STOCK PURCHASE AGREEMENT
between
XXXXX BROADCASTING
CORPORATION
and
SNG HOLDINGS, INC.
the sole stockholder of
XXXXXX TOWER CORPORATION
___________________
August 31, 1995
___________________
Page i
TABLE OF CONTENTS
Page 0.Xxxx and Purchase of
Shares..............................1
1.1 Sale of
Shares...................................1
1.2 Purchase Price and Payment for
Shares............1
1.2.1 Purchase
Price............................1 1.2.2
Payment of Purchase Price.................1
1.3 Delivery of
Shares...............................1
1.4 Escrow
Deposit...................................1
1.5 Closing; Closing
Date............................2
1.6 Transactions at the
Closing......................2
2. Representations and Warranties of
Seller..............3
2.1 Title to
Shares..................................3
2.2 Due Incorporation and
Qualification..............4
2.3 Authority to Execute
Agreements..................4
2.4 Outstanding Capital
Stock........................4
2.5 Options or Other
Rights..........................4
2.6 Governing
Documents..............................4
2.7
Liabilities......................................5
2.8 Compliance with Laws.............................5
2.9 Litigation.......................................5
2.10 Contracts and Other Agreements..................6
2.11 Real Property...................................6
2.12 Insurance.......................................7
2.13 Indebtedness and Guaranties.....................7
2.14 Environmental...................................7
2.15 Personal Property...............................8
2.16 Consents........................................8
2.17 Insolvency Proceedings..........................8
2.18 Partnership Agreement...........................9
2.19 License Agreements..............................9
2.20 Financial Statements............................9
2.21 Taxes..........................................10
2.22 Undisclosed Liabilities........................10
3. Representations and Warranties of Buyer..............10
3.1 Due Incorporation...............................10
3.2 Corporate Power of Buyer........................10
3.3 Purchase for Investment.........................11
4. Covenants and Agreements.............................11
4.1 Expenses........................................11
4.2 Further Assurances..............................11
5. Covenants of Seller..................................11
5.1 Continued Operation of Company..................11
5.2 Third Party Consents............................11
5.3 Encumbrances....................................12
5.4 Assignment of Assets............................12
5.5 Insurance.......................................12
Page ii
6. Conditions Precedent to the Obligation of Buyer to
Close12
6.1 Representations and Covenants...................12
6.2 Governmental Permits and Approvals..............12
6.3 Third Party Consents............................12
6.4 Litigation......................................13
6.5 Delivery of Stock Certificates;
Transfer Taxes.................................13
6.6 Delivery of Charter Documents....................13
6.7 Delivery of Books and Records....................13
6.8 Delivery of Resolutions........................13
6.9 Opinion of Counsel...............................13
6.10 Title Commitment...............................13
6.11 Survey.........................................14
6.12 Inspection of Property.........................14
6.13 Simultaneous Closing...........................14
7. Conditions Precedent to the Obligation of Seller to
Close14
7.1 Representations and Covenants...................14
7.2 Litigation......................................14
7.3 Opinion of Counsel..............................15
7.4 Escrow Agreement................................15
8. Survival of Representations and
Warranties of Seller.................................15
9. Indemnification......................................15
9.1 Indemnification by Seller.......................15
9.2 Indemnification by Buyer........................15
9.3 Notification of Claims..........................16
9.4 Limitation on Indemnification...................17
10. Termination of Agreement.............................17
10.1
Termination....................................17
10.2
Survival.......................................19
11.
Miscellaneous........................................19
11.1
Assignment...................................20
11.2
Brokerage....................................20
11.3 Entire
Agreement.............................20
11.4
Headings.....................................21
11.5 Governing
Law................................21
11.6
Notices......................................21
11.7 Consent to
Jurisdiction......................22
11.8 Public
Announcements.........................22
11.9 No Third Party
Beneficiaries.................22
11.10 Variations in
Pronouns.......................22
11.11
Counterparts.................................22
Page iii
11.12 Exhibits and
Schedules........................23
11.13 Bulldog License
Agreements....................23
Page 1
STOCK PURCHASE AGREEMENT
AGREEMENT dated August 31, 1995, between XXXXX BROADCASTING
CORPORATION, a Pennsylvania corporation (the "Buyer" or "Xxxxx"), and
SNG HOLDINGS, INC., a Delaware corporation (the "Seller"), the sole
holder of all of the issued and outstanding shares of capital stock of
XXXXXX TOWER CORPORATION, a Delaware corporation (the "Company").
The Company has no business other than its undivided one-half
interest in Bulldog Tower Partners, a partnership organized under the
laws of the State of Georgia (the "Partnership"), and its license with
the Partnership (the "License Agreement"). Seller is the beneficial
and record owner of all of the issued and outstanding shares (the
"Shares") of capital stock of the Company. Seller wishes to sell and
Buyer wishes to purchase the Shares upon the terms and subject to the
conditions of this Agreement.
Accordingly, the parties agree as follows:
1. SALE AND PURCHASE OF SHARES.
1.1 SALE OF SHARES. At the Closing (as defined in
Section 1.5), Seller shall sell the Shares to Buyer and Buyer shall
purchase the Shares for the purchase price provided in Section 1.2.
1.2 PURCHASE PRICE AND PAYMENT FOR SHARES.
1.2.1 PURCHASE PRICE. The aggregate purchase
price for the Shares (the "Purchase Price"), is SIX HUNDRED THOUSAND
DOLLARS (US$600,000.00) to be paid in cash at the Closing.
1.2.2 PAYMENT OF PURCHASE PRICE. At the Closing,
the Purchase Price shall be paid by Buyer to Seller in cash by wire
transfer
of immediately available funds in dollars to the bank account
designated by Seller at least two days prior to the Closing.
1.3 DELIVERY OF SHARES. At the Closing, Seller shall
deliver to Buyer stock certificates representing all of the Shares,
duly endorsed in blank or accompanied by stock powers duly executed in
blank, in proper form for transfer.
1.4 ESCROW DEPOSIT. As security for Buyer's failure
to Close (as defined below) and as an inducement for
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Seller to perform its obligations hereunder, Buyer shall deposit with Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx (the "Escrow Agent") in a separate
account maintained for such purpose an amount equal to Twenty Six Thousand
Seven Hundred Seventy Dollars (US$26,770.00) (the "Escrow Deposit"), which
Escrow Deposit shall be held and disbursed by the Escrow Agent, in the
event of
a termination of this Agreement, pursuant to Section 10.1(c), (d) or
(e) herein and, upon Closing, disbursed to Seller in partial
satisfaction of the Purchase Price. Buyer and Seller agree that the
rate of interest in respect of the Escrow Deposit shall be determined
by Buyer and Seller, and further agree that such interest shall accrue,
and be payable, to Buyer.
1.5 CLOSING; CLOSING DATE. The closing of the sale and
purchase of the Shares contemplated hereby (the "Closing") shall take
place at 10:00a.m. on a mutually agreed upon date and place within five
(5) days after the Commission's approval of the Assignment Application
for Xxxxxx Broadcasting Corporation's ("Xxxxxx") Assignment of radio
station WWRD to Xxxxx as contemplated by that certain Asset Purchase
Agreement of even date herewith (the "Jacksonville Agreement"), becomes
a Final Order, or such other time and place as shall be mutually agreed
upon by the parties. The date upon which the Closing occurs is herein
called the "Closing Date."
1.6 TRANSACTIONS AT THE CLOSING.
(a) At the Closing, Seller shall deliver to Buyer
the following:
(i) the certificate contemplated by
Section 6.1;
(ii) a copy of the resolutions of the board
of directors of Seller authorizing the execution, delivery and
performance of this Agreement and the agreements and documents
listed in Section 1.6 of the Disclosure Schedule (the
"Ancillary Agreements"), if any, and the consummation of the
transactions contemplated hereby and thereby, together with a
certificate of the Secretary of Seller, dated as of the
Closing Date, that such resolutions were duly adopted and are
in full force and effect;
(iii)the certificates for the Shares as
described in Section 6.5;
(iv) all books, records and tax returns relating to the
Company;
Page 3
(v) a copy of the resolution of the board
of directors of Xxxxxx Communications Corporation ("OCC")
authorizing the execution, delivery and performance by OCC of
an indemnification agreement contained in Section 9 hereof,
together with a certificate of OCC dated as of the Closing
Date, that such resolutions were duly adopted and are in full
force and effect;
(vi) the opinion of counsel for Seller,
dated the Closing Date, as described in Section 6.9; and
(vii) such other documents and instruments as Buyer may
reasonably request to consummate the transactions
contemplated hereby.
(b) At the Closing, Buyer shall deliver or cause to be
delivered to Seller the following:
(i) the Purchase Price;
(ii) a copy of the resolutions of the board of
directors of Buyer authorizing the execution, delivery and
performance of this Agreement, and the consummation of the
transactions contemplated hereby and thereby, together with a
certificate of the Secretary of Buyer dated as of Closing Date,
that such resolutions were duly adopted and are in full force and
effect;
(iii) the certificate contemplated by Section 7.1;
(iv) the opinion of counsel for Buyer, dated the
Closing Date, as described in Section 7.3; and
(v) such other documents and instruments as Seller
may reasonably request to consummate the transactions contemplated
hereby.
2. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
represents and warrants to Buyer as follows:
2.1 TITLE TO SHARES. Seller owns beneficially and of
record, free and clear of any lien or other encumbrance, the Shares
and, upon delivery of and payment for the Shares as herein provided,
Buyer will acquire good and valid title thereto, free and clear of any
lien or other encumbrance.
Page 4
2.2 DUE INCORPORATION AND QUALIFICATION. Each of
Seller and the Company is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and has the
corporate power and authority to own and operate its assets, properties
and business. The Company is duly qualified or otherwise authorized as
a foreign organization to transact business and is in good standing in
each jurisdiction set forth next to its name in Section 2.2 of the
Disclosure Schedule.
2.3 AUTHORITY TO EXECUTE AGREEMENTS. The execution and
delivery of this Agreement has been duly and validly authorized and
approved by the board of directors of Seller, and Seller has the
corporate power and authority to enter into, execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Seller and is the
valid and binding obligation of Seller enforceable against Seller in
accordance with its terms. None of the execution, delivery or
performance of this Agreement or compliance by Seller with the terms
and provisions hereof will (i) conflict with or violate any provision
of the Certificate of Incorporation or By-laws (or comparable governing
or organizational documents) of Seller or the Company; (ii) violate any
order, judgment, injunction, decree, regulation or ruling of any court
or other governmental authority, to which Seller, the Company or the
Shares is subject; or (iii) violate any material agreement, lease or
contract, written or oral, to which Seller or the Company is subject.
This
Agreement shall constitute the valid and binding obligation of Seller
with respect to the terms hereof.
2.4 OUTSTANDING CAPITAL STOCK. The Company is
authorized to issue 1,000 shares of common stock, par value $0.01 per
share, all of which are issued and outstanding.
2.5 OPTIONS OR OTHER RIGHTS. There is no outstanding
right, subscription, warrant, call, unsatisfied preemptive right,
option or other agreement of any kind to purchase or otherwise to
receive from the Company or Seller any of the outstanding, authorized
but unissued, unauthorized or treasury shares of the capital stock or
any other security of the Company, and there is no outstanding security
of any kind convertible into such capital stock.
2.6 GOVERNING DOCUMENTS. The Company and Seller have
each heretofore delivered to Buyer true and complete copies of the
Certificate of Incorporation (certified by the Secretaries of State or
other appropriate officials of their respective jurisdictions of
Page 5
incorporation) and By-laws or comparable organizational or governing
instruments (certified by the Secretaries thereof) of the Company and
Seller, respectively, as in effect on the date hereof.
2.7 LIABILITIES. Except as set forth in Schedule 2.7
of the Disclosure Schedule, the Company is not subject to any
liabilities either directly or as a partner in the Partnership.
2.8 COMPLIANCE WITH LAWS. Neither Seller, the Company
nor the Partnership has received any notice asserting any non-
compliance with any applicable statute, rule or regulation (federal,
state or local) whether or not related to the business of the Company
which would have any material adverse effect on the business of the
Company or the Partnership. Neither Seller, the Company nor the
Partnership is in default with respect to any judgment, order,
injunction or decree of any court, administrative agency or other
governmental authority or to any other tribunal duly authorized to
resolve disputes in any respect material to the transactions
contemplated hereby. Each of Seller, the Company and the Partnership
is in compliance in all material respects with all laws, permits,
regulations governmental orders and local zoning ordinances (in which
case only to the extent that such local zoning ordinances are directly
applicable to the business or Real Property of the Company or the
Partnership) and, except with respect to local zoning ordinances,
whether or not applicable to the conduct of the business of the Company
or the Partnership and any other business or operations conducted by
Seller.
2.9 LITIGATION. Except as set forth in Section 2.9 of
the Disclosure Schedule, neither Seller, the Company nor the
Partnership is subject to any judgment, award, order, writ, injunction,
arbitration decision or decree, and there is no litigation, proceeding
or investigation pending or, to the best of Seller's knowledge,
threatened against Seller, the Company, or the Partnership in any
federal, state or local court, or before any administrative agency or
arbitrator, or before any other tribunal duly authorized to resolve
disputes, which would reasonably be expected to have any material
adverse effect upon the business, property, assets or condition
(financial or otherwise) of the Company or the Partnership 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. In particular, but without limiting the generality of the
foregoing, except as set forth in Section 2.9 of the Disclosure
Schedule, there are no applications, complaints or proceedings pending
or, to the best of Seller's knowledge, threatened before the
Page 6
Commission or any other governmental organization
with respect to the business or operation of the Company or the
Partnership which would reasonably be expected to have any material
adverse effect upon the Company or the Partnership other than
applications, complaints or proceedings which affect the broadcast
industry generally.
2.10 CONTRACTS AND OTHER AGREEMENTS. Section 2.10 of
the Disclosure Schedule contains a true and complete list of all
contracts including all license agreements entered into by the Company
and the Partnership (the "Contracts"). Seller has delivered to Buyer
true and complete copies of all such Contracts in the possession of
Seller, which are in writing, including any and all amendments and
other modifications to same. All such Contracts are valid, binding and
enforceable by Seller, the Company or the Partnership (as the case may
be) in accordance with their respective terms, except as limited by
laws affecting creditors' rights or equitable principles generally.
Neither Seller nor the Company has notice of any claim by any third
party that any such Contract is unenforceable. Seller, the Company or
the Partnership (as the case may be) has complied in all material
respects with all such Contracts to which it is a party, and neither
Seller, the Company nor the Partnership is in default beyond any
applicable grace periods under any of same, and to the knowledge of
Seller no other contracting party is in material default under any of
same. The execution of this Agreement and the transfer of the Shares
will not materially affect the validity, enforceability and continuity
of any such Contracts.
2.11 REAL PROPERTY.
(a) The land as set forth in Section 2.11(a) of
the Disclosure Schedule (the "Land") together with the improvements
located on the Land constitute the real property owned by the Company
or the Partnership (the "Real Property"). Except as set forth in
Section 2.11(b) of the Disclosure Schedule, neither the Company nor the
Partnership owns any Real Property or holds any options or contractual
obligations to purchase or acquire any Real Property, or is a party to
any lease agreement with respect to any Real Property. All
improvements, structures and fixtures on the Real Property, or subject
to leases, are in good operating condition and repair, and fit for
their current use, subject only to normal wear and tear.
(b) To the knowledge of Seller, there does not
exist any actual or threatened or contemplated
Page 7
condemnation or eminent
domain proceedings that affect any Real Property or any part thereof.
(c) To the knowledge of Seller, there is no
actual or pending imposition of any assessments for public improvements
with respect to any Real Property.
(d) To the knowledge of Seller, no Real Property
or portion thereof has suffered any damage by fire or other casualty
that has not heretofore been completely restored to its original
condition.
2.12 INSURANCE. Section 2.12 of the Disclosure Schedule
contains a true and complete list of all of the insurance policies of
the Company and the Partnership, respectively. All such policies are
in full force and effect and Seller has received no notice of
cancellation with respect thereto.
2.13 INDEBTEDNESS AND GUARANTIES. Section 2.13 of the
Disclosure Schedule sets forth a complete list and description of all
contracts and other agreements relating to indebtedness or guaranties
of
indebtedness by which the Company or the Partnership is bound or to
which any of their respective properties or assets are subject.
2.14 ENVIRONMENTAL. As of the date hereof, neither
Seller, the Company nor the Partnership has unlawfully disposed of any
Hazardous Waste, including any Polychlorinated Biphenyls ("PCBs"), in a
manner which has caused, or could cause, Buyer to incur a material
liability under applicable law in connection therewith; and Seller
warrants that the technical equipment included in the Personal Property
does not contain any Hazardous Waste that is required by law to be
removed, or, if any equipment does contain Hazardous Waste, that such
equipment is stored and maintained in compliance with applicable law.
As of the date hereof, Seller, the Company and the Partnership have
complied in all material respects with all federal, state and local
environmental laws, rules and regulations applicable to the Company and
its operations, including but not limited to the Commission's
guidelines regarding RF radiation. No Hazardous Waste has been
disposed of by Seller, the Company or the Partnership, and, to the best
of Seller's knowledge, no Hazardous Waste has been disposed of by any
other person, on the Real Property in a condition which requires
investigation or remediation pursuant to Environmental Laws. As used
herein, the term "Hazardous Waste" shall mean all materials regulated
by any federal, state, local or foreign laws relating to pollution or
protection of human health or the environment (including,
Page 8
without limitation, ambient air, surface water,
ground water, land surface or subsurface strata). If Seller learns
between the date of this Agreement and the Closing Date that Seller is
in breach of the representation and warranty set forth in this Section
2.14 and such breach is attributable to Seller's action or failure to
act prior to the Commencement Date (as defined in that certain Local
Marketing Agreement, dated August 31, 1995, between Xxxxxx Broadcasting
Corporation and Buyer), Seller shall begin remedial action promptly, if
such is required by Environmental Laws, and shall use reasonable best
efforts to complete such remedial action to the satisfaction of Buyer
before the Closing Date.
2.15 PERSONAL PROPERTY. Section 2.15 of the Disclosure
Schedule contains a true and complete list of the Personal Property.
Except for those assets designated on Section 2.15 of the Disclosure
Schedule as being subject to lease agreements, the Company or the
Partnership owns and has, and will have on the Closing Date, good and
marketable title to such Personal Property, and none of such Personal
Property on the Closing Date will be subject to any security interest,
mortgage, pledge, conditional sales agreement or other lien or
encumbrance. The Personal Property is in all material respects in good
operating condition, ordinary wear and tear excepted, and is available
for immediate use in the conduct of the business of the Company and the
Partnership. The Personal Property includes such items and equipment
necessary to conduct in all material respects the business of the
Company and the Partnership as now conducted.
2.16 CONSENTS. No consent, approval, authorization or
order of, or registration, qualification or filing with, any court,
regulatory authority or other governmental body is required for the
execution, delivery and performance by Seller of this Agreement.
Except as set forth in Section 2.16 of the Disclosure Schedule, no
consent of any other party (including, without limitation, any party to
any lease of Real Property or Contract) is required for the execution,
delivery and performance by Seller of this Agreement or the Escrow
Agreement.
2.17 INSOLVENCY PROCEEDINGS. No insolvency proceedings
of any character including, without limitation, bankruptcy,
receivership, reorganization, composition or arrangement with
creditors, voluntary or involuntary, affecting Seller, the Company or
the Partnership are pending
or, to Seller's knowledge, threatened, and neither Seller, the Company
nor the Partnership has made any assignment for the benefit of
creditors, or taken any action with a view to, or which would
constitute the basis for, the institution of any such insolvency
proceedings.
Page 9
2.18 PARTNERSHIP AGREEMENT. The Partnership
Agreement dated June 10, 1988 between the Company and Suburban Tower
Company constitutes the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with its terms,
subject in the case of enforcement to bankruptcy, insolvency,
reorganization, fraudulent conveyance, transfer, moratorium or other
laws relating to or affecting creditors' rights generally and to
general principles of equity. To the knowledge of Seller, there exists
no obligation of the Company to contribute additional capital
contributions to the Partnership at the date hereof, and the partners
of the Partnership have made no claim on the Company for additional
capital contributions. ExhibitA is a true and complete copy of the
Partnership Agreement.
2.19 LICENSE AGREEMENTS.
(a) The License Agreement dated as of August1,
1989 between the Company and the Partnership (the "Xxxxxx License")
constitutes the legal, valid and binding obligations of the Company and
the Partnership, enforceable against each of the Company and the
Partnership in accordance with its terms, subject in the case of
enforcement to bankruptcy, insolvency, reorganization, fraudulent
conveyance, transfer, moratorium or other laws relating to or affecting
creditors' rights generally and to general principles of equity. The
execution, delivery or performance of this Agreement or compliance by
Seller with the terms and provisions hereof will not violate the terms
of the Xxxxxx License. WWRD and WIOI are successor call letters to
WGIG.
(b) The License Agreement dated as of August 1,
1989 between the Partnership and Suburban Tower Corporation
("Suburban") (the "Suburban License") constitutes the legal, valid and
binding obligations of the Partnership, enforceable against the
Partnership in accordance with its terms, subject in the case of
enforcement to bankruptcy, insolvency, reorganization, fraudulent
conveyance, transfer, moratorium or other laws relating to or affecting
creditors' rights generally and to general principles of equity. The
execution, delivery or performance of this Agreement or compliance by
Seller with the terms and provisions hereof will not violate the terms
of the Suburban License.
2.20 FINANCIAL STATEMENTS. Section 2.20 of the
Disclosure Schedule contains a copy of the unaudited statement of
income, and the related balance sheet for the Company and the
Partnership, respectively, for the year ending December 31, 1994 and
the six-month period ending
Page 10
June 30, 1995 (the "Financial Statements"). The financial
Statements have been prepared in all material respects in accordance
with generally accepted accounting principles and in accordance with
policies and procedures of the Corporation applied thereto,
consistently applied. The Financial Statements present fairly the
financial condition and results of operations of the Company and the
Partnership (as the case may be) for the periods indicated in all
material respects.
2.21 TAXES. To Seller's knowledge, each of Seller, the
Company and the Partnership has (i)duly and timely filed, or has
received extensions in respect thereof of, all federal, state or local
income, sales, property, payroll and other tax returns and forms
required to be filed, which, if not filed, could reasonably be expected
to have a material adverse effect on the business of the Company or the
Partnership, and (b),other than these taxes, assessments, excises,
interest, penalties, deficiencies and levies payable by the landlords
under any real property leases, has or will have paid in full or
discharged all taxes, assessments, excises, interest, penalties,
deficiencies and levies required to be paid prior to the Closing Date.
2.22 UNDISCLOSED LIABILITIES. To the knowledge of
Seller, there has been no failure to disclose any material obligations
of Seller, the Company or the Partnership, except obligations incurred
in the ordinary and usual course of business.
3. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer
represents and warrants to Seller as follows:
3.1 DUE INCORPORATION. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania and has the corporate power and lawful
authority to own, lease and operate its assets, properties and business
and to carry on its business as now being and as heretofore conducted.
As of the Closing Date, Buyer is in good standing under the laws of the
Commonwealth of Pennsylvania and is qualified to do business in the
States of Georgia, Florida and Oklahoma.
3.2 CORPORATE POWER OF BUYER. The execution and
delivery of this Agreement has been duly and validly authorized and
approved by the board of directors of Buyer, and Buyer has the
corporate power and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby. The
execution, delivery, performance hereof, and compliance by Buyer with
the terms
Page 11
and provisions hereof, will not conflict with or result in a breach of
any of the terms, conditions or provisions of (a) the Certificate of
Incorporation or Bylaws of Buyer, (b) any judgment, order, injunction,
decree, regulation or ruling of any court or other governmental
authority to which Buyer is subject, or (c) any material agreement,
lease or contract, written or oral, to which Buyer is subject. This
Agreement will constitute the valid and binding obligation of Buyer
with respect to the terms hereof.
3.3 PURCHASE FOR INVESTMENT. Buyer is purchasing the
Shares for investment and not for resale or distribution, other than
resale by Buyer to a direct or indirect subsidiary thereof.
4. COVENANTS AND AGREEMENTS. The parties covenant and
agree as follows:
4.1 EXPENSES. Except as separately agreed by Buyer and
Seller in writing and except as otherwise specifically provided herein,
Buyer and Seller shall bear their respective expenses incurred in
connection with the preparation, execution and performance of this
Agreement and the transactions contemplated hereby, including, without
limitation, all fees and expenses of agents, representatives, counsel
and accountants.
4.2 FURTHER ASSURANCES. Each of the parties shall
execute such documents and other papers and take such further actions
as may be reasonably required or desirable to carry out the provisions
hereof and the transactions contemplated hereby. Each such party shall
use its best efforts to fulfill or obtain the fulfillment of the
conditions to the Closing.
5. COVENANTS OF SELLER.
5.1 CONTINUED OPERATION OF COMPANY. Seller shall
continue to operate the Company and shall cause the Company to operate
the Partnership in the manner in which the Company or the Partnership
has been operated heretofore, in the usual and ordinary course of
business, in conformity with all material applicable laws, ordinances,
regulations, rules and orders, and in accordance with the License
Agreement. Neither Seller nor the Company shall enter into or amend,
nor consent to the Partnership entering into or amending, any contracts
or commitments involving expenditures by Seller or the Company or the
Partnership in an aggregate amount in excess of $2,500.
5.2 THIRD PARTY CONSENTS. Seller shall use
commercially
reasonable efforts to obtain from any third
Page 12
party waivers, permits, licenses, approvals, authorizations,
qualifications, orders and consents necessary for the consummation of the
transactions contemplated by this Agreement.
5.3 ENCUMBRANCES. Seller shall not suffer or permit the
creation of any mortgage, conditional sales agreement, security interest,
lease, lien, hypothecation, deed of trust or pledge, encumbrance,
restriction, liability, charge, or imperfection of title with respect to
the Company.
5.4 ASSIGNMENT OF ASSETS. Seller shall not sell, assign,
lease or otherwise transfer or dispose of any of the assets of the
Company or the Partnership, whether now owned or hereafter acquired,
except for retirements in the normal and usual course of business or in
connection with the acquisition of similar property or assets.
5.5 INSURANCE. Seller shall maintain at all times
between the date hereof and the Closing Date all policies listed in
Section 2.12 of the Disclosure Schedule or else replace such policies
with comparable policies.
6. CONDITIONS PRECEDENT TO THE OBLIGATION OF BUYER TO
CLOSE. The obligation of Buyer to enter into and complete the Closing
is subject, at its option, to the fulfillment on or prior to the
Closing Date of the following conditions, any one or more of which may
be waived by it:
6.1 REPRESENTATIONS AND COVENANTS. The representations
and warranties of Seller contained in this Agreement shall be true on
and as of the Closing Date with the same force and effect as though
made on and as of the Closing Date in all material respects. Seller
shall have performed and complied with all covenants and agreements
required by this Agreement to be performed or complied with by Seller
on or prior to the Closing Date. Seller shall have delivered to Buyer
a certificate, dated the Closing Date and signed by an authorized
officer of Seller, to the foregoing effect and stating that all
conditions to Buyer's obligations hereunder have been satisfied.
6.2 GOVERNMENTAL PERMITS AND APPROVALS. All permits
required for the lawful consummation of the Closing shall have been
obtained.
6.3 THIRD PARTY CONSENTS. All consents, permits and
approvals from parties to contracts or other agreements with the
Company or with Seller that may be required in connection with the
performance by Seller of its obligations under this Agreement or the
continuance of such
Page 13
contracts or other agreements with the Company after the Closing shall
have been obtained.
6.4 LITIGATION. No action, suit or proceeding shall
have
been instituted before any court or governmental or regulatory body, or
instituted or threatened by any governmental or regulatory body or any
other person, to restrain, modify or prevent the carrying out of the
transactions contemplated hereby, or to seek damages or a discovery
order in connection with such transactions, or that has or may have, in
the reasonable opinion of Buyer, a material adverse effect on the
business of the Company.
6.5 DELIVERY OF STOCK CERTIFICATES; TRANSFER TAXES.
Seller shall have delivered to Buyer at the Closing stock certificates
representing all of the Shares duly endorsed in blank or accompanied by
stock powers duly executed in blank, in proper form for transfer.
Seller shall have paid, or caused to be paid, all stock transfer and
other taxes required to be paid in connection with the sale and
delivery to Buyer of the Shares, and shall have caused all appropriate
stock transfer tax stamps to be affixed to the certificate or
certificates representing the Shares.
6.6 DELIVERY OF CHARTER DOCUMENTS. Seller shall have
delivered to Buyer true and complete copies of the Certificate of
Incorporation (certified by the Secretaries of State or other
appropriate officials of their respective jurisdictions of
incorporation) and By-laws or comparable organizational or governing
instruments (certified by the Secretaries thereof) of Seller and the
Company, respectively.
6.7 DELIVERY OF BOOKS AND RECORDS. Seller shall have
delivered to Buyer the books, records and tax returns of the Company,
including records related to the Partnership in the possession of
Seller.
6.8 DELIVERY OF RESOLUTIONS. Seller shall have
delivered to Buyer a copy of the resolutions of the board of directors
of Seller authorizing the execution, delivery and performance of this
Agreement.
6.9 OPINION OF COUNSEL. Seller shall have delivered to
Buyer an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel
to Seller, substantially in the form attached hereto as ExhibitB.
6.10 TITLE COMMITMENT. Seller shall have obtained a
title commitment for an ALTA 92 Owner's Policy of title insurance in
favor of Buyer with respect to the Real
Page 14
Property issued by a title insurer reasonably acceptable to both Buyer and
Seller in the amount of the reasonably estimated fair market value of the
Real Property, which title commitment may be subject to the permitted
liens and encumbrances set forth in Schedule 2.11(c)(the "Permitted Liens"
)(the "Title Commitment"). The reasonable cost of the Title Commitment
shall be paid by Buyer.
6.11 SURVEY. Seller shall at its own expense order a
current survey reasonably acceptable to Buyer of the Real Property
prepared by a surveyor licensed by the State of Georgia, which survey
shall include (a) any encroachments from adjoining parcels onto the Real
Property; (b) the distances and bearings of all boundaries of the Real
Property and whether any improvements of Seller encroach on any real
property not part of the Real Property; and (c) any special flood hazard
area as designated by any governmental body affecting the Real Property
(the "Survey").
6.12 INSPECTION OF PROPERTY. Buyer shall have inspected
the Real Property.
6.13 SIMULTANEOUS CLOSING. The Closing between Buyer and
Xxxxxx in respect of the Jacksonville Agreement shall occur
simultaneously with the Closing hereunder.
7. CONDITIONS PRECEDENT TO THE OBLIGATION OF SELLER TO
CLOSE. The obligation of Seller to enter into and complete the Closing
is subject, at its option, to the fulfillment on or prior to the
Closing Date of the following conditions, any one or more of which may
be waived by it:
7.1 REPRESENTATIONS AND COVENANTS. The representations
and warranties of Buyer contained in this Agreement shall be true on
and as of the Closing Date with the same force and effect as though
made on and as of the Closing Date. Buyer shall have performed and
complied with all covenants and agreements required by this Agreement
to be performed or complied with by it on or prior to the Closing Date.
Buyer shall have delivered to Seller a certificate, dated the Closing
Date and signed by an officer of Buyer, to the foregoing effect and
stating that all conditions to Seller's obligations hereunder, have
been satisfied.
7.2 LITIGATION. No action, suit or proceeding shall
have
been instituted before any court or governmental or regulatory body, or
instituted or threatened by any governmental or regulatory body or any
person, to restrain, modify or prevent the carrying out of the
transactions
Page 15
contemplated hereby, or to seek damages or a discovery order
in connection with such transactions.
7.3 OPINION OF COUNSEL. Buyer shall have delivered to
Seller an opinion of counsel to Buyer substantially in the form of
Exhibit C addressed to and reasonably satisfactory to Seller.
7.4 ESCROW AGREEMENT. Seller and Buyer shall have
entered into an Escrow Agreement substantially in the form attached
hereto as Exhibit D.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF SELLER.
All representations and warranties shall survive the Closing hereunder
for a period of nine (9) months after the Closing Date (such 9-month
period being the "Indemnification Period") for the benefit of the
parties hereto and their successors and assigns. The covenants and
agreements of the parties hereto shall survive the Closing in accordance
with their terms.
9. INDEMNIFICATION.
9.1 INDEMNIFICATION BY SELLER. From and after the
Closing Date, Seller and OCC agree to and shall jointly and severally
indemnify, defend and hold Buyer harmless, and shall reimburse Buyer for
and against any and all actions, losses, expenses, damages, liabilities,
penalties or assessments, judgments and costs (including reasonable
legal expenses related thereto) resulting from or arising out of:
(a) Any breach by Seller of any representation or
warranty contained in this Agreement or in any certificate furnished to
or to be furnished pursuant hereto or in connection with the
transactions contemplated hereby;
(b) Any failure to comply with any covenant of
Seller contained in this Agreement or in any certificate furnished or to
be furnished pursuant hereto or in connection with the transactions
contemplated hereby; and
(c) Any liabilities of any kind or nature,
absolute or contingent of the Company, including, without limitation,
any liabilities relating to the business of the Company and the
Partnership prior to the Closing Date other than the liabilities set
forth on Schedule 2.7.
9.2 INDEMNIFICATION BY BUYER. From and after the Closing
Date, Buyer agrees to and shall indemnify, defend and hold Seller
harmless, and shall reimburse Seller
Page 16
for and against any and all actions, losses, expenses, damages,
liabilities, penalties or assessments, judgments and costs (including
reasonable legal expenses related thereto) resulting from or arising out
of:
(a) Any breach by Buyer of any representation or
warranty contained in this Agreement or in any certificate furnished or
to be furnished pursuant hereto or in connection with the transactions
contemplated hereby;
(b) Any failure to comply with any covenant of
Buyer contained in this Agreement or in any certificate furnished or to
be furnished pursuant hereto or in connection with the transactions
contemplated hereby; and
(c) Any liabilities of any kind or nature,
absolute or contingent, relating to or arising from the business of the
Company subsequent to the Closing Date.
9.3 NOTIFICATION OF CLAIMS.
(a)A party entitled to be indemnified pursuant to
Sections 9.1 or 9.2 (the "Indemnified Party") shall notify the party
liable for such indemnification (the "Indemnifying Party") in writing
of any claim or demand which the Indemnified Party has determined has
given or could give rise to a right of indemnification under this
Agreement. Subject to the Indemnifying Party's right to defend in good
faith third party claims as hereinafter provided, the Indemnifying
Party shall satisfy its obligations under this Section 9 within thirty
(30) days after the receipt of a written notice thereof from the
Indemnified Party.
(b) If the Indemnified Party shall notify the
Indemnifying Party of any claim or demand pursuant to Section 9.3(a),
and if such claim or demand relates to a claim or demand asserted by a
third party against the Indemnified Party which the Indemnifying Party
acknowledges is a claim or demand for which it must indemnify or hold
harmless the Indemnified Party under Sections 9.1 or 9.2, the
Indemnifying Party shall have the right to employ counsel acceptable to
the Indemnified Party to defend any such claim or demand asserted
against the Indemnified Party. The Indemnified Party shall have the
right to participate in the defense of any such claim or demand. The
Indemnifying Party shall notify the Indemnified Party in writing, as
promptly as possible (but in any case before the due date for the
answer or response to a claim) after the date of the notice of claim
given by the Indemnified Party to the Indemnifying Party under Section
9.3(a) of its election to defend in good faith any
Page 17
such third party claim or demand.
So long as the Indemnifying Party is defending in good faith any such
claim or demand asserted by a third party against the Indemnified
Party, the Indemnified Party shall not settle or compromise such claim
or demand. The Indemnified Party shall make available to the
Indemnifying Party or its agents all records and other materials in the
Indemnified Party's possession reasonably required by it for its use in
contesting any third party claim or demand. Whether or not the
Indemnifying Party elects to defend any such claim or demand, the
Indemnified Party shall have no obligations to do so. Upon payment of
any claim or demand pursuant to this Section 9, the Indemnifying Party
shall, to the extent of payment, be subrogated to all rights of the
Indemnified Party.
9.4 LIMITATION ON INDEMNIFICATION. Notwithstanding any
provision contained herein, (a)if Buyer has actual knowledge of a
breach by Seller of any representation, warranty, covenant or agreement
hereunder and Buyer closes notwithstanding such breach, Seller shall
not be responsible for any claim arising from such breach and Buyer
shall not be indemnified for such breach hereunder, and (b)if Seller
has actual knowledge of a breach by Buyer of any representation,
warranty, covenant or agreement hereunder and Seller closes
notwithstanding such breach, Buyer shall not be responsible for any
claim arising from such breach and Seller shall not be indemnified for
such breach hereunder.
10. TERMINATION OF AGREEMENT.
10.1 TERMINATION.
(a) Notwithstanding anything to the contrary
contained in this Agreement, this Agreement may be terminated at any
time by:
(i)the mutual written consent of the parties
hereto;
(ii) either Buyer or Seller if the
Closing in respect of the Jacksonville Agreement does
not occur before June 30, 1996, PROVIDED, HOWEVER, that the party
seeking termination under this Section 10.1(a)(ii) shall not have
prevented the Closing from occurring;
(iii) either Buyer or Seller if the
Assignment Application in respect of the Jacksonville Agreement is not
granted within nine (9) months from the date the FCC Form 314 is placed on
Commission public notice (through no fault of the terminating
Page 18
party) or is denied by the Commission by a Final Order or is
designated for hearing by the Commission, PROVIDED, HOWEVER, that, in
the event the Assignment Application is designated for hearing by the
Commission, the provisions of Section 10.1(e) shall apply;
(iv) Buyer, if any of the conditions set forth
in Section 6 shall have become incapable of fulfillment, and
shall not have been waived by Buyer, or if Seller or the Company
shall have breached in any material respect any of their
representations, warranties or obligations hereunder and
such breach shall not have been cured in all material respects or
waived prior to the Closing; or
(v) Seller, if any of the conditions set
forth in Section 7 shall have become incapable of fulfillment,
and shall not have been waived by Seller, or if Buyer shall
have breached in any material respect any of its representations,
warranties or obligations hereunder and such breach shall not have
been cured in all material respects or waived prior to the
Closing.
(b) In the event of the termination of this Agreement
by
Buyer or Seller pursuant to this Section 10.1, written notice thereof
shall promptly be given to the other party and, except as otherwise
provided herein, the transactions contemplated by this Agreement shall
be terminated, without further action by any party.
(c) In the event Seller terminates this Agreement
under
Section 10.1(a)(ii), (iii) or (v) Buyer shall forfeit the Escrow
Deposit to Seller, except in the event Buyer also has the right to
terminate under Section 10.1(a)(ii) or (iii) the Escrow Deposit shall
be returned to Buyer.
(d) In the event Buyer terminates this Agreement under
Section 10.1(a)(ii), (iii) or (iv) the Escrow Deposit shall be returned
to Buyer.
(e) The time for Commission approval provided in
Section
10.1(a)(iii) notwithstanding, either party may terminate this Agreement
upon written notice to the other, if, for any reason, the Assignment
Application in respect of the Jacksonville Agreement is designated for
hearing by the Commission, PROVIDED, HOWEVER, that written notice of
termination must be given within twenty (20) days after release of the
Hearing Designation Order and that the party giving such notice is not
in default and has otherwise
Page 19
complied with its obligations under this
Agreement. Upon termination pursuant to this Section, the parties
shall be released and discharged from any further obligation hereunder
and the Escrow Deposit shall be returned to Buyer.
(f) It is further PROVIDED, HOWEVER, that no party may
terminate this Agreement if such party is in default hereunder, or if a
delay in any decision or determination by the Commission respecting the
Assignment Application in respect of the Jacksonville Agreement has
been caused or materially contributed to (i)by any failure of such
party to furnish, file or make available to the Commission information
within its control; (ii)by the willful furnishing by such party of
incorrect, inaccurate or incomplete information to the Commission; and
(iii)by any other action taken by such party for the purpose of
delaying the Commission's decision or determination respecting the
Assignment Application. Upon such termination for failure of the
Commission to act, the parties shall be released and discharged from
any further obligation hereunder.
(g) A party shall be deemed to be in default under
this
Agreement only if such party has materially breached or failed to
perform its obligations hereunder, and non-material breaches or
failures shall not be grounds for declaring a party to be in default,
postponing the Closing, or terminating this Agreement.
(h) Neither the rights nor the remedies of either
Buyer
or Seller under Section 10.1(c), (d) or (e) shall prejudice any other
rights or remedies either Buyer or Seller may have under this
Agreement.
(i) If the Closing occurs, the Escrow Deposit shall be
applied to the Purchase Price at Closing.
If this Agreement so terminates, it shall become null and void and have
no further force or effect, except as provided in Section 10.2.
10.2 SURVIVAL. In the event this Agreement is
terminated and the transactions contemplated hereby are not consummated
as described herein, this Agreement shall become void and of no further
force and effect, except to the extent that the provisions of Sections
4.1 or 10.1(c), (d) or (e) apply.
11. MISCELLANEOUS.
11.1 ASSIGNMENT.
(a) This Agreement shall not be assigned or
conveyed by either party hereto to any other person or entity without
the prior written consent of the other parties hereto; PROVIDED,
HOWEVER, that Buyer may assign this Agreement without Seller's prior
consent to one or more corporations or other entities controlled by
Buyer. Subject to the foregoing, this Agreement shall be binding and
shall inure to the
benefit of the parties hereto, their successors and assigns.
(b) Notwithstanding anything to the contrary set
forth herein, Buyer may assign and transfer to any entity providing
financing for the transactions contemplated by this Agreement (or any
refinancing of such financing) as security for such financing all of
the interest, rights and remedies of Buyer with respect to this
Agreement and the Ancillary Agreements, and Seller shall expressly
consent to such assignment. Any such assignment will be made for
collateral security purposes only and will not release or discharge
Buyer from any obligations it may have pursuant to this Agreement.
Notwithstanding anything to the contrary set forth herein, Buyer may
(i)authorize and empower such financing sources to assert, either
directly or on behalf of Buyer, any claims Buyer may have against
Seller under this Agreement and (ii)make, constitute and appoint one
agent bank in respect of such financing (and all officers, employees
and agents designated by such agent) as the true and lawful attorney
and agent-in-fact of Buyer for the purpose of enabling the financing
sources to assert and collect any such claims.
11.2 BROKERAGE. Seller and Buyer warrant and
represent to one another that, with the exception of Xxxx Xxxxxxx,
broker for Seller, there has been no broker in any way involved in the
transactions contemplated hereby and that no one other than Xxxx
Xxxxxxx is or will be entitled to any fee or other compensation in the
nature of a brokerage fee or finder's fee as a result of the Closing
hereunder. Seller shall be wholly responsible for any brokerage or
other fee due to Xxxx Xxxxxxx.
11.3 ENTIRE AGREEMENT. This Agreement, together with
any related Schedules or Exhibits, contains all the terms agreed upon
by the parties with respect to the subject matter herein, and
supersedes all prior agreements and understandings among the parties
and may not be changed or terminated orally. No attempted change,
termination or waiver of any of the provisions hereof shall be binding
Page 21
unless in writing and signed by the party against whom the same is
sought to be enforced.
11.4 HEADINGS. The headings set forth in this
Agreement have been inserted for reference only and shall not be deemed
to limit or otherwise affect, in any manner, or be deemed to interpret
in whole or in part, any of the terms or provisions of this Agreement.
Unless otherwise specified herein, the section references contained
herein refer to sections of this Agreement.
11.5 GOVERNING LAW. This Agreement shall be construed
and enforced in accordance with the internal laws of the State of
NewYork.
11.6 NOTICES. Any notice or other communication
required or permitted hereunder shall be in writing and shall be
delivered personally, sent by facsimile transmission or sent by
certified, registered mail or overnight delivery, postage prepaid. Any
such notice shall be deemed given when so delivered personally or sent
by facsimile transmission, the next day if sent by overnight delivery
or, if mailed, two days after the date of deposit in the mails, as
follows:
(i) if to Buyer, to:
Xx. Xxxxxxx X. Xxxxx
Xxxxx Broadcasting Corporation
Xxxxxxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Phone: (000) 000-0000
with a copy to:
Xxxxx X. Pool
Xxxxxx Xxxxxxxxx, P.C. 0000 Xxx
XXX Xxxxx Xxxxxxxxxx, XX 00000
Fax:
(ii) if to Seller, to:
Xx. Xxxxx Xxxxxx
Xxxxxx Communications Corporation 000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Fax:
(000) 000-0000 Phone: (203)
629-0905
Page 22 with a copy
to:
Xxxxxx X. Xxxxx
Xxxx, Weiss, Rifkind,
Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Any party may by notice given in accordance with this Section to the
other party designate another address or person for receipt of notices
hereunder.
11.7 CONSENT TO JURISDICTION. Seller and Buyer
hereby submit to the nonexclusive jurisdiction of the courts of the
State of NewYork and the federal courts of the United States of America
located in such state solely in respect of the interpretation and
enforcement of
the provisions hereof and of the documents referred to herein, and
hereby waive, and agree not to assert, as a defense in any action, suit
or proceeding for the interpretation or enforcement hereof or of any
such document, that they are not subject thereto or that such action,
suit or proceeding may not be brought or is not maintainable in said
courts or that this Agreement or any of such documents may not be
enforced in or by said courts or that the Station property is exempt or
immune from execution, that the suit, action or proceeding is brought
in an inconvenient forum, or that the venue of the suit, action or
proceeding is improper.
11.8 PUBLIC ANNOUNCEMENTS. No public announcement
(including an announcement to employees) or press release concerning
this Agreement or the transactions provided for herein shall be made by
either party without the prior approval of the other party, except as
required by law.
11.9 NO THIRD PARTY BENEFICIARIES. Except as
specifically provided in Article 9, nothing in this Agreement, expressed
or implied, is intended or shall be construed to confer upon or give to
any person other than the parties and their successors or permitted
assigns any rights to remedies under or by reason of this Agreement.
11.10 VARIATIONS IN PRONOUNS. All pronouns and any
variations thereof refer to the masculine, feminine or neuter, singular
or plural, as the context may require.
11.11 COUNTERPARTS. This Agreement may be executed by
the
parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall
together
Page 23
constitute one and the same instrument. Each counterpart may
consist of a number of copies hereof each signed by less than all, but
together signed by all of the parties hereto.
11.12 EXHIBITS AND SCHEDULES. The Exhibits and
Schedules are a part of this Agreement as if fully set forth herein.
All references herein to Sections, subsections, clauses, Exhibits and
Schedules shall be deemed references to such parts of this Agreement,
unless the context shall otherwise require.
11.13 BULLDOG LICENSE AGREEMENTS. Buyer and Seller
acknowledge that at the time this Agreement was executed signature
pages to (i) the Xxxxxx License and the Suburban License and (ii)
sublicense agreements between Suburban and South Coast Broadcasting
Inc., and between the Company and Xxxxxx Broadcasting Corporation (the
"Bulldog License Agreements") were not delivered to Buyer as part of
such Bulldog License Agreements. Seller agrees with Buyer that Seller
shall use its reasonable commercial efforts to deliver to Buyer such
Bulldog License Agreements fully executed by all relevant parties
within thirty (30) days of the date hereof.
Page 24
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
SNG HOLDINGS, INC.
By:____________________________
Name: Xxxxx X. Xxxxxx
Title: President
XXXXX BROADCASTING CORPORATION
By:____________________________
Name: Xxxxxxx X. Xxxxx
Title: President
IN WITNESS WHEREOF, Xxxxxx Communications Corporation has
caused this Agreement to be executed by a duly authorized officer on
the day and year first above written for the sole purpose of being
bound by the provisions of Section 9 hereof.
XXXXXX COMMUNICATIONS CORPORATION
By:
Name: Xxxxx X.
Xxxxxx
Title: President
