed or complied with by Seller and the
Company on or before the Second Closing Date.
Section 12.3 FCC Consent. The FCC Consent shall have been granted and
shall have become a Final Order. The Company shall be the holder of all of the
FCC Licenses necessary for the operation of the Station and such FCC Licenses
shall be in full force and effect.
Section 12.4 Consents. All material consents and approvals of all other
governmental authorities, bodies or agencies necessary for the consummation of
the transactions contemplated by this Agreement to occur at the Second Closing,
shall have been obtained, all without any conditions which would be unduly
burdensome on, or have a material adverse effect upon Buyer or the Company.
Section 12.5 Deliveries. Seller and the Company shall have delivered to
Buyer the following, in form and substance reasonably satisfactory to Buyer and
Buyer's Counsel:
(a) Option Shares. Certificates representing the Option
Shares, which shall be either duly endorsed or accompanied by stock powers duly
executed in favor of Buyer.
(b) Certificate of Incorporation. A copy of the Certificate of
Incorporation of the Company, certified as of a date not earlier than ten (10)
days prior to the Second Closing Date by the Secretary of State of Delaware.
(c) Bylaws. A copy of the Bylaws of the Company, certified as
of the Second Closing Date, by the Secretary or Assistant Secretary of the
Company.
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(d) Resolutions. Copies of resolutions adopted by the Board of
Directors of the Company, authorizing and approving the execution and delivery
of this Agreement and the Transaction Documents and the consummation of the
transactions contemplated hereby and thereby, certified by the Secretary or
Assistant Secretary of the Company, respectively, as being true and complete on
the Second Closing Date.
(e) Consents. A manually executed copy of any instrument
evidencing receipt of any Consent.
(f) Estoppel Certificates. Estoppel Certificates of the
lessors of all leasehold and subleasehold interests included in the Real
Property Interests.
(g) Certificates. Certificates, dated as of the Second Closing
Date, executed on behalf of Seller and the Company by Seller and an officer of
the Company, respectively, each certifying: (1) that the representations and
warranties of Seller and the Company contained in this Agreement are true and
complete in all material respects as of the Second Closing Date as though made
on and as of that date; and (2) that Seller and the Company have performed in
all material respects all of their respective obligations and agreements in this
Agreement to be performed and complied with by Seller and the Company on or
before the Second Closing Date.
(h) Opinions of Counsel. Opinions of Seller's and the
Company's counsel and communications counsel dated as of the Second Closing
Date, substantially in the form of Schedule 12.5(h) hereto.
(i) Additional Instruments. Such additional instruments and
documents as may be required to consummate the transactions contemplated hereby.
Section 12.6 Adverse Proceedings. There shall not be any order, decree
or judgment in effect or any lawsuit, claim, legal action, proceeding or
investigation pending or threatened before any court, administrative agency or
arbitrator which is reasonably likely to adversely affect the construction,
business, property, assets or condition (financial or otherwise) of the Station
or which seeks to enjoin or prohibit, or otherwise questions the validity of,
any action taken or to be taken pursuant to or in connection with this
Agreement.
Section 12.7 TBA. The TBA shall be in full force and effect, and the
Company shall have complied in all material respects with its obligations
thereunder. The closing under the TBA Purchase Agreement (the "TBA Closing")
shall have occurred simultaneously with the Closing hereunder and upon the TBA
Closing, High Mountain shall no longer have any rights under the TBA and Buyer
and the Company shall be the only parties with any rights or obligations
thereunder.
Section 12.8 Adverse Change. Between the date of this Agreement and the
Second Closing Date, there shall have been no material adverse change in the
business, assets,
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properties or financial condition of the Station, including any unrestored or
uninsured damage, destruction, or loss affecting any assets that are material to
the conduct of the business of the Station.
Section 12.9 Tower Site. The Company shall hold a valid and enforceable
lease for the Tower Site pursuant to the Tower Lease, as amended as provided in
Schedule 5.9.
ARTICLE 13. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER AND THE COMPANY
AT THE SECOND CLOSING
The obligations of Seller and the Company at the Second Closing under
this Agreement are subject to the fulfillment prior to or at the Second Closing
of the following conditions (any one or more of which may be waived in whole or
in part by Seller or the Company at their option):
Section 13.1 Representations and Warranties. The representations and
warranties of Buyer contained in this Agreement relating to the Second Closing
shall be true and correct in all material respects on and as of the Second
Closing Date, with the same force and effect as though such representations and
warranties had been made on and as of such date.
Section 13.2 Covenants and Conditions. Buyer shall have performed in
all material respects all of its obligations and agreements and complied with
all of its covenants and conditions contained in the Agreement to be performed
or completed with on or before the Second Closing Date.
Section 13.3 FCC Consent. The FCC shall have granted the FCC Consent.
Section 13.4 Consents. All material consents and approvals of all other
governmental authorities, bodies or agencies necessary for the consummation of
the transactions contemplated by this Agreement to occur at the Second Closing,
the failure to obtain of which could have a material adverse effect on Seller,
shall have been obtained, all without any conditions which would be unduly
burdensome on, or have a material adverse effect upon Seller.
Section 13.5 Deliveries. Buyer shall have delivered the following, in
form and substance reasonably satisfactory to Seller, the Company and their
Counsel:
(a) Option Price. The Option Price described in Section 9.4;
and
(b) Resolutions. Copies of resolutions adopted by the Board of
Directors of Buyer, authorizing and approving the execution of this Agreement
and the consummation of the transactions contemplated hereby, certified by its
Secretary as being true and correct on the Second Closing Date.
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(c) Officer's Certificate. A certificate, dated as of the
Second Closing Date, executed on behalf of Buyer by an officer of Buyer,
certifying (1) that the representations and warranties of Buyer contained in
this Agreement are true and complete in all material respects as of the Second
Closing Date as though made on and as of that date, and (2) that Buyer has
performed in all material respects all of its obligations and agreements in this
Agreement to be performed and complied with by Buyer on or prior to the Second
Closing Date.
(d) Opinion of Counsel. An opinion of Buyer's counsel dated as
of the Second Closing Date, substantially in the form of Schedule 13.5(d)
hereto.
Section 13.6 TBA. The TBA shall be in full force and effect, and Buyer
shall have complied in all material respects with its obligations hereunder. The
TBA Closing shall have occurred simultaneously with the Closing hereunder.
Section 13.7 Adverse Proceedings. Other than any action filed by or at
the request of Seller, the Company, MBC or any affiliate thereof, there shall
not be any order, decree or judgment in effect or any lawsuit, claim, legal
action, proceeding or investigation pending or threatened before any court,
administrative agency or arbitrator which seeks to enjoin or prohibit, or
otherwise questions the validity of, any action taken or to be taken pursuant to
or in connection with this Agreement.
ARTICLE 14. JOINT COVENANTS
Section 14.1 Confidentiality. Buyer, on the one hand, and Seller, MBC
and the Company, on the other hand, shall each keep confidential all
confidential information obtained by it with respect to the other in connection
with this Agreement (except for such disclosure to attorneys, bankers,
underwriters, and investors, as may be appropriate in the furtherance of the
transactions contemplated by this Agreement or as may be required by law,
including by the securities laws or the rules and regulations of any security
exchange), and if the transactions contemplated hereby are not consummated for
any reason, each shall, to the extent reasonably possible, return to the other,
without retaining a copy thereof, any confidential schedules, documents or other
written information obtained from the other in connection with this Agreement
and the transactions contemplated hereby.
Section 14.2 Cooperation. Buyer, Seller, MBC and the Company shall
cooperate fully with each other and their respective counsels and accountants in
connection with any actions required to be taken as part of their obligations
under this Agreement, and the parties will use their commercially reasonable
efforts to consummate the transactions contemplated hereby and to fulfill their
obligations hereunder. No party shall take any action that is inconsistent with
its obligations under this Agreement, that would render any of its
representations or warranties herein untrue or incomplete or that could hinder
or delay the consummation of the transactions contemplated by this Agreement.
Notwithstanding the foregoing, and except as otherwise expressed in this
Agreement, Buyer shall have no
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obligation (a) to expend funds to obtain any of the Consents or (b) to agree to
any adverse change in any License or Contract in order to obtain a Consent
required with respect thereto.
Section 14.3 Governmental Consents. If any governmental consent
required for the consummation of the transactions contemplated hereby or the
satisfaction of any condition contained herein includes any condition, the party
upon which such condition is imposed shall use its best efforts to comply
therewith before the respective Closing to which such consent relates; provided,
however, that no party hereto shall be required to comply with any condition
that would be unduly burdensome or would have a material adverse effect upon
such party.
Section 14.4 Station Operation and Contracts. Buyer and Seller
specifically acknowledge that, as of the Initial Closing Date, the Station will
not have commenced broadcast operations. Seller, Buyer and the Company shall
cooperate and use their respective best efforts to complete construction of the
Station and commence broadcast operations at the Station as expeditiously as
possible. Seller, Buyer and the Company shall file such applications with the
FCC and other governmental authorities as are necessary to enable the Station to
operate in compliance with FCC and other applicable rules and regulations.
ARTICLE 15. TRANSFER TAXES; FEES AND EXPENSES
Section 15.1 Transfer Taxes. Buyer and Seller shall each pay one-half
of all transfer and documentary taxes or fees incurred in connection with the
transfer of the Initial Shares and Option Shares; provided, however, that Seller
shall be responsible for the payment of any federal, state or local income tax
applicable to Seller, MBC or the Company in connection with the transaction
contemplated by this Agreement.
Section 15.2 Filing Fees. Buyer and Seller shall each pay one-half of
all FCC filing fees and any other filing fee imposed by any other governmental
authority in connection with the transactions contemplated hereby.
Section 15.3 Expenses. Each party hereto shall be solely responsible
for all costs and expenses incurred by it in connection with the negotiation,
preparation and performance of and compliance with this Agreement.
ARTICLE 16. RISK OF LOSS
Section 16.1 Risk of Loss. The risk of any loss, damage or impairment,
confiscation or condemnation of any of the assets of Seller, MBC or the Company
from any cause whatsoever shall be borne by Seller and MBC. In the event of any
such loss, damage or impairment, confiscation or condemnation, the proceeds of,
or any claim for any loss payable under, any insurance policy, judgment or award
with respect thereto shall be applied
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to repair, replace or restore such assets to their prior condition as soon as
possible after such loss, impairment, condemnation or confiscation.
Section 16.2 Postponement of the Second Closing Date. If any damage or
destruction of the Company's assets occurs and such assets cannot be restored or
replaced on or before the Second Closing Date, the Second Closing Date shall be
postponed, the exact date and time of such postponed closing date to be such
date and time within the effective period of the FCC Consent as shall be as
agreed to by Seller, Buyer and the Company. If such assets cannot be restored or
replaced within the effective period of the FCC Consent, the parties shall join
in requesting an extension of the effective period of such consent for a period
not to exceed an additional one hundred eighty (180) days from the date of FCC
Consent.
Section 16.3 Option to Terminate. In the event of any damage or
destruction of the assets, if such assets have not been restored or replaced
within the effective period of the FCC Consent as extended, Buyer may, at its
option, proceed to close this Agreement and complete the restoration and
replacement of such damaged assets after the Second Closing Date, in which event
Seller shall deliver to Buyer all insurance proceeds payable to it or the
Company and received in connection with such damage or destruction of the assets
without limitation as to the costs and expenses arising in connection with such
restoration and replacement or terminate this Agreement.
ARTICLE 17. TERMINATION RIGHTS
Section 17.1 Termination by the Parties. This Agreement may be
terminated by either Buyer, on the one hand, or Seller and the Company, on the
other hand, if not then in material default, upon written notice to the other
upon the occurrence of any of the following:
(a) If the purchase of the Initial Shares or the Option Shares
by Buyer pursuant to this Agreement shall not have occurred on or prior to
September 2, 1998 (the "Upset Date"), provided that the Upset Date shall be
extended for an additional period of six months if the "Upset Date" in the TBA
Purchase Agreement is extended for an additional period of six months pursuant
to Section 12.1(a) of such Agreement;
(b) If the other party defaults in the observance or in the
due and timely performance of any of its material covenants or agreements
contained herein and such default has not been cured within fifteen (15) days
after notice by that party not in default;
(c) If on the date of either of the Closings, any of the
conditions precedent to the obligations of the terminating party set forth in
this Agreement as to that Closing have not been satisfied or waived and such
condition shall remain unsatisfied ten (10) days after notice thereof by the
terminating party to the other party;
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(d) If there shall be in effect on the date of either of the
Closings any final judgment, decree or order that would prevent or make unlawful
the actions to be taken at such Closing;
(e) Following the expiration of the Option Period, if Buyer
has not delivered to Seller an Option Notice indicating its intention to
exercise the Option; or
(f) If the TBA Purchase Agreement is terminated.
Each party hereto shall have an additional thirty (30) days to cure any
default or nonsatisfaction of a condition under Section 17.1(b) or (c) if such
party is diligently pursuing such cure and such extension does not have a
material adverse effect on the other party.
(g) If the Agreement is terminated, Buyer and Seller hereby
agree that Buyer shall sell, transfer and deliver to Seller the Initial Shares,
free and clear of any claims, liabilities, security interests, mortgages, liens,
pledges, conditions, charges or encumbrances of any nature whatsoever, on the
tenth (10th) business day following such termination (the "Repurchase Closing
Date"). The purchase price for the Initial Shares payable by Seller to Buyer
(the "Repurchase Price") shall be the Purchase Price paid by Buyer to Seller at
the Initial Closing. In addition, on the Repurchase Closing Date, Seller shall
purchase from Buyer the Station's equipment then being leased to the Company by
Buyer for a cash price equal to (i) if this Agreement is terminated as a result
of a material breach of this Agreement by Seller, MBC or the Company or if this
Agreement is terminated pursuant to Subsection (f) above as a result of a breach
by High Mountain under the TBA Purchase Agreement, one hundred percent (100%) of
Buyer's cost to purchase the equipment or (ii) if this Agreement is terminated
for any other reason, fifty percent (50%) of Buyer's cost to purchase the
equipment.
Section 17.2 Termination by Buyer. This Agreement may be terminated by
Buyer, if not then in material default, upon written notice to Seller and the
Company, if the FCC denies the Pro Forma FCC Consent.
ARTICLE 18. SPECIFIC PERFORMANCE
Seller, MBC and the Company agree that the Initial Shares and the
Option Shares are unique and valuable properties such that Buyer shall be
entitled to ▇▇▇ for specific performance of the terms of this Agreement in the
event of a breach by Seller, MBC or the Company with respect to either the
Initial Closing or the Second Closing, in which case Seller, MBC and the Company
shall waive the defense that there is an adequate remedy at law.
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ARTICLE 19. INDEMNIFICATION
Section 19.1 Seller's, MBC's and the Company's Indemnification. Seller,
MBC and the Company shall jointly and severally indemnify, defend and hold Buyer
harmless from and against any and all loss, cost, liability, damage and expense
(including legal and other expenses incident thereto) of every kind, nature or
description, arising out of: (a) the breach of any representation or warranty of
Seller, MBC or the Company set forth in this Agreement or in any schedule or
certificate delivered to Buyer pursuant hereto; (b) the breach of any of their
covenants or other agreements contained in or arising out of this Agreement or
the transactions contemplated hereby; or (c) the ownership of the Initial Shares
prior to the Initial Closing, and the conduct of the business and operations of
the Station and the ownership of the Option Shares prior to the Second Closing,
including, but not limited to, any liability, judgment or damages against Buyer,
its officers, directors, employees or agents, as a result of litigation
involving the Company, Seller or MBC or the operation of the Station prior to
each of the Closings. Buyer shall have the right to enforce its indemnification
rights hereunder against Seller, MBC or the Company at its option. Following the
Initial Closing, Seller and MBC shall not have any right of contribution against
the Company for any indemnification payment made by Seller or MBC hereunder and
each of Seller and MBC hereby waives any such right that it may have.
Section 19.2 Buyer's Indemnification. Buyer shall indemnify, defend and
hold Seller, MBC and the Company harmless from and against any and all loss,
cost, liability, damage and expense (including legal and other expenses incident
thereto) of every kind, nature or description, arising out of: (a) the breach of
any representation or warranty of Buyer set forth in this Agreement or in any
Schedule or certificate delivered to Seller, MBC or the Company pursuant hereto;
(b) the breach of any of Buyer's covenants and other agreements contained in or
arising out of this Agreement or the transactions contemplated hereby; or (c)
the ownership of the Common Stock after the Second Closing and the conduct of
the business and operations of the Station after the Second Closing, including,
but not limited to, any liability, judgment or damages against Seller, its
employees or agents, as a result of litigation involving Buyer or the operation
of the Station after the Second Closing.
Section 19.3 Notice of Claim. Buyer, on the one hand, and Seller, MBC
and the Company, on the other hand, upon discovery of the breach of any of the
representations, warranties and covenants of the other under this Agreement,
shall give to the other prompt written notice of the discovery of such breach.
If any action, suit or proceeding shall be commenced against, or any claim or
demand be asserted against Buyer, Seller, MBC or the Company, as the case may
be, in respect of which such party proposes to seek indemnification from the
other under this Article 19, then such party (hereinafter the "Claimant") shall
notify the party from whom indemnification is sought (hereinafter the
"Indemnifying Party") to that effect in writing with reasonable promptness and
in any event, if such claim arises out of a claim by a person or entity other
than the Claimant, then within fifteen (15) days after written notice of such
claim was given to the Claimant.
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Section 19.4 Assumption and Defense of Third-Party Action. If any claim
hereunder arises of out a claim against the Claimant by a third party, 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 fully
cooperate with the Indemnifying Party subject to reimbursement for actual
out-of-pocket expenses incurred 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 a claim requires immediate action,
the parties will make every effort to reach a decision with respect thereto as
expeditiously as possible. 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. In no event shall the Indemnifying Party have the right to agree to a
settlement which is binding upon Claimant without Claimant's prior consent which
shall not be unreasonably withheld.
Section 19.5 Limitation Period. No party shall be entitled to
indemnification hereunder with respect to the breach of any representation,
warranty or covenant contained herein unless such claim for indemnification is
asserted in writing to the party from whom indemnification is sought within six
(6) months after the Second Closing, except that any claim for indemnification
related to a claim by a third party, including claims by the Internal Revenue
Service against the Company, Seller or MBC shall be made within the statute of
limitations period applicable to such third-party claim.
ARTICLE 20. OTHER PROVISIONS
Section 20.1 Survival of Representations, Warranties and Covenants. The
representations, warranties, covenants, indemnities and agreements contained
herein are and will be deemed and construed to be continuing representations,
warranties, covenants, indemnities and agreements and will survive the
respective Closings as to which breach or claim is asserted until the
termination of the limitation period set forth in Section 19.5 hereof. Any
investigations by or on behalf of any party hereto prior to or after the
Closings shall not constitute a waiver as to enforcement of any representation,
warranty, covenant or agreement contained herein.
Section 20.2 Press Releases. Buyer, Seller, MBC and the Company shall
jointly prepare, and determine the timing of, any press release or other
announcement relating to the transactions contemplated by the Agreement. No
party will issue any press release or make any other public announcement
relating to the transactions contemplated by the Agreement without the prior
consent of the other parties, except that any party may make any disclosure
required to be made by it under applicable law (including the federal securities
laws) or by this Agreement if it determines in good faith that it is appropriate
to do so and provided further that it gives prior notice of any such disclosure
to the other party hereto.
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Section 20.3 Further Assurances. At and after each of the Closings,
Buyer, Seller, MBC and the Company will, without further consideration, execute
and deliver such further instruments and documents and do such other acts and
things as the other parties may reasonably request in order to effect or confirm
the transactions contemplated by this Agreement.
Section 20.4 Benefit and Assignment. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. No party hereto may assign, transfer, encumber or
otherwise convey its interest under this Agreement without the prior written
consent of the other parties hereto; provided, however, that Buyer may assign
its rights and interests under this Agreement to its lenders as collateral
security for Buyer's obligations to such lenders.
Section 20.5 Entire Agreement. This Agreement and the schedules
attached hereto embody the entire agreement and understanding of the parties and
supersedes any and all prior agreements, arrangements and understandings
relating to matters provided for herein. No amendment, waiver of compliance with
any provision or condition hereof, or consent pursuant to this Agreement will be
effective unless evidenced by an instrument in writing signed by the party
against whom enforcement of any waiver, amendment, extension or discharge is
sought.
Section 20.6 Headings. The headings are for convenience only and will
not control or affect the meaning or construction of the provisions of this
Agreement.
Section 20.7 Governing Law. The construction and performance of this
Agreement will be governed by the laws of the State of Florida (except for the
choice of law provisions thereof). Seller, MBC and the Company (a) hereby
irrevocably submit to the jurisdiction of the state courts of the State of
Florida for the Palm Beach County and to the jurisdiction of the United States
District Court for the Southern District of Florida, for the purpose of any
suit, action, or other proceeding arising out of or based upon this Agreement,
the Construction Agreement or the Shareholders Agreement or the subject matter
hereof or thereof brought by Buyer or its successors or assigns and (b) hereby
waive, and agree not to assert, by way of motion, as a defense, or otherwise, in
any such suit, action, or proceeding, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that the suit, action, or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that this Agreement, the Construction
Agreement, or Shareholders Agreement or the subject matter hereof or thereof may
not be enforced in or by such court, and (c) hereby waives and agrees not to
seek any review by any court of any jurisdiction other than Florida or the
United States which may be called upon to grant an enforcement of the judgment
of any such Florida State or Federal Court. Seller, MBC and the Company hereby
consent to service of process by certified or registered mail at the address to
which notices are to be given. Seller, MBC or the Company agree that its
submission to jurisdiction and its consent to service of process by mail is made
for the express benefit of
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Buyer. Final judgment against Seller, MBC and the Company in any such action,
suit or proceeding may be enforced in other jurisdictions by suit, action, or
proceeding on the judgment, or in any other manner provided by or pursuant to
the laws of such other jurisdiction; provided, however, that Buyer may at its
option bring suit, or institute other judicial proceedings, against Seller, MBC
and the Company or any of its assets in any state or federal court of the United
States or of any country or place where Seller, MBC and the Company or such
assets, may be found.
Section 20.8 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:
To Buyer: ▇▇▇▇▇▇ Communications of Charleston-29, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a copy (which shall ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
not constitute notice) to: Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
A Professional Limited Liability Company
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
To Company, MBC and Channel 29 of Charleston, Inc.
Seller: Mountaineer Broadcasting Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a copy (which shall ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
not constitute notice) to: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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 20.8.
Section 20.9 Counterparts. This Agreement may be signed in counterparts
with the same effect as if the signature on each counterpart were upon the same
instrument.
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Section 20.10 Guaranty. ▇▇▇▇▇▇ Communications Corporation hereby
guarantees the full, complete and timely performance by Buyer of its obligations
under this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Stock
Purchase Agreement as of the date first above written.
CHANNEL 29 OF CHARLESTON, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
MOUNTAINEER BROADCASTING CORP.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ COMMUNICATIONS OF
CHARLESTON-29, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
FOR PURPOSES OF SECTION 20.10 ONLY:
▇▇▇▇▇▇ COMMUNICATIONS
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
40
EXHIBIT A
CONSTRUCTION AGREEMENT
41
--------------------------------------------------------------------------------
CONSTRUCTION AGREEMENT
BY AND BETWEEN
CHANNEL 29 OF CHARLESTON, INC.
AND
▇▇▇▇▇▇ COMMUNICATIONS OF CHARLESTON-29, INC.
FOR
TELEVISION STATION WKRP-TV
CHARLESTON, WEST VIRGINIA
* * *
____________, 1997
--------------------------------------------------------------------------------
42
TABLE OF CONTENTS
PAGE
----
SECTION 1. DEFINITIONS .................................................... 1
SECTION 2. THE WORK ....................................................... 2
SECTION 3. COMPLETION OF THE WORK ......................................... 3
SECTION 4. COST OF THE WORK ............................................... 3
SECTION 5. BUDGET ......................................................... 3
SECTION 6. CONTRACTOR'S CONSTRUCTION OBLIGATIONS .......................... 3
SECTION 7. SUBCONTRACTORS ................................................. 4
SECTION 8. PROTECTION OF PERSONS AND PROPERTY ............................. 5
SECTION 9. INSURANCE ...................................................... 5
SECTION 10. DAMAGES ........................................................ 6
SECTION 11. TERMINATION .................................................... 6
SECTION 12. MISCELLANEOUS PROVISIONS ....................................... 6
SECTION 13. COUNTERPARTS ................................................... 8
SECTION 14. GUARANTY ....................................................... 8
43
CONSTRUCTION AGREEMENT
THIS CONSTRUCTION AGREEMENT (the "Agreement") is entered into as of
this _____ day of _____ 1997, by and between ▇▇▇▇▇▇ COMMUNICATIONS OF
CHARLESTON-29, INC., a Florida corporation ("Contractor"), and CHANNEL 29 OF
CHARLESTON, INC., a Delaware corporation ("Permittee").
W I T N E S S E T H
WHEREAS, Permittee holds a Construction Permit issued by the Federal
Communications Commission ("FCC") for new television station WKRP-TV, Channel
29, Charleston, West Virginia, FCC File No. BMPCT-891031KI (the "Construction
Permit");
WHEREAS, Permittee, Contractor, Mountaineer Broadcasting Corp. and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ have entered into a Stock Purchase Agreement dated as of
September 2, 1997 (the "Purchase Agreement"); and
WHEREAS, the Purchase Agreement provides that Contractor and Permittee
shall enter into this Agreement in order to permit Contractor to specify the
materials and equipment required to construct the facilities proposed in the
Construction Permit for new television station WKRP-TV, Channel 29, Charleston,
West Virginia (the "Station"), and to undertake, following consultation with
Permittee, such construction.
NOW THEREFORE, in consideration of the above and of the mutual promises
covenants contained herein, the parties, intending to be legally bound, agree as
follows:
SECTION 1. DEFINITIONS. In addition to the terms which are elsewhere
defined in this Agreement, the following terms shall have the respective
meanings hereinafter set forth:
A. "Budget" shall mean the preliminary budget as agreed to by
Permittee and Contractor, as described in Schedule A attached hereto, as such
Budget may be amended in accordance with Section 6 of this Agreement.
B. "Contract Documents" shall mean this Agreement, all
authorizations issued to the Permittee for the Station's operation and
construction, the Plans and Specifications and the Budget.
C. "Plans and Specifications" shall mean the plans and
specifications described in Schedule B attached hereto, and as supplemented from
time to time with the agreement of Contractor and Permittee.
44
- 2 -
D. "Work" shall mean all labor, materials and equipment
necessary or appropriate for the construction of the facilities described in the
Plans and Specifications as authorized in the Construction Permit.
SECTION 2. THE WORK.
A. Contractor agrees to do the following at Contractor's
expense:
(i) In consultation with Permittee, specify for purchase
by Contractor and lease by Permittee pursuant to the Lease Agreement (as defined
below) of the equipment, supplies and materials necessary or appropriate for the
construction and installation of the facilities described in the Plans and
Specifications and as authorized in the Construction Permit; and
(ii) With the concurrence of the Permittee, construct
and/or install the facilities described in the Plans and Specifications in
accordance with the Construction Permit and all applicable zoning, building or
other governmental laws, ordinances or regulations.
B. Permittee has done or agrees to do the following:
(i) Maintain in effect the Construction Permit, as it may
be modified, including the filing, if necessary, of an application to extend the
expiration date of the Construction Permit.
(ii) File with the FCC or any other governmental agency
and prosecute to the full extent any amendments to the Construction Permit and
any other applications which may be necessary for the implementation of the
Construction Permit, the construction of the Station, and the commencement and
continuation of the Station's operations as proposed in the Construction Permit;
(iii) Prepare and timely file with the FCC an application
for license for the constructed facilities in accordance with the rules and
regulations of the FCC; and
(iv) Cooperate with Contractor in timely filing and
obtaining any zoning, building and other permits that are required in connection
with the Plans and Specifications and the Work and execute the necessary
documents and agreements provided by Contractor in accordance with its
obligations hereunder and maintain in full force and effect the lease for the
Station's transmitter site.
45
- 3 -
SECTION 3. COMPLETION OF THE WORK.
A. The Work shall be commenced upon the execution of this
Agreement and shall be substantially completed in accordance with the buildout
schedule attached hereto as Exhibit D; provided, however, that the parties agree
that the dates set forth in such buildout schedule shall be extended by reason
of strikes, labor troubles, inability to procure material, failure of power,
governmental actions or inactions, riots, insurrection, war, weather conditions
or other reasons beyond the control of the parties.
B. The Work shall be deemed to be substantially complete when
(i) construction is sufficiently complete, in accordance with the Contract
Documents, so that the Station may begin operating pursuant to Program Test
Authority under FCC rules using the facilities proposed in the Construction
Permit and (ii) all permits, modifications of permits, authorizations and
licenses necessary to operate such facilities have been obtained. Any Work
required by the Contract Documents which remains to be completed after the date
of substantial completion shall, if reasonably feasible, be completed by
Contractor within ninety (90) days after the date of substantial completion.
C. Upon substantial completion of the construction of the
Station as specified above, Contractor and Permittee shall enter into a Lease
Agreement (the "Lease Agreement") which is attached hereto as Schedule C.
SECTION 4. COST OF THE WORK. Contractor shall be responsible for the
entire cost of the Work.
SECTION 5. BUDGET. Permittee and Contractor acknowledge and agree that
the Budget represents the estimated cost of the Work. Promptly after the date
hereof, Contractor shall obtain firm bids from responsible manufacturers,
suppliers, and contractors approved by Permittee for the performance of the Work
or portions thereof, and shall supply copies of all bids to Permittee. Upon
receipt of the bids and upon the agreement by Permittee and Contractor to accept
those bids, Contractor shall accept the bids and the Budget shall be adjusted to
conform to the bids.
SECTION 6. CONTRACTOR'S CONSTRUCTION OBLIGATIONS.
A. Contractor shall supervise and direct the Work, using its
best skill and attention and, subject to the concurrence of Permittee, shall be
responsible for all construction means, methods, techniques, sequences and
procedures and for coordinating all portions of the Work under this Agreement.
46
- 4 -
B. Contractor shall be responsible to the Permittee for the
acts and omissions of Contractor's employees, contractors, subcontractors and
other persons providing or performing any of the Work.
C. Unless otherwise provided in the Contract Documents,
Contractor shall provide all labor, materials, equipment, tools, construction,
equipment and machinery, water, heat, utilities, transportation and other
facilities and services necessary for the proper execution and completion of the
Work, whether temporary or permanent and whether or not incorporated or to be
incorporated in the Work.
D. Contractor shall at all times enforce strict discipline and
good order among any person working at the construction site.
E. Contractor warrants to Permittee that all materials and
equipment furnished under this Contract will be new, unless otherwise specified
in Exhibit A, and that all Work will be of good quality, free from faults and
defects and in conformance with the Contract Documents.
F. Contractor shall comply in all material respects with all
laws, ordinances, rules, regulations and lawful orders of any public authority
bearing on the performance of the Work.
G. Contractor shall prepare and submit to Permittee an
estimated progress schedule for the Work. The progress schedule shall be related
to the entire project to the extent required by the Contract Documents and shall
provide for expeditious and practicable completion of the Work.
H. Contractor at all times shall keep the construction site
free from accumulation of waste material or rubbish caused by the Work. At the
completion of the Work, Contractor shall remove or cause to be removed all waste
materials and rubbish from and about the construction site and tools,
construction equipment, machinery and surplus materials.
SECTION 7. SUBCONTRACTORS. By an appropriate written agreement,
Contractor shall require each subcontractor retained by Contractor to be bound
by the terms of the Contract Documents, and to assume all the obligations and
responsibilities which Contractor, by those documents, assumes toward Permittee.
47
- 5 -
SECTION 8. PROTECTION OF PERSONS AND PROPERTY.
A. Contractor shall take all reasonable precautions for the
safety of, and shall provide all reasonable protection to prevent damage, injury
or loss to:
(i) all individuals employed to perform the Work;
(ii) all materials and equipment to be used in the Work,
whether in storage, on or off the site, under the care, custody or control of
Contractor or any of its subcontractors; and
(iii) other property at the site or adjacent thereto.
B. Contractor shall give all notices and comply in all
material respects with all applicable laws, ordinances, rules, regulations and
lawful orders of any public authority bearing on the safety of persons or
property or their protection from damage, injury or loss.
SECTION 9. INSURANCE.
A. Contractor shall purchase and maintain or cause to be
purchased and maintained such insurance as will protect Contractor and Permittee
from claims set forth below which may arise out of or result from the Work,
whether such operations be by Contractor or by any subcontractor or by anyone
directly or indirectly employed by any of them, or by anyone for whose acts any
of them may be liable:
(i) claims under workmen's compensation, disability
benefit and other similar employee benefit acts;
(ii) claims for damages because of bodily injury,
occupational sickness or disease, or death;
(iii) claims for damages insured by usual personal injury
liability coverage which are sustained (1) by any person as a result of an
offense directly or indirectly related to the employment of such person by
Contractor, or (2) by any other person;
(iv) claims for damages, other than to the Work itself,
because of injury to or destruction of tangible property; and
48
- 6 -
(v) claims for damages because of bodily injury or death or
any property damage arising out of the ownership, maintenance or use of any
motor vehicle in respect of the Work.
B. The insurance required by this Section shall be written for
not less than the limits of liability agreed to by Contractor and Permittee or
required by law, whichever is greater.
C. Certificates of Insurance acceptable to Permittee and
Contractor shall be delivered to Permittee prior to commencement of the Work.
These Certificates shall contain a provision that coverage afforded under the
policies will not be canceled until at least thirty (30) days' prior written
notice has been given to the Permittee.
D. Permittee shall purchase and maintain property insurance
upon the entire Work to the full insurable value thereof. This insurance shall
insure against the perils of fire and extended coverage, shall include "all
risk" insurance for physical loss or damage including, without duplication of
coverage, theft, vandalism and malicious mischief and shall provide that all
proceeds from such insurance shall go to Contractor.
SECTION 10. DAMAGES. In the event of a default by Contractor of its
obligations under this Agreement or the failure of Contractor to complete the
Work, Contractor shall not be liable to Permittee for any consequential damages
as a result of such failure or delay. The sole liability of Contractor to
Permittee shall be for the full cost and expense of completing the Work in
accordance with the Contract Documents and the Plans and Specifications.
SECTION 11. TERMINATION. This Agreement shall terminate, and neither
party shall have any further obligation hereunder, upon the earlier to occur of
(a) the completion of the Work, (b) the Second Closing (as defined in the
Purchase Agreement) or (c) the termination of the Purchase Agreement in
accordance with its terms. This Agreement may also be terminated by either
Contractor or Permittee (the "Terminating Party") upon a material breach of this
Agreement by the other party hereto (the "Defaulting Party") if (i) the
Defaulting Party has not cured such breach within fifteen (15) days following
written notice of such breach by the Terminating Party to the Defaulting Party
and (ii) the Terminating Party is not in material breach of this Agreement or
the Purchase Agreement; provided that such cure period shall be extended for a
period of thirty days if the Defaulting Party is diligently attempting to cure
such breach and such extension will not have a material adverse effect on the
Terminating Party.
49
- 7 -
SECTION 12. MISCELLANEOUS PROVISIONS.
A. The Contract shall be governed by the laws of the State of
Florida applicable to contracts made and to be performed there, without
reference to the principles of the conflicts of law.
B. Permittee and Contractor each binds itself and its
successors, assigns and legal representatives to the other party hereto and to
the successors, assigns and legal representatives of such other party with
respect to all covenants, agreements and obligations contained in the Contract
Documents.
C. The parties hereto agree to cooperate fully with each other
in preparing, filing, prosecuting, advocating grant, and taking any other
actions necessary with respect to any applications or actions which are or may
be necessary to obtain the consent of the FCC or of any other governmental
instrumentality, or any third party to, or are or may be necessary or helpful in
order to accomplish the transactions contemplated by this Agreement.
D. All notices, demands and requests required or permitted to
be given under the provisions of this Agreement shall be (i) in writing, (ii)
delivered by personal delivery or sent by commercial delivery service or
certified mail, return receipt requested, (iii) deemed to have been given on the
date of personal delivery, the date set forth in the records of the delivery
service or on the return receipt, and (iv) addressed as follows::
If to Permittee: Channel 29 of Charleston, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to Contractor: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ Communications of Charleston-29, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
or to any such other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
12.D.
E. No action or failure to act by Permittee or Contractor
shall constitute a waiver of any right or duty afforded any of them under this
Agreement, nor shall any such
50
- 8 -
action or failure to act constitute an approval of or acquiescence in any breach
thereunder, except as may be specifically agreed in writing.
F. If the Contract Documents, laws, ordinances, rules,
regulations or orders or any public authority having jurisdiction require any
portion of the Work to be inspected, tested or approved, Contractor shall give
Permittee timely notice of its readiness so Permittee may observe such
inspection, testing or approval.
G. Licensee's and Contractor's respective obligations
hereunder are unique and valuable and not readily subject to compensation by
money damages alone. Accordingly, in the event either party should breach its
obligations under this Agreement, the other party shall be entitled to an order
directing specific performance from a court of competent jurisdiction, in
addition to all other remedies at law or in equity.
SECTION 13. COUNTERPARTS. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures on all counterparts were
upon the same instrument.
SECTION 14. GUARANTY. ▇▇▇▇▇▇ Communications Corporation hereby
guarantees the full, complete and timely performance by Contractor of its
obligations under this Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
51
IN WITNESS WHEREOF, Permittee and Contractor have executed this
Construction Agreement as of the date first above written.
▇▇▇▇▇▇ COMMUNICATIONS OF
CHARLESTON-29, INC.
By:
---------------------------------------
Name:
Title:
CHANNEL 29 OF CHARLESTON, INC.
By:
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
FOR PURPOSES OF SECTION 14 ONLY:
▇▇▇▇▇▇ COMMUNICATIONS
CORPORATION
By:
---------------------------------------
Name:
Title:
52
SCHEDULE A
BUDGET
▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ WV
AUTOMATED ???
1 TRANSMITTER BUILDING ESTIMATE $286,000
1 LAND ESTIMATE $0
1 500 FT TOWER ESTIMATE $403,822
1 TOWER FOUNDATIONS ESTIMATE $200,000
1 EXCAVATION ESTIMATE $50,000
Sub-Total $939,822
Corp 1 TRANSMITTER COMARK 80 KW 10T $820,000 $820,000
Corp 1 VOLTAGE REGULATOR $20,000 $20,000
1 SURGE PROTECTOR $9,000 $9,000
Corp 1 DIELECTRIC 6 1/8 INCH COAX $89,120 $89,120
Corp 1 DIELECTRIC SIDE MOUNT ANTENNA WITH RADOM $132,000 $132,000
Corp 1 SHIPPING $12,000 $12,000
Corp 1 ▇▇▇▇▇▇▇ MRC2 REMOTE CONTROL $31,460 $31,460
600 400 GALLON OF DISTILLED WATER FOR COOLANT $8 $4,800
1 GLYCOL & DISPOSAL $2,000 $2,000
Corp 1 ▇▇▇▇▇ 6182A-U75 OPTIMOD $5,812 $5,812
Corp 1 ▇▇▇▇▇ 8185A STEREO GENERATOR $6,621 $6,621
1 FIRST AIR & SAFETY DEVICES $1,000 $1,000
1 MISC. HAND & POWER TOOLS $2,000 $2,000
1 MISC. SUPPLIES, HARDWARE AND WIRING $5,000 $5,000
Sub-Total $920,822
Corp 1 MRC 7 GIG 1 HOP HOT STANDBY MICROWAVE $96,000 $96,000
1 INSTALLATION $20,000 $20,000
Sub-Total $116,000
Corp 3 ADC CC-1074G 2' VIDEO PATCH CORD $23 $68
Corp 4 ADC PJ-82 2' AUDIO PATCH CORD $23 $92
Corp 3 ADC PPA3-18MK11-NS AUDIO PRO-PATCH $634 $1,802
Corp 2 ADC PPI-2224RS-75N VIDEO PATCH PANEL $983 $1,926
Corp 1 BELAR TVM-100 MODULATION MONITOR $5,337 $5,337
Corp 1 BELAR TVM-230 DIGITAL BTSC STERIO MONITOR/ANALYZER $6,573 $6,673
Corp 1 CHYRON/TFT EAS 911T/MASTER CG PACKAGE $9,239 $9,239
Corp 1 CLEAR-COM 2-CHANNEL STEREO MONITOR SPEAKER $531 $531
Corp 1 CROWN D-70 SERIES AMPLIFIER $421 $421
Corp 0 DNF ST-60-S/DRN DUAL INTERFACE FOR UVW-1800 $882 $0
Corp 1 DNF ST-100-S REMOTE CONTROL $750 $750
Corp 0 DNF 1X8 RS-422 SWITCHER $838 $0
Corp 0 DNF SMARTER SWITCHER OPTION $132 $0
Corp 0 DNF CUE OPTION $132 $0
Corp 2 DORROUGH 40-A2 VU METER $427 $854
Corp 1 DORROUGH 40-D1 DUAL RACKMOUNT FOR 40-A $40 $40
Corp 1 DPS 2200-2S DUAL CHANNEL MICROSYNCH RACK SYSTEM $2,749 $2,749
Corp 1 DPS DPS-235 SINGLE CHANNEL TBC $1,570 $1,570
Corp 0 ESE ES-161AP 0.55" DISPLAY/RACK MOUNT $248 $0
Corp 1 ESE ES-185 GPS MASTER CLOCK WITH SMPTE TIME CODE OUT $2,383 $2,383
Corp 1 ESE ES-993AP 2.2" DISPLAY/RACK MOUNT $597 $597
Corp 1 GRASS VALLEY 7510N PROC AMP $1,664 $1,664
Corp ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇ ▇▇▇ ▇▇▇▇▇ $754 $754
Corp 2 JBL CONTROL 1 MONITOR SPEAKER $98 $197
Page 1 8/25/97
54
Corp ▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇-▇▇▇ ▇▇▇▇ MOTION LOGO GENERATOR $7,187 $7,187
Corp 0 MATTHEY NV-180 SWITCHABLE DELAY LINE WITH TRIM $336 $0
Corp 1 ▇▇▇▇▇ 8200ST STEREO COMPRESSOR/LIMITER $1,400 $1,400
Corp 2 SONY MB-5028 RACK FRAME FOR PVM 1354Q $154 $308
Corp 1 SONY PAC-8041Q DUAL 8" COLOR MONITOR W/RACKMOUNT $2,006 $2,006
Corp 2 SONY PVM-1354Q MONITOR $1,067 $2,135
Corp ▇ ▇▇▇▇ ▇▇▇-▇▇▇ ▇" ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ MONITOR $1,618 $3,238
Corp 3 SONY RMM-130 UVW SERIES RACKMOUNT $167 $472
Corp 3 SONY UVR-60 REMOTE CONTROL FOR TBC $634 $1,801
Corp 3 SONY UVW-1800 EDITING BETACAM SP VCR $8,300 $24,900
Corp 4 STANTRON RACK ASSEMBLIES $782 $3,170
Corp 4 STANTRON CONSOLE ASSEMBLIES AND TABLE $1,528 $8,110
Corp 1 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇-▇▇-▇▇▇▇ RACK ADAPTER $230 $230
Corp 1 TEKTRONIX 1700F05 BLANK PANEL FOR 1700F05 $55 $55
Corp 1 TEKTRONIX 1780R VIDEO TEST MEASUREMENT SET $10,130 $10,130
Corp 1 TEKTRONIX 760A STEREO AUDIO MONITOR $2,303 $2,303
Corp 1 TEKTRONIX ECO-170A SYNC GENERATOR CHANGE-OVER UNIT $2,303 $2,303
Corp 1 TEKTRONIX SPG-170A NTSC SYNC GENERATOR $3,202 $3,202
Corp 1 TEKTRONIX SPG-170A OPTION 01 COLOR BAR PLUS AUDIO TONE $921 $921
Corp 1 TEKTRONIX TSG-170A NTSC TEST GENERATOR $4,837 $4,837
Corp 1 TEKTRONIX TSG-170A OPTION 01 COLOR BAR PLUS AUDIO TONE $921 $921
Corp 1 TEKTRONIX TVGF11A RACK ASSEMBLY FOR VITS 100 $92 $92
Corp 1 TEKTRONIX VITS-100 $2,211 $2,211
Corp 0 UTAH PS-18 REDUNDANT POWER SUPPLY/MC-501 $600 $0
Corp 0 UTAH PS-50 REDUNDANT POWER SUPPLY/SPS-8 $489 $0
Corp 8 UTAH ADA-4X28 AUDIO DA $280 $2,240
Corp 1 UTAH AVS2-B VAA-60/10 10X10 VIDEO/STEREO AUDIO ROUTER $10,701 $10,701
Corp 0 UTAH BPS-8S 8X1 BYPASS SWITCHER $2,888 $0
Corp 1 UTAH CS-1 REDUNDANT POWER SUPPLY/AVS-2 $641 $641
Corp 1 UTAH OSP-16160/4 CONTROL PANEL $1,500 $1,500
Corp 1 UTAH CSP-40/4 CONTROL PANEL $750 $750
Corp 0 UTAH MC-601C-SLM MCR SWITCHER (20 INPUTS) WITH MG0-500 $18,806 $0
Corp 2 UTAH PS-50BA AUDIO POWER SUPPLY $304 $608
Corp 2 UTAH PS-50BV VIDEO POWER SUPPLY $304 $608
Corp 2 UTAH RF50B RACK FRAME $384 $768
Corp 1 UTAH SC-1 REDUNDANT CONTROL/MEMORY CARD/AVS-2 $641 $641
Corp 8 UTAH VDA-4X25 VIDEO DA $324 $2,592
Corp 1 VIDEOTEK DM-154 HIGH PERFORMANCE TV DEMODULATOR $4,209 $4,209
Corp 3 WKHIRLWIND AUDIO MIXERS $262 $755
Corp 1 TEKTRONIX PROFILE DISK BASED SYSTEM $82,681 $82,681
Corp 1 LOUTH AUTOMATION SYSTEM $84,875 $84,875
Corp 1 MAGNI WVM-720 $5,110 $5,110
Sub-Total $285,336
Corp 1 SCITEX VSCS-9 VIDEOSPHERE WITH DVSFX EFFECTS $49,386 $49,386
Corp 1 SCITEX VIDEOSPHERE PLATINUM WARRANTY $3,750 $3,750
Corp 1 SONY UVW-1800 TAPE MACHINE $8,300 $8,300
Corp 1 SONY UVR-60 REMOTE CONTROL FOR TBC $534 $534
Corp 1 TEKTRONIX 1740A WFM/VECTORSCOPE $4,141 $4,141
Corp 1 VIDEOTEK PTC-1 1740 CASE $138 $138
Corp 1 ▇▇▇▇▇▇▇▇ E4583 84" WIDE CONSOLE $1,309 $1,309
Corp 1 COMPACT DISK PLAYER $3,000 $3,000
Corp 1 SONY DAT RECORD/PLAYER $3,000 $3,000
Corp 1 TAPE BACKUP $4,500 $4,500
Sub-Total $78,057
Corp 1 K&H PRODUCTS MO8044 MONITOR CASE FOR PVM-8041Q $116 $116
Corp 1 K&H PRODUCTS MOVA500 CASE FOR VA-300 $67 $67
Page 2 8/25/97
55
Corp 1 K&H PRODUCTS PC101 MEDIUM CAPACITY PRODUCTION CASE $153 $153
Corp 1 K&H PRODUCTS PC2 LARGE CAPACITY CASE $261 $261
Corp 1 K&H PRODUCTS SC837AP3 SHOULDER CASE DXC 837A/PVV-3 $238 $238
Corp 1 K&H PRODUCTS TM MUMMY CASE FOR SACHTLER TRIPOD $195 $195
Corp 1 LOWEL TO-98 LIGHT KIT (SOLO KIT) $2,242 $2,242
Corp 1 SENNHEISER ME66 SHORT SHOTGUN MIC $209 $209
Corp 3 SENNHEISER MKE2-60 LAVALIER MIC W/POWER ADAPTOR $445 $1,334
Corp 1 SHURE FP-32A PORTABLE STEREO MIXER $1,345 $1,345
Corp 1 SONY AC-550 AC ADAPTOR $718 $718
Corp 1 SONY BC-1WD BATTERY CHARGER $607 $607
Corp 1 SONY CANON YJ17X9.58KRS 17:1 ZOOM LENS $2,770 $2,770
Corp 1 SONY DXC-D30L CAMERA SYSTEM $12,135 $12,135
Corp 12 SONY NP-18 NICAD BATTERY, 12V, 2.3A/H $93 $1,114
Corp 1 SONY FVM-5041Q 8" PORTABLE COLOR MONITOR $927 $927
Corp 1 SONY PVV-3 BETACAM SP DOCKABLE RECORDER $8,798 $8,798
Corp 1 SONY VA-300 PLAYBACK ADAPTOR $1,966 $1,966
Corp 1 TELEX FMR-150 LAPEL WIRELESS MICROPHONE SYSTEM $739 $739
Corp 1 VINTEN 3D-12M FLUID HEAD/2-STAGE TRIPOD/SPREADER $4,912 $4,912
Sub-Total $40,848
Corp 1 COMTECH 5.0 METER MOTORIZED ANT & CTI EC8 CONTROLLER $22,443 $22,443
Corp 0 COMTECH 5.0 METER FIXED DISH W/C&Ku BAND 4 POLE $8,689 $0
Corp 1 PARACLIPSE 3.8 METER FIXED DISH (4 POLE) FOR XMTR $1,666 $1,666
Corp 2 STANDARD COMMUNICATIONS MT-830BR-PKG SATELITE REC. $3,332 $8,664
Corp 2 SCIENTIFIC ATLANTA MPEG2 PAXNET RECEIVER $1,676 $3,350
Corp 4 CLNB15-G500 16 DEGREE "C" LNB (NOR8120) $391 $1,563
Corp 4 KLNB 8-D500 .8dB "Ku"LNB (NOR4108A) $299 $1,195
Sub-Total $38,882
Corp 4 ADC CC1074G 2' VIDEO PATCH CORD $23 $90
Corp 5 ADO PJ82 2' AUDIO PATCH CORD $23 $138
Corp 1 ADC PPA3-18MK11-NS AUDIO PRO PATCH, NORMALS STRAPPED $834 $834
Corp 1 ADC PPI-2224RS-75N VIDEO PATCH PANEL $983 $983
Corp 1 CROWN D-75 SERIES AMPLIFIER $421 $421
Corp 2 ELECTRO-VOICE SENTRY 100A MONITOR SPEAKER $327 $854
Corp 1 GRASS VALLEY 7510N PROC AMP $1,684 $1,684
Corp ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇ ▇▇▇ ▇▇▇▇▇ $754 $754
Corp 1 SONY MB-502B RACK FRAME FOR PVM-1354Q $154 $154
Corp 1 SONY PVM-1364Q MONITOR $1,067 $1,067
Corp 2 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, LOUVERED BACK DOOR $138 $271
Corp 1 STANTRON H100KITZ, BLACK 10X-32X5/8 BAG OF 100 $22 $22
Corp 2 STANTRON P28L, TOP PANEL, LOUVERED $29 $57
Corp 2 STANTRON PM4051C, 6' PLUGMOLD (12 OUTLET-15A/125V) $88 $178
Corp 2 STANTRON SF2007830, RACK (19"HPS,78"VPS,30"D) $437 $874
Corp 2 STANTRON SS2007830, SIDE PANEL, SQ, 76"VPS,30"D $140 $280
Corp 1 TEKTRONIX 1700F05 SIDE BY SIDE RACK ADAPTOR $230 $230
Corp 1 TEKTRONIX 1700F06 BLANK PANEL $55 $55
Corp 1 TEKTRONIX 1780F05 SHELF FOR TV-1350 $169 $169
Corp 1 TEKTRONIX 1780R VIDEO TEST MEASUREMENT SET $10,130 $10,130
Corp 1 TEKTRONIX 760A STEREO AUDIO MONITOR $2,303 $2,303
Corp 1 TEKTRONIX ZZA931 TV-1350 RACK RAILS $83 $83
Corp 1 TEKTRONIX TV-1350 TV DEMODULATOR $21,145 $21,145
Corp 1 TEKTRONIX 1910 TEST GENERATOR $7,838 $7,838
Corp 2 UTAH ADA-4X2B AUDIO DA $280 $560
Corp 2 UTAH PS-50BA AUDIO POWER SUPPLY $304 $608
Corp 2 UTAH PS-608V VIDEO POWER SUPPLY $304 $608
Corp 2 UTAH RF-50B RACK FRAME $384 $768
Corp 1 UTAH VDA-4X2B VIDEO DA $324 $324
Page 3 8/25/97
56
SCHEDULE B
PLANS AND SPECIFICATIONS
CONSTRUCTION PERMIT
57
[SEAL] United States of America
FEDERAL COMMUNICATIONS COMMISSION
TELEVISION BROADCAST STATION
CONSTRUCTION PERMIT
Authorizing Official:
Official Mailing Address: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------- ---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
WKRP-TV, INC. Chief, TV Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Video Services Division
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Mass Media Bureau
-------------------------
Current Date:
Call Sign: WKRP-TV ???? 1996
This permit expires 3:00 a.m.
local time, 6 months after
grant date specified above.
Permit File No.: BMPCT-891031KI
This Permit Modifies Permit No.: 870121KN
Subject to the provision of the Communications Act of 1934, as amended,
subsequent acts and treaties, and all regulations heretofore or hereafter made
by this Commission, and further subject to the conditions set forth in this
permit, the permittee is hereby authorized to construct the radio transmitting
apparatus herein described. Installation and adjustment of equipment not
specifically set forth herein shall be in accordance with representations
contained in the permittee's application for construction permit except for such
modifications as are presently permitted, without application, by the
Commission's Rules.
This permit shall be automatically forfeited if the station is not ready for
operation within the time specified (date of expiration) or within such further
time as the Commission may allow, unless completion of the station is prevented
by causes not under the control of the permittee. See Sections 73.3598,
73.3599 and 73.3534 of the Commission's Rules.
Equipment and program tests shall be conducted only pursuant to Sections
73.1610 and 73.1620 of the Commission's Rules.
Name of Permittee:
P.S.A., INC.
Station Location:
WV-CHARLESTON
Frequency (MHz): 560.0 - 566.0
FCC Form 352-A October 21, 1985 Page 1
58
Carrier Frequency: (MHz): 561.25 Visual 565.75 Aural
Channel: 029
Hours of Operation: Unlimited
Transmitter location (address or description):
Poco River hnt, fsh, rec Club, inc., grnds ▇▇▇▇▇▇ Co., WV.
Transmitter: Type Accepted. See Sections 73.1660, 73.1665 and 73.1670
of the Commission's Rules.
Antenna type: (direction or non-directional): Directional
Description: DIELECTRIC TFU-33JSM/R-C170
Beam Tilt: .50 Degrees Electrical
Major lobe directions (degrees true): 119.0 261.0
Antenna Coordinates: North Latitude : 38 28 12
West Longitude: 81 46 35
Transmitter output power...............: As required to achieve authorized ERP
Maximum effective radiated power (PEAK): 1580.0 kW
: 32.0 DBK
Height of radiation center above ground...........: 141 Meters
Height of radiation center above mean sea level...: 452 Meters
Height of radiation center above average terrain..: 212 Meters
Antenna structure registration number: none
Overall height of antenna structure above ground
(including obstruction lighting if any)........: 152 Meters
Obstruction marking and lighting specifications for antenna structure:
It is to be expressly understood that the issuance of these specifications is
in no way to be considered as precluding additional or modified marking or
lighting as may hereafter be required under the provisions of Section 303(q) of
the Communications Act of 1934, as amended.
PARAGRAPH 01.0, FCC FORM 715 (OCTOBER 1985):
Antenna structures shall be painted throughout their height with alternate bands
of aviation surface orange and white, terminating with aviation surface orange
bands at both top and bottom. The width of the bands shall be equal and
approximately one-seventh the height of the
FCC Form 352-A October 21, 1985 Page 2
59
structure, provided however, that the bands shall not be more than 100 feet
nor less than 1 and 1 2 feet in width. All towers shall be cleaned and
repainted as often as necessary to maintain good visibility.
PARAGRAPH 03.0, FCC FORM 715 (APRIL 1985):
There shall be installed at the top of the structure one 300 m/m electric code
beacon equipped with two 620- or 700-watt lamps (PS-40, Code Beacon type), both
lamps to burn simultaneously, and equipped with aviation red color filters.
Where a rod or other construction of not more than 20 feet in height and
incapable of supporting this beacon is mounted on top of the structure and it
is determined that this additional construction does not permit unobstructed
visibility of the code beacon from aircraft at any normal angle of approach,
there shall be installed two such beacons positioned so as to insure
unobstructed visibility of at least one of the beacons from aircraft at any
normal angle of approach. The beacons shall be equipped with a flashing
mechanism producing not more than 40 flashes per minute nor less than 12
flashes per minute with a period of darkness equal to approximately one-half of
the luminous period.
PARAGRAPH 04.0, FCC FORM 715 (APRIL 1985):
At approximately one-half of the overall height of the tower one similar
flashing 300 m/m electric code beacon shall be installed in such position
within the tower proper that the structural members will not impair the
visibility of this beacon from aircraft at any normal angle of approach. In
the event this beacon cannot be installed in a manner to insure unobstructed
visibility of it from aircraft at any normal angle of approach, there shall be
installed two such beacons. Each beacon shall be mounted on the outside of the
tower of the prescribed height.
PARAGRAPH 13.0, FCC FORM 715 (APRIL 1985):
On levels at approximately three-fourths and one-fourth of the over-all height
of the tower, at least one 116- or 125-watt lamp (A21/TS) enclosed in an
aviation red obstruction light globe shall be installed on each outside corner
of the structure.
PARAGRAPH 21.0, FCC FORM 715 (APRIL 1985):
All lighting shall burn continuously or shall be controlled by a light
sensitive devise adjusted so that the lights will be turned on at a north sky
light intensity level of about 35 foot candles and turned off at a north sky
light intensity level of about 58 foot candles.
PARAGRAPH 22.0, FCC FORM 715 (APRIL 1985):
During construction of an antenna structure, for which obstruction lighting is
required, at least two 116- or 125-watt lamps (A21/TS) enclosed in aviation red
obstruction light globes, shall be installed at the uppermost point of the
structure. In addition, as the height of the structure exceeds each level at
which permanent obstruction lights will be required, two similar lights shall
be displayed nightly from sunset to sunrise until the permanent obstruction
lights have been installed and placed in operation, and shall be positioned so
as to insure unobstructed visibility of at least one of the lights at any
normal angle of approach. In lieu of the above temporary warning
FCC Form 352-A October 21, 1985 Page 3
60
lights, the permanent obstruction lighting fixtures may be installed and
operated at each required level as each such level is exceeded in height during
construction.
Special operating conditions or restrictions:
1. Grant of this authorization is conditioned on the outcome of the digital
television (DTV, rule making proceeding in MM Docket No. 87-268. To the
extent that the station's Grade B contour or potential for causing
interference is extended into new areas by this authorization, the
Commission may require the facilities authorized herein to be reduced or
modified.
*** END OF AUTHORIZATION ***
FCC Form 352-A October 21, 1985 Page 4
61
SCHEDULE C
LEASE AGREEMENT
62
SCHEDULE C
--------------------------------------------------------------------------------
FACILITY
LEASE AGREEMENT
BY AND BETWEEN
CHANNEL 29 OF CHARLESTON, INC.
AND
▇▇▇▇▇▇ COMMUNICATIONS OF
CHARLESTON-29, INC.
FOR
TELEVISION STATION WKRP-TV
CHARLESTON, WEST VIRGINIA
* * *
__________ __, 199_
--------------------------------------------------------------------------------
63
TABLE OF CONTENTS
Page
----
SECTION 1. TERM............................................................................................... 1
(a) Initial and Renewal Term................................................................... 1
(b) Holding Over............................................................................... 2
(c) Automatic Termination...................................................................... 2
SECTION 2. RENT AND TAXES..................................................................................... 2
(a) Rent for Initial and Renewal Terms......................................................... 2
(b) Security Deposit........................................................................... 3
(c) Taxes...................................................................................... 3
(d) Payment.................................................................................... 3
SECTION 3. USE OF ASSETS...................................................................................... 3
SECTION 4. UTILITIES.......................................................................................... 4
SECTION 5. ALTERATIONS........................................................................................ 4
SECTION 6. MAINTENANCE AND REPAIRS............................................................................ 5
SECTION 7. INDEMNITY AND INDEMNITY INSURANCE.................................................................. 6
SECTION 8. ASSIGNMENT......................................................................................... 6
SECTION 9. CONDEMNATION....................................................................................... 6
SECTION 10. INTERFERENCE AND RF RADIATION..................................................................... 7
(a) General.................................................................................... 7
(b) Interference to Lessee..................................................................... 7
(c) Interference Defined....................................................................... 8
(d) Dispute as to Interference................................................................. 8
(e) RF Radiation............................................................................... 8
SECTION 11. FORCE MAJEURE..................................................................................... 8
SECTION 12. MECHANICS' LIENS.................................................................................. 8
SECTION 13. LESSOR'S LIEN..................................................................................... 9
SECTION 14. QUIET ENJOYMENT................................................................................... 9
64
Page
----
SECTION 15. DEFAULT........................................................................................... 9
SECTION 16. SURRENDER OF LEASED FACILITIES.................................................................... 9
SECTION 17. NOTICES........................................................................................... 10
SECTION 18. PROPERTY INSURANCE................................................................................ 10
SECTION 19. TAXES............................................................................................. 11
SECTION 20. CAPTIONS.......................................................................................... 11
SECTION 21. COVENANTS TO BIND AND BENEFIT RESPECTIVE PARTIES.................................................. 11
SECTION 22. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS......................................................................................... 11
SECTION 23. COUNTERPARTS...................................................................................... 11
SECTION 24. ATTORNEYS FEES.................................................................................... 11
SECTION 25. MISCELLANEOUS..................................................................................... 11
SECTION 26. ENTIRE AGREEMENT.................................................................................. 12
SECTION 27. WAIVER OF JURY TRIAL.............................................................................. 12
(ii)
65
SCHEDULE C
FACILITY
LEASE AGREEMENT
THIS FACILITY LEASE is made and entered into as of this __________ day
of ________, ____, by and between ▇▇▇▇▇▇ COMMUNICATIONS OF CHARLESTON-29, INC.,
a Florida corporation (hereinafter referred to as "Lessor"), and CHANNEL 29 OF
CHARLESTON, INC., a Delaware corporation (hereinafter referred to as "Lessee").
STATEMENT OF FACTS
A. Lessor, Lessee, Mountaineer Broadcasting Corp. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
have entered into a Stock Purchase Agreement dated as of September 2, 1997
("Purchase Agreement").
B. Pursuant to the Purchase Agreement, Lessor and Lessee have entered
into a Construction Agreement, dated as of _______, 199_, which provides that
Lessor and Lessee shall enter into a Lease Agreement pursuant to which Lessor
shall lease to Lessee certain premises and assets used or useful in the
operation of new television station WKRP-TV, Channel 29, Charleston, West
Virginia (the "Station").
▇. ▇▇▇▇▇▇ and Lessee desire to set forth herein the terms and
conditions of such Lease.
NOW, THEREFORE, in consideration of the terms and conditions set forth
in this Lease, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. TERM.
(a) Initial and Renewal Term. Lessee shall have the right to
use the premises and assets described in Attachment A hereto (the "Leased
Facilities") for an Initial Term commencing on the date hereof (the
"Commencement Date") and expiring at 12:00 Midnight on a date which is five
years from the date hereof (the "Initial Term"), unless this Lease is sooner
terminated as hereinafter provided. This Lease may be renewed for one additional
one-year term (the "Renewal Term"), unless at least 90 days prior to the
expiration of the Initial Term Lessor or Lessee shall have provided written
notice to the other stating that it does not intend to renew this Lease for a
Renewal Term. The Initial Term and Renewal Term shall be subject to all of the
terms and conditions set forth in this Lease.
66
- 2 -
(b) Holding Over. If Lessee or anyone claiming under Lessee
shall remain in possession of the Leased Facilities or any part thereof after
the expiration of the Initial Term or the Renewal Term without any agreement in
writing between the Lessor and Lessee with respect thereto, prior to acceptance
of rent by Lessor, the person remaining in possession shall be deemed a holdover
lessee, and, after acceptance of rent by Lessor, the party remaining in
possession of the Leased Facilities shall be deemed a lessee from
month-to-month, subject to the provisions of this Lease. The rental during any
such period shall equal one hundred twenty-five percent (125%) of the rental in
effect immediately preceding such expiration.
(c) Automatic Termination. Notwithstanding anything in this
Lease to the contrary, this Lease shall automatically terminate upon the earlier
to occur of the Second Closing (as defined in the Purchase Agreement) or the
termination of the Purchase Agreement pursuant to its terms, and neither Lessor
nor Lessee shall have any further obligations hereunder, except as provided in
Section 3(b) and except that Lessee shall be responsible for any unpaid Rent.
SECTION 2. RENT AND TAXES.
(a) Rent for Initial and Renewal Terms. Lessee covenants and
agrees to pay Lessor for the use of the Leased Facilities during the Initial
Term and the Renewal Term the amounts set forth below (the "Rent"):
(1) On or before the last day of the month in which the
Commencement Date falls, Lessee shall pay as Rent for each day of the period
beginning on the Commencement Date and ending on the last day of such month the
sum of Seven Hundred Thirty Dollars ($730) per day.
(2) Lessee shall pay to Lessor monthly Rent in the amount
of Twenty-Two Thousand Dollars ($22,000) (the "Base Rent") for the period
beginning with the first full calendar month following the Commencement Date and
continuing until the termination of this Lease.
(3) In the event that this Lease is renewed, the Rent to
be paid by Lessee to Lessor during the Renewal Term shall be equal to the sum of
the Base Rent plus the amount determined by multiplying the Base Rent by the
percentage increase, if any, in the U.S. Department of Labor, Bureau of Labor
Statistics, Revised All-Cities Consumer Price Index for the Charleston, West
Virginia metropolitan area (the "CPI") published immediately prior to the last
day of the Initial Term over the CPI published immediately
67
- 3 -
prior to the Commencement Date. In no event shall the Rent to be paid by Lessee
during the Renewal Term be less than the Base Rent.
(4) If the CPI ceases to exist or is substantially
changed, Lessor shall substitute a similar index. Except as otherwise
specifically provided herein, installments of Rent during the Initial Term and
the Renewal Term shall be paid in advance in United States Dollars (without
prior notice or invoice by Lessor) on or before the first of the month and any
amounts which are payable when invoiced hereunder shall be due within twenty
(20) days after Lessee's receipt of such invoice.
(b) Security Deposit. As security for the timely performance
of Lessee's obligations hereunder, Lessee shall pay to Lessor on the
Commencement Date the amount of One Thousand Dollars ($1,000) which shall be
held by Lessor as a security deposit for the Initial Term and the Renewal Term.
Lessor shall be permitted to apply the security deposit to satisfy Lessee's
obligations hereunder.
(c) Taxes. Lessee shall pay to Lessor, when invoiced, any and
all taxes and assessments levied or assessed on or against the use of the Leased
Facilities and/or the rental payments due hereunder.
(d) Payment. All monthly payments of rent or other sums due
Lessor hereunder shall be sent to or made at the offices of Lessor designated in
Section 16 hereof, or such other place as may be designated by Lessor from time
to time.
SECTION 3. USE OF ASSETS.
(a) Lessee shall have the right to use the Leased Facilities
only for the purpose of constructing and operating the Station and for the
construction and operation of transmit and receive towers, satellite receivers
and associated equipment related to Lessee's operation of the Station.
(b) Lessee accepts the Leased Facilities in their present
condition ("as is") and agrees that it will take good care of the Leased
Facilities, subject to reasonable wear and tear, and that Lessee will return the
Leased Facilities to Lessor in the same condition as said Leased Facilities were
in at the time control was turned over to Lessee, subject to reasonable wear and
tear, and damage done by Lessor, if any. Furthermore, at Lessor's option, Lessee
at its sole cost and expense shall remove or change all alterations made
pursuant to Section 4(a) hereof so as to return said Leased Facilities to Lessor
in said same condition, subject to this subsection 3(b). Lessee agrees that it
will comply with all laws, ordinances, orders,
68
- 4 -
rules, regulations or requirements of all governmental authorities which are
applicable to its use of the Leased Facilities.
(c) Lessee, at its own cost and expense, shall obtain and
maintain in effect any and all permits, licenses and approvals that are or may
be required with respect to the construction or operation of the Station by each
governmental authority having jurisdiction over such construction or operation.
(d) Lessee shall have a right of access to the Studio Building
(i) as may be necessary or appropriate to operate the Station and (ii) at all
reasonable times for inspection, repair, maintenance and replacement of its
equipment, provided, however, that such access and activities shall not
interfere with the use of the Leased Facilities by Lessor or any other tenant of
Lessor, or interrupt or otherwise adversely affect the continued broadcast
operation or equipment of any other tenant of Lessor. Lessor shall have a right
of access to the Leased Facilities at all reasonable times, for examination,
inspection, emergency repair or replacement of Lessee's equipment, provided,
however, that (except as may be provided elsewhere in this Lease) Lessor shall
take reasonable efforts to see that such access and activity by Lessor does not
interfere with the use of the Leased Facilities by Lessee or any other tenant,
or interrupt or otherwise adversely affect the continued broadcast operation of
the Station.
SECTION 4. UTILITIES. Lessee shall be responsible for the furnishing of
heat, water, electricity or other utilities to the Leased Facilities for the
benefit of Lessor.
SECTION 5. ALTERATIONS.
(a) Subject to Lessor's approval, which approval shall not be
unreasonably withheld, Lessee, at its own expense and subject to the provisions
of Subsection 5(b) hereof, may make such alterations, additions, changes and
improvements (herein called "Alterations") to the Leased Facilities as Lessee
may deem necessary or desirable, provided that said Alterations shall not lessen
the value of the Leased Facilities.
(b) Before Lessee may make any Alterations to the Leased
Facilities in accordance with the rights granted by Subsection 5(a) hereof,
Lessee shall submit to Lessor written specifications for such Alterations that
are proposed for Lessor's approval. Lessor, within thirty (30) days after
receipt by it of the written specifications, shall notify Lessee whether it
approves such Alterations. If Lessor fails to notify Lessee in writing within
such thirty (30) day period that it disapproves of such Alterations, Lessee may
proceed to cause the Alterations to be made.
69
- 5 -
SECTION 6. MAINTENANCE AND REPAIRS.
(a) Lessor shall be responsible for the repair and maintenance
of the Leased Facilities. In the event that Lessee reasonably determines that a
repair or replacement is needed and Lessor after written notice does not make
said repair or replacement within a reasonable period of time, Lessee shall
notify Lessor in writing that it considers said repair or replacement necessary
and that it is contemplating making said repair. Lessee may then, at its option,
make such repair or replacement and charge the reasonable cost incurred to
Lessor. It is agreed that nothing in the foregoing shall relieve Lessor from
full performance of its obligations and that the remedy referred to above is in
addition to any other remedy available to Lessee.
(b) If the Leased Facilities shall be partially damaged by
fire or other cause without the fault or neglect of Lessee or its employees,
agents, visitors or licensees, the Lessor shall proceed forthwith to replace or
to repair the Leased Facilities with reasonable diligence at the expense of
Lessor; provided, if the Leased Facilities are to be replaced or repaired and
are unusable in whole or in part following such damage, the rent payable
hereunder during the period in which they are unusable shall be adjusted
equitably; provided further, however, if the Leased Facilities are totally
damaged or rendered wholly unusable by fire or other cause, including, but not
limited to, condemnation, and Lessor shall decide not to replace the same, then,
within ninety (90) days after such fire, casualty or condemnation, Lessor may
give Lessee notice in writing of the decision not to replace, whereupon the
Initial Term or Renewal Term of this Lease shall terminate, Lessee shall
surrender the Leased Facilities to Lessor, and rent shall be abated for the
unexpired portion of this Lease, effective as of the date of said written notice
from Lessor, and Lessor shall have no further obligation or liability to Lessee.
It is agreed that nothing in this Subsection 6(b) shall require Lessor to
replace or to repair any or all Alterations.
(c) Lessor will maintain the Leased Facilities so as to comply
with existing rules and regulation imposed by any governmental authority having
jurisdiction over the construction or operation of the Station, and make any
repairs and modifications reasonably necessary to maintain the Leased Facilities
in good condition and in compliance with good broadcast engineering practices.
In performance of its obligation to maintain and repair the Leased Facilities,
it may be necessary from time to time for Lessor to request that Lessee
temporarily cease its broadcast operation, turn off electrical power and/or make
other adjustments to its equipment and operations. Lessor agrees to schedule
such work, as far as reasonably possible, from 1:00 A.M. to 5:00 A.M., and
Lessor will not cause any temporary interruption of Lessee's broadcast operation
under this provision unless such interruption is required by and consistent with
good engineering practices. Lessee agrees to cooperate with Lessor and to comply
with and honor Lessor's reasonable requests for temporary cessation of
70
- 6 -
its broadcast operation, to turn off electrical power and/or to make other
adjustments to its equipment or operation, as necessary, to allow Lessor to
perform such work in an orderly and timely manner.
SECTION 7. INDEMNITY AND INDEMNITY INSURANCE.
(a) Lessee shall indemnify and hold harmless Lessor from any
and all claims, expenses or liabilities, including reasonable attorneys' fees
and court costs, for injuries to or death of persons, or damage to property
arising out of or in connection with Lessee's use of the Leased Facilities.
Lessee further agrees to defend on behalf of Lessor all legal actions, if any,
arising out of any such claim for such damages. Lessor shall not be liable for
loss or damage sustained by Lessee by reason of business interruption resulting
from any or all acts or omissions of Lessor or violations by Lessor of any or
all terms, covenants or conditions of this Lease.
(b) Lessee agrees that it will, at its expense, obtain and
maintain during the Initial Term or Renewal Term public liability insurance
against claims of injury to or death of persons, or damage to property arising
out of or in connection with Lessee's use of the Leased Facilities, naming
Lessee and Lessor as insured persons. Such public liability insurance shall be
with an insurer that Lessor finds reasonably satisfactory and shall have limits
of not less than One Million Dollars ($1,000,000) with respect to claims of
injury to or death of any number of persons in any one occurrence and not less
than Two Hundred Thousand Dollars ($200,000) for property damage in any one
occurrence. Lessee agrees to name Lessor as a co-insured party on any and all
such public liability insurance policies. Satisfactory evidence of such coverage
shall be submitted by Lessee to Lessor.
SECTION 8. ASSIGNMENT.
(a) Lessee's Right to Assign. Neither this Lease nor any of
the rights, interests or obligations of Lessee hereunder shall be assigned,
encumbered, hypothecated, subleased or otherwise transferred without the prior
written consent of Lessor.
(b) This Lease shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
SECTION 9. CONDEMNATION.
(a) If during the Initial Term or Renewal Term of this Lease
the Leased Facilities or any portion thereof shall be appropriated by any
corporation or authority having the right of eminent domain, or if access to the
Leased Facilities is restricted by action of
71
- 7 -
any such corporation or authority and reasonably comparable access is not made
available to the Leased Facilities, this Lease and all obligations of Lessor and
Lessee hereunder shall cease and terminate as of the date the appropriating
corporation or authority takes possession thereof or materially restricts access
to the Leased Facilities. All obligations of Lessee to pay any rents or other
charges whatsoever under the terms of this Lease shall be apportioned as of such
date in the same manner as if the Lease had expired on such date according to
its terms.
(b) Whenever used herein, the terms "appropriated" or
"appropriation" shall include any voluntary transfer of the Leased Facilities or
any part thereof to any corporation or authority having the right of eminent
domain as a result of a settlement of a threatened or pending appropriation
action.
(c) In the event of the appropriation of the whole or any part
of the Leased Facilities, the amount received as compensation for the
appropriation (including in the case of an appropriation of part of the Leased
Facilities, any amount allowed as damages to the remainder) shall be paid in
full to Lessor, subject, however, to any right of Lessee to receive any
additional or specific award from the appropriating corporation or authority to
which it might be entitled.
(d) In any appropriation of the Leased Facilities, Lessee
shall have the right to prove in the proceeding and to receive any award which
may be for damages to or condemnation of Lessee's movable trade fixtures,
equipment, furniture and furnishings and for moving and relocation expenses.
SECTION 10. INTERFERENCE AND RF RADIATION.
(a) General. Lessee will conduct its activities in accordance
with applicable requirements of the FCC and sound electronic and engineering
practice and will cooperate with Lessor and other tenants and potential tenants
so as to anticipate and prevent interference to the broadcast operations or
equipment of Lessor or any other tenant. If any engineering statement presented
to or by the Lessor confirms that Lessee's broadcast operation, transmission or
other activities on or around any portion of the Leased Facilities are causing,
or are reasonably expected to cause, interference to the broadcast operation,
transmission or other activities of Lessor or any other tenant, Lessee shall, at
its sole expense, promptly correct or modify the conditions causing such
interference.
(b) Interference to Lessee. Upon determination that any other
tenant is causing interference to Lessee's broadcast operation, transmission or
other activities in or around any portion of the Leased Facilities, Lessor will
use its reasonable best efforts to
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modify or correct promptly, or cause such other tenant to modify or correct
promptly, the condition causing such interference.
(c) Interference Defined. As used in this Lease, interference
to a broadcast operation, transmission or other similar activity shall mean a
condition or anticipated condition which constitutes or would constitute
interference within the meaning of the provisions of the recommended practices
of the Electronics Industries Association and the rules and regulations of the
FCC then in effect.
(d) Dispute as to Interference. Any dispute as to whether
interference is being caused or expected to be caused, or as to who is causing
such interference, which remains unresolved for longer than seven (7) calendar
days, shall be submitted to a consulting electronic engineer who is not retained
or otherwise employed by Lessor, Lessee or any other tenant whose antenna is
located on the Tower, and the determination of such consulting electronic
engineer shall be final and binding on all parties. The consulting engineer
shall be jointly selected by Lessor and Lessee.
(e) RF Radiation. Lessee shall, at Lessee's expense, take all
actions required to ensure that Lessee's broadcast operation does not expose
workers or the general public to levels of radio frequency radiation in excess
of the "Radio Frequency Protection Guides" recommended in the American National
Standard Safety Levels with Respect to Human Exposure to Radio Frequency
Electromagnetic Fields, 300 kHz to ▇▇▇ ▇▇▇ (▇▇▇▇ ▇▇▇.▇-▇▇▇▇) issued by the
American National Standards Institute.
SECTION 11. FORCE MAJEURE. Neither Lessor nor Lessee shall be required
to perform any term, condition or covenant in this Lease so long as such
performance is delayed or prevented by force majeure, which shall mean Acts of
God, strikes, lockouts, material or labor restrictions by any governmental
authority, civil riots, floods, and any other cause not reasonably within the
control of Lessor or Lessee and which by the exercise of due diligence Lessor or
Lessee is unable, wholly or in part, to prevent or to overcome; provided,
however, force majeure shall not excuse Lessee from its obligation to pay rent
or other sums hereunder and Lessee shall be required to pay any and all rent and
such other sums as provided by this Lease.
SECTION 12. MECHANICS' LIENS. Lessee shall not suffer or permit any
mechanics' liens to be filed against the Leased Facilities by reason of work,
labor or materials supplied or claimed to have been supplied to Lessee that are
not removed or for which adequate bond has not been provided within thirty (30)
days of such filing. Furthermore, if any such lien at any time shall be filed
against the Leased Facilities, Lessee
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shall proceed with due diligence to cause the same to be discharged of record by
payment, deposit, bond, order of court or otherwise.
SECTION 13. LESSOR'S LIEN. Lessor shall have a first lien upon every
right and interest of Lessee to and in the Leased Facilities for the payment of
rent and all other sums payable by Lessee hereunder and as security for the
performance and observance of the agreements, conditions, and obligations of
this Lease by and between Lessor and Lessee, dated the date hereof, which
agreements, conditions, and obligations are to be performed and observed by
Lessee.
SECTION 14. QUIET ENJOYMENT. Lessor covenants that, upon payment by
Lessee of all rents and the performance by Lessee of all obligations pursuant to
this Lease, Lessee shall and may peaceably and quietly have and enjoy the Leased
Facilities for and during the Initial Term and any Renewal Term of this Lease,
pursuant to the terms hereof, free from any hindrance from any person or persons
whomsoever claiming by, through or under Lessor.
SECTION 15. DEFAULT. If the Lessee defaults in fulfilling any of its
material covenants or obligations hereunder, or if the Lessee does not fully
make all payments of rent when due under this Lease, Lessor at its option may
terminate and end this Lease and recover the Leased Facilities provided that
Lessee has been given written notice by Lessor and that Lessee has not made full
payment of the rent and cured all other such defaults, if any, within fifteen
(15) days following such notice. Furthermore, if Lessee fails to make a payment
of Rent hereunder when due, Lessee shall be liable for and pay to Lessor a late
payment charge at the rate of eighteen percent (18%) per annum, computed from
the date said payment was due until the date said payment is actually made. In
the event of a default hereunder, other than the nonpayment of rent or other
monetary obligation, the Lessor shall have the right to terminate this Lease if
Lessee does not cure such default within thirty (30) days of written notice from
Lessor. In the event of said defaults, in addition to said termination rights,
Lessor shall have all other rights and remedies to which it may be entitled. A
waiver by the Lessor of any breach of this Lease or any terms, conditions or
promises herein contained must be in writing to be effective and shall not be or
construed to be a waiver of any subsequent breach of the same or any other term,
condition or promise herein and the payment by the Lessee and acceptance by the
Lessor of rent hereunder shall not be construed to be a waiver of any breach of
terms or conditions herein except as to the particular installment of rent so
paid and accepted.
SECTION 16. SURRENDER OF LEASED FACILITIES. Lessee, upon the expiration
of the Initial Term or Renewal Term of this Lease or the earlier termination of
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this Lease, shall surrender to Lessor the Leased Facilities in accordance with
the terms and conditions provided for in Subsection 3(b) hereof.
SECTION 17. NOTICES. All notices, demands and requests required or
permitted to be given under the provisions of this Agreement shall be (i) in
writing, delivered by personal delivery, or sent by commercial delivery service
or certified mail, return receipt requested, (ii) deemed to have been given the
date of personal delivery, or the date set forth in the records of the delivery
service or on the return receipt, and (iii) addressed as follows:
If to Lessor: ▇▇▇▇▇▇ Communications of Charleston-29, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
(which shall A Professional Limited Liability Company
not constitute ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
notice) to: ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
If to Lessee: Channel 29 of Charleston, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(which shall ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
not constitute ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
notice) to: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
or to any such other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
16.
SECTION 18. PROPERTY INSURANCE.
(a) Lessor shall, at its expense, obtain and maintain during
the Initial Term and Renewal Term of this Lease, "All Risk", hazard insurance on
the Leased Facilities. Such insurance shall cover at least all risks customarily
insured against in the broadcasting industry, subject to standard deductibles.
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(b) Lessee hereby releases Lessor from and holds Lessor
harmless against any and all claims that Lessee may hereafter have for loss,
theft, disappearance, damage or destruction of the Leased Facilities, regardless
of the cause thereof. Notwithstanding the generality of the foregoing, this
release shall not apply to any grossly negligent, willful or wanton act of the
Lessor, its employees, agents or representatives. In the event that insurance on
the Leased Facilities was in force at the time of such loss, theft,
disappearance, damage or destruction, Lessee agrees to take all necessary action
to make this release effective and binding upon its insurance carriers so that
such carriers specifically waive all right of subrogation, if any, that such
carriers might otherwise have against Lessor and its employees, agents or
contractors.
SECTION 19. TAXES. During the term hereof, Lessor agrees to pay all
personal property taxes assessed against the Leased Facilities within thirty
(30) days of its receipt of a true and correct statement.
SECTION 20. CAPTIONS. The captions or headings of sections in this
Lease are inserted for convenience only and shall not be considered in
construing the provisions hereof.
SECTION 21. COVENANTS TO BIND AND BENEFIT RESPECTIVE PARTIES. This
Lease shall inure to the benefit of and be binding upon the successors and
assigns of Lessor and Lessee.
SECTION 22. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. Any
and all representations, warranties and covenants contained in this Lease shall
survive the execution of the Lease and shall continue in full force and effect
during the Initial Term and any Renewal Term hereof.
SECTION 23. COUNTERPARTS. More than one counterpart of this Lease may
be executed by the parties hereto and each duly executed counterpart shall be
deemed an original.
SECTION 24. ATTORNEYS FEES. In the event an action is brought to
enforce or construe any of the terms or conditions of this Lease, the prevailing
party shall be entitled to reasonable attorneys' fees and costs.
SECTION 25. MISCELLANEOUS.
(a) This Lease shall be governed by the laws of the State of
Florida and may be modified or amended only by a writing, signed by the party
against whom the amendment or modification is sought to be enforced.
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(b) Failure of either party to exercise its rights hereunder
shall not operate as a waiver of the future exercise of such right.
SECTION 26. ENTIRE AGREEMENT. This Lease, including the exhibits
hereto, sets forth the entire understanding of the parties hereto at the time of
execution and delivery hereof with respect to the subject matter hereof.
SECTION 27. WAIVER OF JURY TRIAL. To the extent they may lawfully do
so, the parties hereto irrevocably waive all rights to a trial by jury in any
proceeding hereinafter instituted by or against either party in respect of this
Lease.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first set forth above.
CHANNEL 29 OF CHARLESTON, INC.
By:
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇ COMMUNICATIONS OF CHARLESTON-29, INC.
By:
---------------------------------------
Name:
Title:
78
ATTACHMENT A
Leased Facilities
(1) Leased Premises. The right to occupy the premises to be
used as the studio site for the Station.
(2) STL Antenna. The right to install and utilize associated
auxiliary equipment, earth stations, Studio Transmitter Link Towers,
transmission lines, Studio Transmitter Links, etc.
(3) Access. The right, in common with others, to use the
roadways and parking spaces on the leased premises for ingress and egress.
(4) Equipment. The equipment described on the Attachment
hereto.
All of the space, premises, rights and equipment granted under
this Exhibit A are hereinafter referred to as the "Leased Facilities."
79
SCHEDULE D
BUILDOUT SCHEDULE
80
WKRP Buildout Schedule
-----------------------------------------------------------------------------------------------------------------------------------
Task Name Duration Start End 1997 1998
-----------------------------------------------------------------------------------------------------------------------------------
Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul
-----------------------------------------------------------------------------------------------------------------------------------
WKRP Buildout Schedule 5.06 m 25/Sep/97 05/Mar/98 ----------------------------------
Transmitter site 4.38 m 25/Sep/97 12/Feb/98 ------------------------------
Building Construction 3.23 m 25/Sep/97 07/Jan/98 ------------------------
Permit 2.00 w 25/Sep/97 08/Oct/97 ----
Excavation 2.00 w 09/Oct/97 22/Oct/97 ---
Structure 3.00 m 02/Oct/97 07/Jan/98 -----------------------
Electrical 3.00 w 05/Dec/97 26/Dec/97 -----
Trans. Delivery 3.00 m 25/Sep/97 30/Dec/97 ----------------------
Trans. Install &
Proof 4.00 w 30/Dec/97 29/Jan/98 -------
Terminal & Remote
Control 2.00 w 29/Jan/98 12/Feb/98 -----
Tower 4.05 m 27/Oct/97 05/Mar/98 ---------------------------
Tower Foundations 1.00 m 27/Oct/97 26/Nov/97 --------
Tower Delivery 5.00 d 08/Dec/97 12/Dec/97 --
Tower Erection 45.00 d 15/Dec/97 18/Feb/98 --------------
Antenna Delivery 3.00 d 05/Jan/98 07/Jan/98 --
Antenna Install 2.00 w 20/Feb/98 05/Mar/98 ----
STL Install 5.00 d 20/Feb/98 26/Feb/98 --
Studio 3.38 m 03/Nov/97 20/Feb/98 ------------------------
Studio Renovation 2.00 m 03/Nov/97 07/Jan/98 ----------------
STL Tower Permits &
Install 3.00 m 03/Nov/97 09/Feb/98 ------------------------
MCR Equipment
Delivery 2.00 m 03/Nov/97 07/Jan/98 ----------------
MCR Construction 3.00 w 07/Jan/98 29/Jan/98 ------
MCR Installation 5.00 d 12/Feb/98 20/Feb/98 ---
-----------------------------------------------------------------------------------------------------------------------------------
Printed: 25/Aug/97
Page 1
81
EXHIBIT B
SHAREHOLDERS AGREEMENT
82
--------------------------------------------------------------------------------
SHAREHOLDERS AGREEMENT
BY AND AMONG
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ COMMUNICATIONS
OF CHARLESTON-29, INC.
AND
CHANNEL 29 OF CHARLESTON, INC.
DATED AS OF
___________, 199_
--------------------------------------------------------------------------------
83
SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT (the "Agreement") is made as of the ____
day of _______ 199_, by and among ▇▇▇▇▇▇ COMMUNICATIONS OF CHARLESTON-29, INC.,
a Florida corporation ("▇▇▇▇▇▇"), CHANNEL 29 OF CHARLESTON, INC., a Delaware
corporation (the "Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("WLK") (WLK and ▇▇▇▇▇▇ are
sometimes referred to herein individually as "Shareholder" and collectively as
"Shareholders").
R E C I T A L S
A. The Company holds a construction permit issued by the Federal
Communications Commission ("FCC") for new television station WKRP-TV, Channel
29, Charleston, West Virginia (the "Station").
B. The Company's authorized capital stock consists of one thousand
(1,000) shares of voting common stock, all of which shares are issued and
outstanding (the "Common Stock").
C. WLK holds 510 shares of Common Stock (the "WLK Stock") and, on the
date hereof, WLK has conveyed to ▇▇▇▇▇▇ 490 shares of Common Stock (the "▇▇▇▇▇▇
Stock").
D. The parties hereto desire to set forth certain understandings and
agreements relating to, among other things, the issuance and transfer of the
capital stock of the Company.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
undertakings contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, WLK, ▇▇▇▇▇▇ and the
Company, intending to be legally bound, agree as follows:
ARTICLE I. RESTRICTIONS
Section 1.1 Scope of Agreement. This Agreement shall apply to (i) any
transfer of shares of Common Stock (now owned or hereafter acquired) and any
other shares of capital stock of the Company, whether or not outstanding on the
date hereof, by either Shareholder or any transferee or successor of either
Shareholder, whether by sale, exchange, assignment, disposition, bequest, gift,
pledge, mortgage, hypothecation or otherwise, whether voluntary, involuntary or
by operation of law, whether resulting from death, bankruptcy, insolvency or
otherwise, and (ii) the issuance or transfer by the Company of any shares of
capital stock of the Company, whether or not authorized or outstanding on the
date hereof, or any options, warrants or any form of debt or equity presently or
hereinafter convertible into shares of capital stock of the Company (any and all
such transfers in clauses (i) or (ii) are referred to hereinafter as a
"Transfer").
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Section 1.2 Transfer Restrictions.
(a) Neither WLK, ▇▇▇▇▇▇ nor the Company shall agree to, cause
or permit any Transfer, unless the Transfer complies with the requirements of
Section 1.3 hereof.
(b) The restriction in Section 1.2(a) above shall not apply to
(i) any sale, transfer, assignment or disposition to a person or entity that
controls, is controlled by or is under common control with WLK or ▇▇▇▇▇▇, as the
case may be, (ii) any sale, transfer, assignment or disposition of the ▇▇▇▇▇▇
Stock resulting from the sale or transfer of all of the issued and outstanding
stock of ▇▇▇▇▇▇ or any entity that owns or controls ▇▇▇▇▇▇, (iii) the pledge of
the ▇▇▇▇▇▇ Stock to a lender of ▇▇▇▇▇▇ as collateral security, (iv) any sale of
the WLK Stock to ▇▇▇▇▇▇ pursuant to the Stock Purchase Agreement, dated as of
September 2, 1997, by and among the parties hereto (the "Purchase Agreement"),
or (v) any sale, transfer or disposition of the WLK Stock resulting from the
death of WLK.
(c) No Transfer shall be effective unless a Transfer is made
pursuant to the terms of this Agreement, and the successors or assigns of WLK or
▇▇▇▇▇▇ as a result of any Transfer permitted by the terms of this Agreement
shall have duly executed a document evidencing their agreement to be bound by
the terms of this Agreement.
Section 1.3 Right of First Refusal.
(a) In the event either Shareholder (the "Sale Shareholder")
enters into an agreement (including a letter of intent) contemplating a sale of
all or a portion of its Common Stock (a "Sale"), the Sale Shareholder will
deliver a written notice (the "Sale Notice") to the other Shareholder (the
"Other Shareholder"). The Sale Notice will disclose in reasonable detail the
identity of the prospective transferee(s) and the terms and conditions of the
proposed Sale and will be accompanied by the agreement(s) relating thereto. No
Sale shall be consummated until 30 days after the Sale Notice has been delivered
to the Other Shareholder, unless prior thereto the Other Shareholder shall have
waived in writing its rights under this Section 1.3 (the date of the first to
occur of such events is referred to herein as the "Sale Authorization Date").
(b) The Other Shareholder may elect to purchase all (but not
less than all) of the Sale Shareholder's Common Stock upon the same terms and
conditions as those set forth in the Sale Notice by delivering written notice
(the "Purchase Notice") of such election to the Sale Shareholder within thirty
(30) days after the receipt of the Sale Notice by the Other Shareholder. If the
Other Shareholder exercises its right of first refusal set forth in this
subsection (b), the closing of such purchase and sale shall be in accordance
with Section 1.4. If the Other Shareholder does not exercise its right of first
refusal set forth in this subsection (b), (i) the Sale may be consummated at a
price and on terms no more favorable
85
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to the named transferee(s) of the Common Stock than specified in the Sale Notice
during the 90-day period immediately following the Sale Authorization Date, (ii)
the Other Shareholder will consent to and raise no objections against the Sale,
and (iii) the Other Shareholder will take all reasonably necessary and desirable
actions in connection with the consummation of the Sale. Any Sale which is not
consummated within such 90-day period following the Sale Authorization Date will
again be subject to the provisions of this Section 1.3.
(c) In the event the Other Shareholder exercises its rights
under this Section 1.3, no Sale to the prospective transferee(s) shall be
consummated and the agreement relating thereto shall be terminated.
(d) WLK shall not have the right to become a Sale Shareholder
hereunder while the Purchase Agreement is in full force and effect.
Section 1.4 Closing.
(a) The closing of the purchase and sale of any Common Stock
pursuant to the right of first refusal set forth in Section 1.3 shall take place
at Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, on the date of closing set forth in the Sale Notice or,
if the Sale Notice does not specify a closing date, a date mutually acceptable
to the Shareholders, subject to obtaining any consent
of the FCC that may be required for a Sale.
(b) At the closing, the Sale Shareholder shall deliver to the
Other Shareholder (i) certificates representing the shares of the Common Stock
being transferred, duly endorsed or accompanied by duly executed stock powers,
(ii) a certificate, reasonably acceptable to the Other Shareholder, representing
that the Common Stock being sold is free and clear of all liens, charges,
security interests, rights of first refusal, restrictions and other encumbrances
and that the Sale Shareholder has the absolute right to transfer such Common
Stock, and (iii) such other documentation as reasonably requested by the Other
Shareholder.
(c) At the closing, the Other Shareholder shall wire transfer
immediately available funds to a U.S. bank account designated by the Sale
Shareholder in an amount equal to the price for the shares being sold.
Section 1.5 Legends or Certificates. In order to effectuate this
Agreement, and to avoid any transfer of shares in violation of the Securities
Act of 1933 or of the securities laws of any state, each certificate
representing any share of capital stock of the Company shall bear legends in
substantially the following form:
The Shares represented by this Certificate are subject to an Agreement
dated _______, 1997, entered into in order, inter alia, to restrict the
transferability
86
-4-
of such Shares. Said Agreement is automatically binding upon any person
who acquires the Shares. Any transfer or acquisition in violation of
such Agreement is null and void. A copy of the Agreement is available
for inspection at the principal office of the Company.
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE, AND MAY
NOT BE TRANSFERRED OR SOLD UNLESS SO REGISTERED OR UNLESS AN EXEMPTION
IS AVAILABLE.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of WLK. WLK hereby
represents, warrants and agrees as follows:
(a) WLK is an individual resident in the State of Illinois.
(b) WLK has the power and authority to enter into this
Agreement and carry out its obligations hereunder. The consummation of the
transactions contemplated hereby, and all previous actions taken by WLK with
respect to such transactions, have been duly and validly authorized by WLK. No
other acts or proceedings on the part of WLK are necessary to authorize this
Agreement or the consummation of the transactions contemplated hereby, or any
previous actions taken by WLK with respect to such transactions, and when duly
executed and delivered by the parties hereto, this Agreement will constitute a
valid and legally binding obligation of WLK, enforceable against WLK in
accordance with its terms.
(c) Neither the execution and delivery by WLK of this
Agreement, the consummation by WLK of the transactions contemplated hereby, any
previous actions taken by WLK with respect to such transactions, nor compliance
by WLK with any provision hereof, will violate or conflict with, or result in a
breach of any provision or any of the terms, conditions or provisions of any
contracts, agreements or obligations of WLK or by which WLK is bound.
Section 2.2 Representations and Warranties of the Company. The Company
hereby represents, warrants and agrees as follows:
(a) The Company is duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) The Company has the corporate power and authority to enter
into this Agreement and carry out its obligations hereunder. The consummation of
the transactions
87
-5-
contemplated hereby, and all previous actions taken by the Company with respect
to such transactions, have been duly and validly authorized by the Company's
Board of Directors. No other corporate acts or proceedings on the part of the
Company are necessary to authorize this Agreement or the consummation of the
transactions contemplated hereby, or any previous actions taken by the Company
with respect to such transactions, and when duly executed and delivered by the
parties hereto, this Agreement will constitute a valid and legally binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
(c) Neither the execution and delivery by the Company of this
Agreement, the consummation by the Company of the transactions contemplated
hereby, any previous actions taken by the Company with respect to such
transactions, nor compliance by the Company with any provision hereof, will
violate or conflict with, or result in a breach of any provision or any of the
terms, conditions or provisions of, the Certificate of Incorporation or the
Bylaws of the Company or any other contracts, agreements or obligations of the
Company or by which the Company is bound.
Section 2.3 Representations and Warranties of ▇▇▇▇▇▇. ▇▇▇▇▇▇ hereby
represents, warrants and agrees as follows:
(a) ▇▇▇▇▇▇ is a corporation duly organized, validly existing
and in good standing under the laws of the State of Florida.
(b) ▇▇▇▇▇▇ has the corporate power and authority to enter into
this Agreement and carry out its obligations hereunder. The consummation of the
transactions contemplated hereby, and all previous actions taken by ▇▇▇▇▇▇ with
respect to such transactions, have been duly and validly authorized by ▇▇▇▇▇▇'▇
Board of Directors. No other corporate acts or proceedings on the part of ▇▇▇▇▇▇
are necessary to authorize this Agreement or the consummation of the
transactions contemplated hereby, or any previous actions taken by ▇▇▇▇▇▇ with
respect to such transactions, and when duly executed and delivered by the
parties hereto, this Agreement will constitute a valid and legally binding
obligation of ▇▇▇▇▇▇, enforceable against ▇▇▇▇▇▇ in accordance with its terms.
(c) Neither the execution and delivery by ▇▇▇▇▇▇ of this
Agreement, the consummation by ▇▇▇▇▇▇ of the transactions contemplated hereby,
any previous actions taken by ▇▇▇▇▇▇ with respect to such transactions, nor
compliance by ▇▇▇▇▇▇ with any provision hereof, will violate or conflict with,
or result in a breach of any of the terms, conditions, or provisions of, the
Articles of Incorporation or Bylaws of ▇▇▇▇▇▇ or any contracts, agreements or
obligations of ▇▇▇▇▇▇ or by which ▇▇▇▇▇▇ is bound.
ARTICLE 3. BOARD OF DIRECTORS.
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(a) The Board of Directors of the Company (the "Board") shall
have full discretion and authority with respect to the management, business and
affairs of the Company. The Board shall have full right, power and authority in
the management of the business and affairs of the Company and to do or cause to
be done any and all acts deemed by the Board to be necessary or appropriate to
effectuate the purposes of the Company.
(b) Until such time as WLK no longer holds the WLK Stock, the
Board shall have three members, and WLK shall be entitled to designate two
members of the Board and their replacements or successors, if any, and ▇▇▇▇▇▇
shall be entitled to designate one member of the Board and his replacements or
successors, if any. At such time as ▇▇▇▇▇▇ acquires the WLK Stock, the Board
shall have one member, and ▇▇▇▇▇▇ shall be entitled to designate such member of
the Board and his replacements or successors, if any. Each member of the Board
shall have one vote. A quorum of the Board shall be deemed present for the
purpose of taking any action required to be taken by the Board if there are
present, in person, or by video or audio conferencing, one member of the Board
designated by WLK and the member of the Board designated by ▇▇▇▇▇▇. Any action
taken by the Board shall be valid if approved by a majority of the Board members
present at any meeting of the Board at which a quorum is present.
(c) Regular meetings of the Board regarding any matters shall
be held quarterly. Meetings of the Board may be called by any member of the
Board by giving the other members written notice of the time, date, place and
purpose of the meeting at least five days in advance thereof, or by giving
telephonic notice of the same at least seventy-two hours in advance thereof. Any
Board member participating in a meeting of the Board shall be deemed to have
waived notice of such meeting. Any meeting of the Board shall be held at such
location as the Board may deem appropriate; provided, however, that any
representative of the Board may, at its option, participate by video or audio
conferencing or other comparable communications equipment. Any action required
or permitted to be taken at any meeting of the Board may be taken without a
meeting if a written consent to such action is signed by all members of the
Board and such written consent is filed with the minutes of its proceedings. Any
member of the Board may appoint a proxy to act on his behalf at any meeting,
provided that he delivers notice thereof to the other members of the Board prior
to the commencement of such meeting. The Board may adopt such other procedural
rules with respect to the meetings and other conduct of the Board as it may deem
desirable.
(d) WLK hereby designates ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇
as his initial representatives, and ▇▇▇▇▇▇ hereby designates ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as
its initial representative. Each Shareholder may, at its sole discretion, change
its respective designee or designees to the Board by giving written notice of
such change to the other Shareholder.
89
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ARTICLE 4. OPERATIONAL PROVISIONS. While this Agreement is in effect, the
following actions may be taken with respect to the Company only with the consent
of each Shareholder:
(a) any fundamental change in the nature of the business
conducted by it;
(b) a reorganization of its capital, a reclassification of its
interests or the consolidation or merger of it with another entity;
(c) any sale of all or a substantial portion of its assets;
(d) any transaction with an affiliate (as defined in the rules
under the Securities Act of 1933) of either Shareholder on terms less favorable
to it than the terms available from an unrelated third party;
(e) entering into any contract or agreement or related
contracts or agreements that involve over the term of the contract or agreement
or related contracts or agreements an aggregate expenditure by it of $10,000 or
more;
(f) any individual capital expenditure in excess of $10,000 or
any series of related capital expenditures in excess of $20,000;
(g) incurring any indebtedness for money borrowed in excess of
$10,000 or any increase, modification or extension of any indebtedness for
borrowed money in excess of $10,000;
(h) settling any litigation that requires solely a cash
payment by the Company in excess of $10,000 or settling any litigation that
requires a remedy other than solely a cash payment if that remedy could have a
material adverse effect on the Company or the Station;
(i) guaranteeing any obligation of any person in excess of
$10,000;
(j) doing any act in contravention of this Agreement, the
Delaware Corporation Law or the Certificate of Incorporation or By-laws of the
Company or amending the Certificate of Incorporation or By-laws of the Company;
(k) doing any act that would make it impossible to carry on
its business except upon its dissolution and liquidation;
(l) confessing a judgement against it if the result thereof
could have a material adverse effect on it, the Station or any Shareholder;
90
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(m) using any assets of the Station other than for its
benefit;
(n) approving all capital and operating budgets of the
Company;
(o) hiring and terminating employees of the Company and
establishing and modifying the compensation and benefits provided to such
employees;
(p) entering into time brokerage, affiliation or other
agreements regarding programs to be broadcast on the Station; or
(q) entering into agreements for the sale of advertising or
program time on the Station for consideration other than cash.
ARTICLE 5. TERMINATION. This Agreement shall terminate and all rights and
obligations hereunder shall cease upon the occurrence of any of the following
events:
(a) The consummation of the sale of the WLK Stock to ▇▇▇▇▇▇
pursuant to the Purchase Agreement;
(b) The agreement in writing to terminate this Agreement
executed by each Shareholder; or
(c) The voluntary or involuntary dissolution of the Company.
This Agreement shall terminate with respect to any Shareholder upon the
disposition by such Shareholder of all of its Common Stock in accordance with
the terms of this Agreement; provided, however, that this Agreement shall
survive such termination and continue to be binding upon every Shareholder which
is or will become a party hereto.
ARTICLE 6. MISCELLANEOUS
Section 6.1 Binding Effect. This Agreement shall be binding upon the
parties hereto and their successors and assigns. Each of the parties to this
Agreement shall execute and deliver or cause to be executed and delivered any
and all documents or legal instruments necessary to carry out the provisions
hereof.
Section 6.2 Enforceability. In the event any provision of this
Agreement is found to be unenforceable or invalid, such provisions shall be
severable from this Agreement to the extent that it is a provision which is not
essential and the absence of which would not have prevented the parties from
entering into this Agreement. The unenforceability or invalidity of a provision
which has been performed shall not be grounds for invalidation of this
91
-9-
Agreement under circumstances in which the true controversy between the parties
does not involve such provision.
Section 6.3 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware.
Section 6.4 Modifications. This Agreement may not be modified,
amended, altered or supplemented except by a written agreement or other
instrument signed by the parties hereto.
Section 6.5 Headings. Headings in this Agreement are for convenience
or reference only and shall not affect the construction or interpretation of
this Agreement.
Section 6.6 Entire Agreement. This Agreement represents the only
agreements and understandings between the parties hereto with respect to the
subject matter hereof.
Section 6.7 Attorneys' Fees. In the event any legal action is required
by a party to this Agreement to enforce the provisions hereof against one of the
other parties hereto, the prevailing party shall be entitled to recover its
costs of legal action, including reasonable attorneys' fees, from the other
party involved in such action.
Section 6.8 Specific Performance. Each party hereto acknowledges that
there will be no adequate remedy at law if any other party hereto fails to
perform any of its obligations hereunder and that each party will be irreparably
harmed by any such failure. Accordingly, each party hereto agrees that each
party, in addition to any other remedy to which it may be entitled at law or in
equity, shall be entitled to compel specific performance of the obligations of
the other party or parties under this Agreement.
Section 6.9 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same document.
Section 6.10 Notices. All notices provided by this Agreement shall be
in writing and shall be given by certified mail (return receipt requested), by
overnight delivery, shipment prepaid, or by personal delivery, by one party to
another, addressed to such other party or parties at the applicable address set
forth below:
92
-10-
To the Company or WLK at:
Channel 29 of Charleston, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
To ▇▇▇▇▇▇ at:
▇▇▇▇▇▇ Communications of Charleston-29, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with copy to:
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
A Professional Limited Liability Company
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
or any replacement address of which WLK, the Company or ▇▇▇▇▇▇ gives the other
parties notice under this section.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
93
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IN WITNESS WHEREOF, WLK, ▇▇▇▇▇▇ and the Company have each caused this
Agreement to be executed by a duly authorized officer thereof, as of the date
first above written.
The Company:
CHANNEL 29 OF CHARLESTON, INC.
By:
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
-----------------------------------------
▇▇▇▇▇▇ COMMUNICATIONS OF
CHARLESTON-29, INC.
By:
-----------------------------------------
Name:
Title:
94
SCHEDULE 5.6
ASSETS
Time Brokerage Agreement by and between High Mountain Broadcast
Associates and Mountaineer Broadcasting Corp. (July 9, 1996).
Construction Permit.
Tower Lease.
95
SCHEDULE 5.9
TRANSMITTER SITE
See attached description of tower site in the Construction Permit.
See attached amendments to the Tower Lease.
96
United States of America
FEDERAL COMMUNICATIONS COMMISSION
TELEVISION BROADCAST STATION
CONSTRUCTION PERMIT
Official Mailing Address: Authorizing Official
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------- ----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
WKRP-TV, INC. Chief, TV Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Video Services Division
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Mass Media Bureau
--------------------------
Grant Date:
Call Sign: WKRP-TV This permit expires 3:00 a.m.
local time, 6 months after
grant date specified above.
Permit File No.: BMPCT-891031KI
This Permit Modifies Permit No.: 870121KN
Subject to the provisions of the Communications Act of 1934, as amended,
subsequent acts and treaties, and all regulations heretofore or hereafter made
by this Commission, and further subject to the conditions set forth in this
permit, the permittee is hereby authorized to construct the radio transmitting
apparatus herein described. Installation and adjustment of equipment not
specifically set forth herein shall be in accordance with representations
contained in the permittee's application for construction permit except for
such modifications as are presently permitted, without application, by the
Commission's Rules.
This permit shall be automatically forfeited if the station is not ready for
operation within the time specified (date of expiration) or within such further
time as the Commission may allow, unless completion of the station is prevented
by causes not under the control of the permittee. See Sections 73.3598, 73.3599
and 73.3534 of the Commission's Rules.
Equipment and program tests shall be conducted only pursuant to Sections
73.1610 and 73.1620 of the Commission's Rules.
Name of Permittee:
P.S.A., INC.
Station Location:
WV-CHARLESTON
Frequency (MHz): 560.0 - 566.0
97
Carrier Frequency (MHz): 561.25 Visual 565.75 Aural
Channel: 029
Hours of Operation: Unlimited
Transmitter location (address or description:
Poco River hnt,fsh,rec Club, Inc., grnds ▇▇▇▇▇▇ Co., WV
Transmitter: Type Accepted. See Sections 73.1660, 73.1665 and 73.1670
of the Commission's Rules.
Antenna type: (directional or non-directional): Directional
Description: DIELECTRIC TFU-33JSM/R-C170
Beam Tilt: .50 Degrees Electrical
Major lobe directions (degrees true): 119.0 261.0
Antenna Coordinates: North Latitude: 38 28 12
West Longitude: 81 46 35
Transmitter output power...........: As required to achive authorized ERP
Maximum effective radiated power (PEAK): 1580.0 kw
: 32.0 DBK
Height of radiation center above ground............: 141 Meters
Height of radiation center above mean sea level....: 452 Meters
Height of radiation center above average terrain : 212 Meters
Antenna structure registration number: none
Overall height of antenna structure above ground
(including obstruction lighting if any)..........: 152 Meters
Obstruction marking and lighting specifications for antenna structure:
It is to be expressly understood that the issuance of these specifications is in
no way to be considered as precluding additional or modified marking or
lighting as may hereafter be required under the provisions of Section 303(q) of
the Communications Act of 1934, as amended.
PARAGRAPH 0.10, FCC FORM 715 (OCTOBER 1985):
Antenna structures shall be painted throughout their height with alternate bands
of aviation surface orange and white, terminating with aviation surface orange
bands at both top and bottom. The width of the bands shall be equal and
approximately one-seventh the height of the
98
structure, provided however that the bands shall not be more than 100 feet nor
less than 1 and 1/2 feet in width. All towers shall be cleaned and repainted
as often as necessary to maintain good visibility.
PARAGRAPH 03.0, FCC FOR _15 (APRIL 1985):
The shall be installed at the top of the structure one 300 m/m electric code
beacon equipped with two 620- or 700-watt lamps (PS-40, Code Beacon type), both
lamps to burn simultaneously, and equipped with aviation red color filters.
Where a rod or other construction of not more than 20 feet in height and
incapable of supporting this beacon is mounted on top of the structure and it
is determined that this additional construction does not permit unobstructed
visibility of the code beacon from aircraft at any normal angle of approach,
there shall be installed two such beacons positioned so as to insure
unobstructed visibility of at least one of the beacons from aircraft at any
normal angle of approach. The beacons shall be equipped with a flashing
mechanism producing not more than 40 flashes per minute nor less than 12
flashers per minute with a period of darkness equal to approximately one-half
of the luminous period.
PARAGRAPH 04.0, FCC FORM _15 (APRIL 1985):
At approximately one-half of the overall height of the tower one similar
flashing 300 m/m electric code beacon shall be installed in such position within
the tower proper that the structural members will not impair the visibility of
this beacon from aircraft at any normal angle of approach. In the event this
beacon cannot be installed in a manner to insure unobstructed visibility of it
from aircraft at any normal angle of approach, there shall be installed two
such beacons. Each beacon shall be mounted on the outside of the tower at the
prescribed height.
PARAGRAPH 13.0, FCC FOR 715 (APRIL 1985):
On levels at approximately three-fourths and one-fourth of the over-all height
of the tower, at least one 116- or 125-watt lamp (A21/TS) enclosed in an
aviation red obstruction light globe shall be installed on each outside corner
of the structure.
PARAGRAPH 211.0 FCC FORM 715 (APRIL 1985):
All lighting shall burn continuously or shall be controlled by a light
sensitive device adjusted so that the light will be turned on at a north sky
light intensity level of about 35 foot candles and turned off at a north sky
light intensity level of about 58 foot candles.
PARAGRAPH 22.0, FCC FOR 715 (April)
During construction of an antenna structure, for which obstruction lighting is
required, at least two 116- or 125-watt lamps (A21/TS) enclosed in aviation red
obstruction light globes, shall be installed at the uppermost point of the
structure. In addition, as the height of the structure exceeds each level at
which permanent obstruction lights will be required, two similar lights shall be
displayed nightly from sunset to sunrise until the permanent obstruction lights
have been installed and placed in operation, and shall be positioned so as to
insure unobstructed visibility of at least one of the light at any normal angle
of approach. In lieu of the above temporary warning
FCC Form 352-A October 21, 1985 Page 3
99
lights, the permanent obstruction lighting fixtures may be installed and
operated at each required level as each such level is exceeded in height during
construction.
Special operating conditions or restrictions.
1. Grant of this authorization is conditioned on the outcome of the digital
television (DTV) rule making proceeding in MM Docket No. 87-268. To the
extent that the station's Grade B contour or potential for causing
interference is extended into new areas by this authorization, the
Commission may require the facilities authorized herein to be reduced
or modified.
***END OF AUTHORIZATION***
100
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ - FAX (▇▇▇) ▇▇▇-▇▇▇▇
TO: ▇▇▇ ▇▇▇▇▇▇
FROM: ▇▇▇▇ ▇▇▇▇▇▇
SUBJECT: WKRP-TV, Charleston, West Virginia, Tower Agreement
DATE: August 26, 1997
--------------------------------------------------------------------------------
Here are the points to be considered and presented to the sellers with regard to
their November 5, 1995 Tower Lease Agreement.
1. In the opening "WHEREAS" clause, we need to increase the square footage
of the transmitter building and clarify the transmitter building and
towers' location. I have suggested language on the document.
2. The coordinates given in paragraph 1 need to conform to the
construction permit and I have marked the necessary changes on the
document.
3. My addition on page 2 clarifies that we will have the right to add a
stand-by generator, a receive-only satellite dish and microwave antenna
and tower on the subject property.
4. The last sentence of paragraph 1 on page 2 refers to conditions and
restrictions on the Landlord's deed. We need to see these.
5. In paragraph 3(d), at the top of page 4, I have added the word
"reasonably" to describe the obligations to maintain the tower site's
access road.
6. Note the minor changes to paragraph 7 on page 5.
7. On paragraph 10, page 6, the additional language is to clarify and
limit our responsibility.
101
8. Subparagraph 11(a) on page 6 has already been satisfied and its
continued presence in the Lease may not be necessary.
9. My addition to paragraph 11(b) clarifies the mechanics of the default
notice.
10. My addition to the end of paragraph 12 simply provides that this Lease
may be assigned to Newco without the Landlord's prior consent.
102
THIS AGREEMENT OF LEASE, made this 5 day of November, 1995 by and
between POCA RIVER HUNTING, FISHING & RECREATION CLUB, INC., a corporation under
and by virtue of the code of West Virginia, and hereinafter referred to as
"Hunting Club", and ▇▇▇▇ ▇. ▇▇▇▇▇▇, and any successors to ▇▇▇▇▇▇, as lessee.
W I T N E S S E T H
THAT WHEREAS ▇▇▇▇▇▇ is in the process of becoming the owner and
operator of a television Station in the ▇▇▇▇▇▇/Kanawha County, West Virginia
area and desires to make use of the hereinafter described parcel of land and
access thereto including the unimproved road to the property owned by Hunting
Club for purpose of location of directional antennae, ground systems,
transmitter station and necessary appurtenance including a support building of
1500 square feet or less. The tower and building locations are shown on Exhibit
A attached hereto.
NOW, THEREFORE, in consideration of the promises and terms herein set
forth, the parties hereto stipulate, covenant and agree as follows:
1. Hunting Club does hereby LEASE, LET, and DEMISE unto lessee,
for a term of twenty-five (25) years, beginning on the first day of the month
following receipt by lessee of the necessary approvals from the Federal Aviation
Administration and the Federal Communications Commission to operate said
television station, the surface area of all that certain tract or parcel of
land, together with the rights of ingress and egress to and from the same over
and upon adjoining lands owned by Hunting Club, situate, lying and being an area
of land lying at the top a hill generally described as bearing the coordinates,
N38 degrees, 28'12", West 81 degrees, 46' 36". The area
103
included in this lease is the minimum surface area necessary for lessee to erect
a television transmission tower of 1000 feet together with fencing around the
tower, and support wires for the tower and any other appurtenances necessary to
maintain the tower in compliance with applicable requirements. Fencing around
the tower shall include only a minimum area necessary to comply with applicable
requirements or otherwise ensure the safety of the tower. Need the right to
construct a 1500 square foot transmitter building, standby generator,
receive-only satellite dish & microwave antenna on the Tower. The property
subject to this lease is a part of tracts of land conveyed to Hunting Club's
predecessor, Dupont Hunting, Fishing, and Recreation Club, by ____________, by
deeds recorded in the Office of the Clerk of the County Court of said ▇▇▇▇▇▇
County, in Deed Book 125, at page 199; Deed Book 207, at page 594; and Deed Book
142 at page 568. Hunting Club covenants that it has good title to the demised
premises and the right to lease the same and that Lessee, on paying the rent and
keeping, observing and performing all the other terms, covenants, provisions and
agreements herein contained on the part of Lessee shall, during the term of this
lease, peaceably and quietly have, hold and enjoy the said premises for the full
term of years in this lease.
The rights of Lessee hereunder are subject to any conditions and
restrictions contained in the said deeds.
2. In consideration for the promises and undertakings by the
Hunting Club as described herein, lessee agrees to pay to Hunting Club rent in
the amount of $900.00 per month, payable on the first of every month, at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇. Should lessee fail to pay the
aforesaid monthly rental amount on or before the 5th day after the same is due,
lessee shall
- 2 -
▇▇▇
▇▇▇▇▇ ▇▇▇▇ known Dupont Road as reasonably necessary for lessee's use and
will not damage or diminish the Hunting Club's use of existing roads. Lessee
will make a $100.00 per month contribution into an escrow account up to
$5,000.00 to secure this provision.
4. The said demised premises shall be used and occupied by lessee
for no other purpose than for the installation, operation, maintenance and
removal of antennae, ground systems, transmitter station, telephone, electricity
and transmission lines and other broadcasting equipment and appurtenances
needful for a broadcasting station used in television transmission.
5. This lease shall be renewable at the option of lessee for an
additional period of ten (10) years, provided lessee shall notify Hunting Club
in writing on or before ninety (90) days prior to the scheduled termination of
the lease of lessees desire to so renew. This lease may also be renewable for a
second additional period of ten (10) years provided lessee shall notify Hunting
Club in writing on or before ninety (90) days prior to the scheduled termination
of the first ten (10) year renewal, which second renewal request shall be
subject to the approval of Hunting Club provided that such approval will not be
unreasonably denied.
6. Upon the termination of the term of this lease, or the renewal
thereof, if renewed, lessee shall quit and surrender to Hunting Club the said
demised premises and shall remove all of its property therefrom. Upon failure of
lessee to remove any or all of its property therefrom within a period of ninety
(90) days following the termination of the term, or renewal thereof, such
- 4 -
105
property as shall exist on the premises shal1 become the property of Hunting
Club.
7. Lessee covenants and agrees that it will at all times during
the term of this lease pay for all labor and materials used in improvements made
by lessee on the premises and will save Hunting Club harmless by reason of any
claim in the nature of mechanic's lien claims for services or materials
heretofore performed or delivered upon the demised premises at the instance and
request of Lessee. Lessee covenants and agrees that he will promptly pay all
taxes, ad valorem or others (but not income taxes) which can be or become a lien
against the leased premises, or any improvements thereof, and that he will pay
any taxes which may be levied or assessed against Hunting Club by reason of the
exercise of the rights under this lease. Lessee agrees that it is not the agent
of the Hunting Club with respect to any improvements made on the leased
premises, its travel over other property of the Hunting Club to reach the leased
premises, or of the exercise of any rights under this lease.
8. Lessee covenants that he will accomplish the direction and
installation of improvements upon the leased premises with due care for the use
of the remainder of the property of Hunting Club and of persons thereon with
Hunting Clubs permission, and that it will cause the antennae, ground systems
and other structures and equipment to be installed with due care and in
conformity with Federal Communications Commission and Federal Aviation
Administration rules, laws of the State of West Virginia, and any other
applicable laws. Lessee shall not use chemical defoliants to construct or
maintain its facilities.
- 5 -
106
9. Lessee covenants that during the term of this lease it will
promptly provide and pay for all utilities serving it upon the demised premises.
10. Lessee shall make Hunting Club whole for any damages suffered
resulting from actions of the lessee during the lease on account of any
equipment, building or structure erected or maintained by it upon the leased
premises, or lessee's exercise of its leasehold rights, and lessee assumes all
risks to persons or property due to the exercise by lessee of its leasehold
rights. Lessee shall carry general liability insurance in the amount of at least
three million dollars, and defend Hunting Club against any and all liabilities,
including attorney fees and court costs.
11. Notwithstanding any other provision of this lease. Hunting
Club may at its option terminate this lease in the event that:
b. Payments, once begun, are delinquent for any three month
period after written ??? thereof to lessee. Such events shall be just cause for
Hunting Club at its option to terminate this agreement and declare forfeited to
it all property of lessee situated on the leased premises, and no failure of
Hunting Club to exercise such privilege shall estop it from such exercise
thereafter.
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107
c. Lessee may terminate this lease at any time with sixty
(60) days notice to Hunting Club upon the payment of $10,000.00 and removal of
a11 property from the premises.
12. Lessee shall not sublet or contract with others for the use of
its tower or other facilities which are the subject of this lease agreement
without the written consent of Hunting Club. Consent will not be unreasonably
withheld and lessee will pay Hunting Club 10% of the rental income in additional
to the other requirements herein. Provided, however, that lessee may assign this
lease to Channel 29 of Charleston, Inc., its affiliates and its lenders for
security purposes without lessor's prior consent.
13. This lease shall be governed by the laws of the State of West
Virginia.
14. Any dispute arising under this lease be submitted to final and
binding arbitration.
IN WITNESS WHEREOF, the said POCA RIVER HUNTING, FISHING & RECREATION
CLUB has caused its corporate name to be signed hereunto by ▇▇▇▇▇ ▇▇▇▇▇▇, its
president hereunto duly authorized, and Lessee has caused his name to be signed
hereunto.
POCA RIVER HUNTING, FISHING
RECREATION CLUB, INC.
(Lessor)
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Its President
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
(Lessee)
- 7 -
108
SCHEDULE 6.7(F)
OPINIONS OF COUNSEL TO SELLER AND THE COMPANY
(INITIAL CLOSING)
109
SCHEDULE 6.7(f)
FORM OF OPINION OF COUNSEL TO SELLER
AND THE COMPANY TO BE DELIVERED AT INITIAL CLOSING
___________________, 1997
▇▇▇▇▇▇ Communications of Charleston-29, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Stock Purchase Agreement dated as of August __, 1997 (the
"Purchase Agreement"), by and among Channel 29 of Charleston,
Inc., a Delaware corporation (the "Company"), ▇▇▇▇▇▇
Communications of Charleston-29, Inc., a Florida corporation
("Buyer"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual ("Seller"), and
Mountaineer Broadcasting Corp., a Delaware corporation
("MBC").
Ladies and Gentlemen:
We have acted as counsel for Seller, the Company and MBC in connection
with the transactions contemplated by the Purchase Agreement. This opinion is
being delivered to you pursuant to Section 6.7(f) of the Purchase Agreement. All
capitalized terms not defined in this opinion shall have the meanings set forth
in the Purchase Agreement.
In rendering this opinion, we have reviewed the following documents:
1. the Purchase Agreement;
2. the Construction Agreement;
3. the Time Brokerage Agreement;
4. the Shareholders Agreement;
5. the Tower Lease;
6. the Assignment and Assumption Agreements of Construction
Permit, Tower Lease and Time Brokerage Agreement, each
dated ___________, 1997 between MBC and the Company (the
"Assignments"); and
7. the stock power dated as of the date hereof from Seller to
Buyer for the Initial Shares (the "Stock Power").
110
▇▇▇▇▇▇ Communications of Charleston-29, Inc.
___________________, 1997
Page 2
The documents referred to in clauses 1 through 7 shall be referred to
herein as the "Transaction Documents."
In our examination of documents and records, we have assumed, without
investigation, the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity with originals of all documents submitted to us as telecopied,
certified, photostatic or reproduced copies and the authenticity of all such
documents.
In rendering this opinion, we have also assumed that (i) all parties to
the Transaction Documents (other than Seller, MBC and the Company) are duly
organized, validly existing, and in good standing under the laws of their
respective jurisdictions of organization and have the requisite power to enter
into and perform the Transaction Documents, (ii) the execution and delivery of
the Transaction Documents have been duly authorized by all necessary actions and
proceedings on the part of all parties thereto other than Seller, MBC and the
Company, (iii) the Transaction Documents have been duly executed and delivered
by all parties thereto other than Seller, MBC and the Company, and (iv) the
Transaction Documents constitute legal, valid, binding and enforceable
obligations of all parties thereto other than Seller, MBC and the Company.
With respect to questions of fact, we have relied, without independent
inquiry or verification by us, solely upon (a) the representations and
warranties set forth in the Transaction Documents, (b) representations of Seller
and of officers of the Company and MBC and (c) certificates of public officials.
Our opinion is limited to matters arising under the laws of the State
of New York, the General Corporation Law of the State of Delaware and the United
States of America, including the Communications Act of 1934 and the rules and
regulations of the FCC, insofar as such laws apply. We express no opinion
whatsoever as to any other laws or regulations or as to laws relating to choice
of law or conflicts of law principles. We note that the "governing law"
provision in the Transaction Documents provides that the law of the State of
Florida is to govern. We have not examined the law of the State of Florida. Our
opinion is, therefore, based upon the assumption that the law governing all
provisions of the Transaction Documents is identical to the substantive law of
the State of New York.
Based upon the foregoing, subject to the assumptions, limitations and
exceptions contained herein, we are of the opinion that:
1. Each of the Company and MBC is a corporation duly organized,
validly existing and in good standing under the laws of Delaware and is
qualified to conduct
111
▇▇▇▇▇▇ Communications of Charleston-29, Inc.
__________________, 1997
Page 3
business as a foreign corporation in West Virginia and is in good standing under
the laws of West Virginia. Each of Seller, MBC and the Company has all requisite
power and authority to execute and deliver the Transaction Documents and to
perform and comply with all of the terms, covenants, and conditions to be
performed and complied with by it thereunder.
2. The execution, delivery and performance of the Transaction
Documents by the Company and MBC have been duly and validly authorized by all
necessary corporate actions on the part of the Company and MBC.
3. The Transaction Documents have been duly executed and
delivered by Seller, MBC and the Company and constitute legal, valid and binding
obligations of Seller, MBC and the Company, enforceable against them in
accordance with their terms, except that such enforcement may be subject to
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and to limitations on the availability of equitable remedies.
4. The execution, delivery and performance by Seller, MBC and the
Company of the Transaction Documents and the transactions contemplated thereby
will not violate, conflict with or cause a default under: (a) any provision of
the Certificate of Incorporation and By-Laws of the Company and MBC; (b) any
statute, law, regulation or rule or any judgment, decree or order binding upon
Seller, MBC or the Company; or (c) to the best of our knowledge, any contract,
agreement or commitment to which Seller, MBC or the Company is a party or by
which it is bound.
5. To our knowledge, there is no judgment, award, order, writ,
injunction, arbitration decision or decree materially and adversely affecting
the conduct of the business of the Station, or any litigation, proceeding or
investigation pending or threatened against the Company or MBC, except as
specifically identified in Attachment A hereto and except for proceedings of
general applicability to the broadcast industry.
6. Based on our review of information publicly available at the
FCC and our internal files and records and inquiry to Seller and officers of the
Company and MBC, (a) the Company is the holder of the Construction Permit, (b)
the Construction Permit is in full force and effect, and (c) the Construction
Permit is not subject to any condition or requirement, other than conditions or
requirements that appear on the face of the Construction Permit or pertain under
generally applicable rules or policies of the FCC.
7. The Pro Forma FCC Consent has been obtained, is in full force
and effect and no requests have been filed for administrative or judicial
review, reconsideration, anneal or stay of the Pro Forma FCC Consent.
112
▇▇▇▇▇▇ Communications of Charleston-29, Inc.
____________________, 1997
Page 4
8. Pursuant to the Assignments, the Company has been assigned all
of the rights and the Company has assumed all of the obligations of the "Lessee"
under the Tower Lease and the "Permittee" under the Time Brokerage Agreement.
9. Based on a review of the minute books and stock ledger of the
Company, the authorized capital stock of the Company consists of 1,000 shares of
voting common stock, all of which are issued and outstanding. All such shares
have been validly issued and are fully paid and nonassessable. Upon delivery to
Buyer of the stock certificate representing the Initial Shares, the Stock Power
is in form sufficient to convey good and marketable title to Buyer to the
Initial Shares.
The information set forth herein is as of the date hereof. We assume no
obligation to advise you of changes which may thereafter may be brought to our
attention. Our opinions are based on statutory and judicial decisions in effect
at the date hereof, and we do not opine with respect to any law, regulation,
rule or governmental policy which may be enacted or adopted after the date
hereof, nor assume any responsibility to advise you of future changes in our
opinions.
This letter is solely for your information in connection with the
consummation of the transactions contemplated by the Transaction Documents and
is not to be quoted in whole or in part or otherwise referred to in any of your
financial statements or public releases, nor is it to be filed with any
governmental agency or other person without the prior written consent of a
partner of this firm.
Very truly yours,
[ ]
By:
--------------------------------
, Partner
---------------
113
SCHEDULE 7.3(D)
OPINION OF COUNSEL TO BUYER
(INITIAL CLOSING)
114
Schedule 7.3(d)
Form of Buyer's Opinion
To Be Delivered at Initial Closing
, 1997
----------------------
Channel 29 of Charleston, Inc.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Stock Purchase Agreement dated as of August _, 1997 (the "Purchase
Agreement"), by and among Channel 29 of Charleston, Inc., a Delaware
corporation (the "Company"), ▇▇▇▇▇▇ Communications of Charleston-29,
Inc., a Florida corporation ("Buyer"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an
individual ("Seller"), and Mountaineer Broadcasting Corp., a Delaware
corporation ("MBC").
Dear Ladies and Gentlemen:
We have acted as special counsel for Buyer in connection with the
transactions contemplated by the Purchase Agreement. This opinion is being
delivered to you pursuant to Section 7.3(d) of the Purchase Agreement. All
capitalized terms not defined in this opinion shall have the meanings set forth
in the Purchase Agreement.
In rendering this opinion, we have reviewed the following documents:
1. the Purchase Agreement;
2. the Construction Agreement;
3. the Shareholders Agreement;
4. a certificate dated as of ______________ from the Secretary of State
of Florida relating to the good standing of Buyer (the "Florida Good
Standing Certificate");
5. a certificate dated as of ______________ from the Secretary of State
of West Virginia relating to the good standing of Buyer (the "West
Virginia Good Standing Certificate");
6. the Articles of Incorporation and the Bylaws of Buyer, each in the
form certified to us by the Secretary of Buyer to be true and
complete and in effect on the date of this opinion; and
115
Channel 29 of Charleston, Inc.
▇▇▇▇▇▇▇ L, ▇▇▇▇▇▇
Page 2
7. resolutions of the Board of Directors of Buyer certified to us by the
Secretary of Buyer to be true and complete, to have been duly adopted
by the Board of Directors of Buyer, and to be in full force and
effect (without having been modified or rescinded) on the date of
this opinion.
The documents referred to in clauses 1 through 3 shall be referred to
herein as the "Transaction Documents.
In our examination of documents and records, we have assumed, without
investigation, the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity with originals of all documents submitted to us as telecopied,
certified, photostatic or reproduced copies and the authenticity of all such
documents.
In rendering this opinion, we have also assumed that (i) all parties to
the Transaction Documents (other than Buyer) are duly organized, validly
existing, and in good standing under the laws of their respective jurisdictions
of organization and have the requisite power to enter into and perform the
Transaction Documents, (ii) the execution and delivery of the Transaction
Documents have been duly authorized by all necessary action and proceedings on
the part of all parties thereto other than Buyer, (iii) the Transaction
Documents have been duly executed and delivered by all parties thereto other
than Buyer, and (iv) the Transaction Documents constitute legal, valid, binding
and enforceable obligations of all parties thereto other than Buyer.
With respect to questions of fact, we have relied, without independent
inquiry or verification by us, solely upon (a) the representations and
warranties set forth in the Transaction Documents, (b) representations of
officers of Buyer and (c) certificates of public officials.
This opinion is limited to the law of the District of Columbia, the Florida
Business Corporation Act and the federal law of the United States of America,
insofar as such laws apply (collectively, "Applicable Law"), except that
Applicable Law includes only those laws and regulations that a lawyer
exercising customary professional diligence would reasonably recognize as being
directly applicable to the transactions contemplated by the Transaction
Documents and excludes those set forth in Section 19 of the Legal Opinion
Accord of the American Bar Association Section of Business Law (1991). We do
not purport to be experts in the laws of the State of Florida, nor are we
familiar with judicial interpretations of the laws of Florida, including the
Florida Business Corporation Act. We
116
CHANNEL 29 OF CHARLESTON, INC.
▇▇▇▇▇▇▇ L, ▇▇▇▇▇▇
Page 3
have reviewed the text of the Florida Business Corporation Act and applied it
to the transactions described herein in light of our knowledge of the law of
other jurisdictions. We note that the Transaction Documents by their terms
provide that they are to be governed by the laws of the State of Florida. Our
opinion in paragraph 3 is given as if the Transaction Documents were to be
governed by the laws of the District of Columbia rather than the laws of the
State of Florida or the laws of any other state. We express no opinion as to
conflicts of law rules, or the laws of any states or jurisdictions other than
as specified above. Additional limitations are set forth in the text of the
opinion.
Based upon the foregoing, subject to the assumptions, limitations and
exceptions contained herein, we are of the opinion that:
1. Based solely upon a review of the Florida Good Standing Certificate,
Buyer is a corporation duly organized and in good standing under the laws of
the State of Florida and based solely upon a review of the West Virginia Good
Standing Certificate, Buyer is duly qualified to do business as a foreign
corporation in the State of West Virginia and is in good standing under the
laws of the State of West Virginia.
2. Buyer has full corporate power and authority under the Florida Business
Corporation Act, its Articles of Incorporation and its Bylaws to execute,
deliver and perform the Purchase Agreement and the other Transaction Documents.
Buyer's execution, delivery and performance of the Purchase Agreement and the
other Transaction Documents have been duly and validly authorized by all
necessary corporate action on the part of Buyer under the Florida Business
Corporation Act, its Articles of Incorporation and its Bylaws.
3. The Purchase Agreement and each of the other Transaction Documents have
been duly executed and delivered by Buyer and constitute the valid and binding
obligation of Buyer, enforceable against Buyer in accordance with their
respective terms subject to (i) bankruptcy, insolvency, reorganization,
moratorium and other similar laws now or hereinafter in effect relating to
creditors' rights and (ii) certain equitable defenses and the discretion of the
court before which any proceeding therefor may be brought.
4. The execution, delivery and performance by Buyer of the Purchase
Agreement and the other Transaction Documents (a) do not violate any provisions
of Buyer's Articles of Incorporation or Bylaws and (b) do not violate any
Applicable Law or any judgment, order, injunction or decree which is applicable
to Buyer and known to us.
117
Channel 29 of Charleston, Inc.
▇▇▇▇▇▇▇ L, ▇▇▇▇▇▇
Page 4
The information set forth herein is as of the date hereof. We assume no
obligation to advise you of changes which may hereafter be brought to our
attention. Our opinions are based on statutory provisions and judicial
decisions in effect at the date hereof, and we do not opine with respect to any
law, regulation, rule or governmental policy which may be enacted or adopted
after the date hereof nor assume any responsibility to advise you of future
changes in our opinions.
This letter is solely for your information in connection with the
consummation of the transactions contemplated by the Purchase Agreement and is
not to be quoted in whole or in part or otherwise referred to in any of your
financial statements or public releases, nor is it to be filed with any
governmental agency or other person without the prior written consent of a
member of this firm. This opinion may not be relied upon by any person or
entity other than the person to whom it is addressed.
Very truly yours,
DOW, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC
By:
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Member
118
SCHEDULE 12.5(H)
OPINIONS OF COUNSEL TO SELLER AND THE COMPANY
(SECOND CLOSING)
119
SCHEDULE 12.5(h)
FORM OF OPINION OF COUNSEL TO SELLER
AND THE COMPANY TO BE DELIVERED AT SECOND CLOSING
______________________, ___________
▇▇▇▇▇▇ Communications of Charleston-29, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Stock Purchase Agreement dated as of August __, 1997 (the
"Purchase Agreement"), by and among Channel 29 of Charleston,
Inc., a Delaware corporation (the "Company"), ▇▇▇▇▇▇
Communications of Charleston-29, Inc., a Florida corporation
("Buyer"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual ("Seller"), and
Mountaineer Broadcasting Corp., a Delaware corporation
("MBC").
Ladies and Gentlemen:
We have acted as counsel for Seller and the Company in connection with
the transactions contemplated by the Purchase Agreement. This opinion is being
delivered to you pursuant to Section 12.5(h) of the Purchase Agreement. All
capitalized terms not defined in this opinion shall have the meanings set forth
in the Purchase Agreement.
In rendering this opinion, we have reviewed the following documents:
1. the Purchase Agreement;
2. the stock power dated as of the date hereof from Seller to
Buyer for the Option Shares (the "Stock Power"); and
3. the Tower Lease.
The documents referred to in clauses 1 through 3 shall be referred to
herein as the "Transaction Documents."
In our examination of documents and records, we have assumed, without
investigation, the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity with originals of all
120
▇▇▇▇▇▇ Communications of Charleston-29, Inc.
_________________, _____
Page 2
documents submitted to us as telecopied, certified, photostatic or reproduced
copies and the authenticity of all such documents.
In rendering this opinion, we have also assumed that (i) all parties to
the Transaction Documents (other than Seller and the Company) are duly
organized, validly existing, and in good standing under the laws of their
respective jurisdictions of organization and have the requisite power to enter
into and perform the Transaction Documents, (ii) the execution and delivery of
the Transaction Documents have been duly authorized by all necessary actions and
proceedings on the part of all parties thereto other than Seller and the
Company, (iii) the Transaction Documents have been duly executed and delivered
by all parties thereto other than Seller and the Company, and (iv) the
Transaction Documents constitute legal, valid, binding and enforceable
obligations of all parties thereto other than Seller and the Company.
With respect to questions of fact, we have relied, without independent
inquiry or verification by us, solely upon (a) the representations and
warranties set forth in the Transaction Documents, (b) representations of Seller
and of officers of the Company and (c) certificates of public officials.
Our opinion is limited to matters arising under the laws of the State
of New York, the General Corporation Law of the State of Delaware and the United
States of America, including the Communications Act of 1934 and the rules and
regulations of the FCC, insofar as such laws apply. We express no opinion
whatsoever as to any other laws or regulations or as to laws relating to choice
of law or conflicts of law principles. We note that the "governing law"
provision in the Transaction Documents provides that the law of the State of
Florida is to govern. We have not examined the law of the State of Florida. Our
opinion is, therefore, based upon the assumption that the law governing all
provisions of the Transaction Documents is identical to the substantive law of
the State of New York.
Based upon the foregoing, subject to the assumptions, limitations and
exceptions contained herein, we are of the opinion that:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of Delaware and is qualified to conduct business as
a foreign corporation in West Virginia and is in good standing under the laws of
West Virginia. Each of Seller and the Company has all requisite power and
authority to execute and deliver the Transaction Documents and to perform and
comply with all of the terms, covenants, and conditions to be performed and
complied with by it thereunder.
121
▇▇▇▇▇▇ Communications of Charleston-29, Inc.
_________________, _____
Page 3
2. The execution, delivery and performance of the Transaction Documents
by the Company have been duly and validly authorized by all necessary corporate
actions on the part of the Company.
3. The Transaction Documents have been duly executed and delivered by
Seller and the Company and constitute legal, valid and binding obligations of
Seller and the Company, enforceable against them in accordance with their terms,
except that such enforcement may be subject to bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and to limitations
on the availability of equitable remedies.
4. The execution, delivery and performance by Seller and the Company of
the Transaction Documents and the transactions contemplated thereby will not
violate, conflict with or cause a default under: (a) any provision of the
Company's Certificate of Incorporation and By-Laws; (b) any statute, law,
regulation or rule or any judgment, decree or order binding upon Seller or the
Company; or (c) to the best of our knowledge, any contract, agreement or
commitment to which Seller or the Company is a party or by which it is bound.
5. To our knowledge, there is no judgment, award, order, writ,
injunction, arbitration decision or decree materially and adversely affecting
the conduct of the business of the Station, or any litigation, proceeding or
investigation pending or threatened against the Company, except as specifically
identified in Attachment A hereto and except for proceedings of general
applicability to the broadcast industry.
6. Based on our review of information publicly available at the FCC and
our internal files and records and inquiry to Seller and officers of the
Company, (a) the Company is the holder of the FCC licenses set forth on
Attachment A hereto (the "FCC Licenses"), (b) the FCC Licenses are in full force
and effect, and (c) the FCC Licenses are not subject to any condition or
requirement, other than conditions or requirements that appear on the face of
the FCC Licenses or pertain under generally applicable rules or policies of the
FCC.
7. The FCC Consent has been obtained, is in full force and effect and
no requests have been filed for administrative or judicial review,
reconsideration, appeal or stay of the FCC Consent.
8. Based on a review of the minute books and stock ledger of the
Company, the authorized capital stock of the Company consists of 1,000 shares of
voting common stock, all of which are issued and outstanding. All such shares
have been validly
122
▇▇▇▇▇▇ Communications of Charleston-29, Inc.
_________________, _____
Page 4
issued and are fully paid and nonassessable. Upon delivery to Buyer of the stock
certificate representing the Option Shares, the Stock Power is in form
sufficient to convey good and marketable title to Buyer to the Option Shares.
The information set forth herein is as of the date hereof. We assume no
obligation to advise you of changes which may thereafter may be brought to our
attention. Our opinions are based on statutory and judicial decisions in effect
at the date hereof, and we do not opine with respect to any law, regulation,
rule or governmental policy which may be enacted or adopted after the date
hereof, nor assume any responsibility to advise you of future changes in our
opinions.
This letter is solely for your information in connection with the
consummation of the transactions contemplated by the Transaction Documents and
is not to be quoted in whole or in part or otherwise referred to in any of your
financial statements or public releases, nor is it to be filed with any
governmental agency or other person without the prior written consent of a
partner of this firm.
Very truly yours,
[ ]
By:
----------------------------------------
, Partner
--------------------
123
SCHEDULE 13.5(D)
OPINION OF COUNSEL TO BUYER
(SECOND CLOSING)
124
Schedule 13.5(d)
Form of Buyer's Opinion
To Be Delivered at Second Closing
__________________, ____
Channel 29 of Charleston, Inc.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Stock Purchase Agreement dated as of August
_, 1997 (the "Purchase Agreement"), by and
among Channel 29 of Charleston, Inc., a
Delaware corporation (the "Company"), ▇▇▇▇▇▇
Communications of Charleston-29, Inc., a
Florida corporation ("Buyer"), ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, an individual ("Seller"), and
Mountaineer Broadcasting Corp., a Delaware
corporation ("MBC").
Dear Ladies and Gentlemen:
We have acted as special counsel for Buyer in connection
with the transactions contemplated by the Purchase Agreement. This opinion is
being delivered to you pursuant to Section 13.5(d) of the Purchase Agreement.
All capitalized terms not defined in this opinion shall have the meanings set
forth in the Purchase Agreement.
In rendering this opinion, we have reviewed the following documents:
1. the Purchase Agreement;
2. a certificate dated as of ____________ from
the Secretary of State of Florida relating to
the good standing of Buyer (the "Florida Good
Standing Certificate");
3. a certificate dated as of ____________ from
the Secretary of State of West Virginia
relating to the good standing of Buyer (the
"West Virginia Good Standing Certificate");
4. the Articles of Incorporation and the Bylaws
of Buyer, each in the form certified to us by
the Secretary of Buyer to be true and
complete and in effect on the date of this
opinion; and
5. resolutions of the Board of Directors of
Buyer certified to us by the Secretary of
Buyer to be true and complete, to have been
duly adopted
125
Channel 29 of Charleston, Inc.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Page 2
by the Board of Directors of Buyer, and to be
in full force and effect (without having been
modified or rescinded) on the date of this
opinion.
In our examination of documents and records, we have
assumed, without investigation, the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity with originals of all documents submitted to us as
telecopied, certified, photostatic or reproduced copies and the authenticity of
all such documents.
In rendering this opinion, we have also assumed that (i)
all parties to the Purchase Agreement (other than Buyer) are duly organized,
validly existing, and in good standing under the laws of their respective
jurisdictions of organization and have the requisite power to enter into and
perform the Purchase Agreement, (ii) the execution and delivery of the Purchase
Agreement has been duly authorized by all necessary action and proceedings on
the part of all parties thereto other than Buyer, (iii) the Purchase Agreement
has been duly executed and delivered by all parties thereto other than Buyer,
and (iv) the Purchase Agreement constitutes the legal, valid, binding and
enforceable obligations of all parties thereto other than Buyer.
With respect to questions of fact, we have relied,
without independent inquiry or verification by us, solely upon (a) the
representations and warranties set forth in the Purchase Agreement, (b)
representations of officers of Buyer and (c) certificates of public officials..
This opinion is limited to the law of the District of
Columbia, the Florida Business Corporation Act and the federal law of the
United States of America, insofar as such laws apply (collectively, "Applicable
Law"), except that Applicable Law includes only those laws and regulations that
a lawyer exercising customary professional diligence would reasonably recognize
as being directly applicable to the transactions contemplated by the Purchase
Agreement and excludes those set forth in Section 19 of the Legal Opinion
Accord of the American Bar Association Section of Business Law (1991). We do
not purport to be experts in the laws of the State of Florida, nor are we
familiar with judicial interpretations of the laws of Florida, including the
Florida Business Corporation Act. We have reviewed the text of the Florida
Business Corporation Act and applied it to the transactions described herein in
light of our knowledge of the law of other jurisdictions. We note that the
Purchase Agreement by its terms provides that it is to be governed by the laws
of the State of Florida. Our opinion in paragraph 3 is given as if the Purchase
Agreement were to be governed by the laws of the District of Columbia rather
than the laws of the State of Florida or the laws
126
Channel 29 of Charleston, Inc.
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of any other state. We express no opinion as to conflicts of law rules, or the
laws of any states or jurisdictions other than as specified above. Additional
limitations are set forth in the text of the opinion.
Based upon the foregoing, subject to the assumptions,
limitations and exceptions contained herein, we are of the opinion that:
1. Based solely upon a review of the Florida
Good Standing Certificate, Buyer is a corporation duly organized and in good
standing under the laws of the State of Florida and based solely upon a review
of the West Virginia Good Standing Certificate, Buyer is duly qualified to do
business as a foreign corporation in the State of West Virginia and is in good
standing under the laws of the State of West Virginia.
2. Buyer has full corporate power and authority
under the Florida Business Corporation Act, its Articles of Incorporation and
its Bylaws to execute, deliver and perform the Purchase Agreement. Buyer's
execution, delivery and performance of the Purchase Agreement have been duly
and validly authorized by all necessary corporate action on the part of Buyer
under the Florida Business Corporation Act, its Articles of Incorporation and
its Bylaws.
3. The Purchase Agreement has been duly executed
and delivered by Buyer and constitutes the valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its respective terms
subject to (i) bankruptcy, insolvency, reorganization, moratorium and other
similar laws now or hereinafter in effect relating to creditors' rights and
(ii) certain equitable defenses and the discretion of the court before which
any proceeding therefor may be brought.
4. The execution, delivery and performance by
Buyer of the Purchase Agreement (a) do not violate any provisions of Buyer's
Articles of Incorporation or Bylaws and (b) do not violate any Applicable Law
or any judgment, order, injunction or decree which is applicable to Buyer and
known to us.
The information set forth herein is as of the date
hereof. We assume no obligation to advise you of changes which may hereafter be
brought to our attention. Our opinions are based on statutory provisions and
judicial decisions in effect at the date hereof, and we do not opine with
respect to any law, regulation, rule or governmental policy which may be
enacted or adopted after the date hereof nor assume any responsibility to
advise you of future changes in our opinions.
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This letter is solely for your information in connection
with the consummation of the transactions contemplated by the Purchase
Agreement and is not to be quoted in whole or in part or otherwise referred to
in any of your financial statements or public releases, nor is it to be filed
with any governmental agency or other person without the prior written consent
of a member of this firm. This opinion may not be relied upon by any person or
entity other than the person to whom it is addressed.
Very truly yours,
DOW, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC
By:
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▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Member