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AMENDED AND RESTATED
STOCK PURCHASE AGREEMENT
BY AND AMONG
XXXXXX COMMUNICATIONS CORPORATION
AND
D P MEDIA, INC., ROSLYCK XXXXXX, XXXXX XXXXXX,
THE XXXX XXXXXX XXXXXX SUPPORT TRUST, THE XXXXX
XXXXXX XXXXXX SUPPORT TRUST, THE XXXXX XXXXXX
IRREVOCABLE CHILDREN'S TRUST, AND THE ROSLYCK
XXXXXX IRREVOCABLE CHILDREN'S TRUST
NOVEMBER 21, 1999
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS.................................................................................... 3
SECTION 2. PURCHASE AND SALE OF STOCK.................................................................... 11
2.1 Agreement to Sell and Buy..................................................................... 11
2.2 Assets at Closing............................................................................. 11
2.3 Excluded Assets............................................................................... 12
2.4 Liabilities at Closing........................................................................ 12
2.5 Purchase Price................................................................................ 13
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLERS..................................................... 13
3.1 Organization, Standing, and Authority......................................................... 13
3.2 Authorization and Binding Obligation.......................................................... 13
3.3 Absence of Conflicting Agreements............................................................. 14
3.4 Licenses...................................................................................... 14
3.5 Contracts..................................................................................... 15
3.6 Consents...................................................................................... 15
3.7 Reports....................................................................................... 15
3.8 Taxes......................................................................................... 16
3.9 Claims and Legal Actions...................................................................... 17
3.10 Compliance with Laws.......................................................................... 17
3.11 Insurance..................................................................................... 17
3.12 Real Property Interests....................................................................... 17
3.13 Title to Properties........................................................................... 17
3.14 Financial Statements.......................................................................... 17
3.15 Undisclosed Liabilities....................................................................... 18
3.16 Accounts Receivable........................................................................... 18
3.17 Capital....................................................................................... 18
3.18 Tangible Personal Property.................................................................... 18
3.19 Loan Documents................................................................................ 19
3.20 Environmental Matters......................................................................... 19
3.21 Personnel and Benefits; Labor................................................................. 20
3.22 Intangibles................................................................................... 22
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3.23 Stock......................................................................................... 22
3.24 Bank Accounts; Powers of Attorney............................................................. 22
3.25 Exchange Act; Investment Company Act.......................................................... 22
3.26 Full Disclosure............................................................................... 22
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER....................................................... 23
4.1 Organization, Standing, and Authority......................................................... 23
4.2 Authorization and Binding Obligation.......................................................... 23
4.3 Absence of Conflicting Agreements............................................................. 23
4.4 Buyer Qualifications.......................................................................... 23
4.5 Investment Purpose............................................................................ 23
4.6 Full Disclosure............................................................................... 23
SECTION 5. OPERATIONS PRIOR TO CLOSING................................................................... 24
5.1 Generally..................................................................................... 24
5.2 Compensation.................................................................................. 24
5.3 Contracts..................................................................................... 24
5.4 Disposition of Assets......................................................................... 24
5.5 Encumbrances.................................................................................. 24
5.6 Rights........................................................................................ 24
5.7 Insurance..................................................................................... 25
5.8 Access to Information......................................................................... 25
5.9 Consents...................................................................................... 25
5.10 Books and Records............................................................................. 25
5.11 Compliance with Laws.......................................................................... 25
5.12 Mergers....................................................................................... 25
5.13 Indebtedness and Obligations.................................................................. 25
5.14 Amendments.................................................................................... 25
5.15 Securities.................................................................................... 25
5.16 Maintenance of Assets......................................................................... 26
5.17 Preservation of Business...................................................................... 26
5.18 Licenses...................................................................................... 26
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5.19 No Inconsistent Action........................................................................ 27
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS.............................................................. 27
6.1 FCC Consent................................................................................... 27
6.2 Risk of Loss.................................................................................. 27
6.3 Confidentiality............................................................................... 28
6.4 Cooperation................................................................................... 28
6.5 Restricted Payment............................................................................ 28
6.6 HSR Act Filing................................................................................ 29
6.7 Environmental Reports......................................................................... 29
6.8 Distribution of Norwell Assets................................................................ 29
6.9 Tax Matters................................................................................... 30
6.10 Boston Purchase............................................................................... 33
6.11 Cure.......................................................................................... 33
6.12 Control of the Stations....................................................................... 34
6.13 Sales Tax Filings............................................................................. 34
6.14 Access to Books and Records................................................................... 34
6.15 Employee Plans................................................................................ 34
6.16 Fairness Opinion.............................................................................. 34
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLERS AT CLOSING..................................... 35
7.1 Conditions to Obligations of Buyer............................................................ 35
7.2 Conditions to Obligations of Sellers and the Company.......................................... 36
SECTION 8. CLOSING AND CLOSING DELIVERIES................................................................ 36
8.1 Closing....................................................................................... 36
8.2 Deliveries by Sellers......................................................................... 37
8.3 Deliveries by Buyer........................................................................... 38
SECTION 9. TERMINATION................................................................................... 38
9.1 Termination by Sellers........................................................................ 38
9.2 Termination by Buyer.......................................................................... 39
9.3 Rights on Termination......................................................................... 39
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9.4 Option........................................................................................ 40
9.5 Limitation.................................................................................... 40
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; CERTAIN REMEDIES................. 40
10.1 Representations and Warranties................................................................ 40
10.2 Indemnification by Sellers.................................................................... 41
10.3 Indemnification by Buyer...................................................................... 41
10.4 Procedure for Indemnification................................................................. 41
10.5 Limitations on Indemnification................................................................ 42
10.6 Specific Performance.......................................................................... 43
10.7 Attorneys' Fees............................................................................... 43
SECTION 11. MISCELLANEOUS................................................................................. 43
11.1 Fees and Expenses............................................................................. 43
11.2 Arbitration................................................................................... 43
11.3 Notices....................................................................................... 44
11.4 Benefit and Binding Effect.................................................................... 45
11.5 Further Assurances............................................................................ 45
11.6 Governing Law................................................................................. 45
11.7 Headings...................................................................................... 46
11.8 Gender and Number............................................................................. 46
11.9 Entire Agreement.............................................................................. 46
11.10 Waiver of Compliance; Consents................................................................ 46
11.11 Press Release................................................................................. 46
11.12 Consent to Jurisdiction and Service of Process................................................ 46
11.13 No Recourse................................................................................... 47
11.14 Counterparts.................................................................................. 47
11.15 Time Brokerage Agreement Fee.................................................................. 47
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LIST OF SCHEDULES AND EXHIBITS
Schedule 2.3 -- Excluded Assets
Schedule 3.3 -- Sellers' Consents
Schedule 3.4 -- Licenses
Schedule 3.5 -- Contracts
Schedule 3.8 -- Tax Matters
Schedule 3.9 -- Litigation
Schedule 3.11 -- Insurance
Schedule 3.12 -- Real Property
Schedule 3.13 -- Exception to Title
Schedule 3.15 -- Liabilities
Schedule 3.18 -- Tangible Personal Property
Schedule 3.21 -- Personnel and Benefits; Labor
Schedule 3.22 -- Intangibles
Schedule 3.23 -- Stock
Schedule 4.3 -- Buyer's Consents
Schedule 6.8(b) -- Limited Liability Company Agreement of Norwell LLC
Schedule 6.8(d) -- Amended and Restated Limited Liability Agreement of Norwell LLC
Schedule 8.2(c) -- Estoppel Certificates
Schedule 8.2(i) -- Opinion of Sellers' Counsel
Schedule 8.3(c) -- Opinion of Buyer's Counsel
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AMENDED AND RESTATED
STOCK PURCHASE AGREEMENT
THIS AMENDED AND RESTATED STOCK PURCHASE AGREEMENT (this "Agreement")
is dated as of the 21st day of November, 1999, by and among D P MEDIA, INC., a
Florida corporation (the "Company"); ROSLYCK XXXXXX, an individual; XXXXX
XXXXXX, an individual; The Private Capital Group of STI Capital Management,
N.A., as Trustee of the Xxxx Xxxxxx Xxxxxx Support Trust dated November 1, 1994
(the "TLP Trust"); The Private Capital Group of STI Capital Management, N.A.,
as Trustee of the Xxxxx Xxxxxx Xxxxxx Support Trust dated November 1, 1994 (the
"JLP Trust"); THE XXXXX XXXXXX IRREVOCABLE CHILDREN'S TRUST, Roslyck Xxxxxx as
sole Trustee (the "DPC Trust"); THE ROSLYCK XXXXXX IRREVOCABLE CHILDREN'S
TRUST, Xxxxx Xxxxxx as sole Trustee (the "RPC Trust" and, together with Roslyck
Xxxxxx, Xxxxx Xxxxxx, the TLP Trust, the JLP Trust, and the DPC Trust,
individually, a "Seller" and collectively, the "Sellers"); and XXXXXX
COMMUNICATIONS CORPORATION, a Delaware corporation ("Buyer").
R E C I T A L S
A. The Company owns all of the issued and outstanding capital stock
of:
(i) D P Media of Xxxxxxx Xxxxxx, Inc., a Florida corporation ("D P
Xxxxxxx Xxxxxx"), which, in turn, owns all of the issued and outstanding
capital stock of D P Media License of Xxxxxxx Xxxxxx, Inc., a Florida
corporation ("Raleigh License"), which, together with D P Xxxxxxx Xxxxxx owns
and operates television station WRPX(TV), Rocky Mount, North Carolina
("WRPX(TV)"), pursuant to licenses issued to Raleigh License by the Federal
Communications Commission ("FCC");
(ii) D P Media of Martinsburg, Inc., a Florida corporation ("D P
Martinsburg"), which, in turn, owns all of the issued and outstanding capital
stock of D P Media License of Martinsburg, Inc., a Florida corporation
("Martinsburg License"), which, together with D P Martinsburg, owns and
operates television station WWPX(TV), Martinsburg, West Virginia ("WWPX(TV)"),
pursuant to licenses issued to Martinsburg License by the FCC;
(iii) D P Media of St. Louis, Inc., a Florida corporation ("D P St.
Louis"), which, in turn, owns all of the issued and outstanding capital stock
of D P Media License of St. Louis, Inc., a Florida corporation ("St. Louis
License"), which, together with D P St. Louis, owns and operates television
station WPXS(TV), Mt. Xxxxxx, Illinois, and low power television station K40FF,
St. Louis, Missouri (collectively, "WPXS(TV)"), pursuant to licenses issued to
St. Louis License by the FCC;
(iv) D P Media of Battle Creek, Inc., a Florida corporation ("D P
Battle Creek"), which, in turn, owns all of the issued and outstanding capital
stock of D P Media License of Battle Creek, Inc., a Florida corporation
("Battle Creek License"), which, together
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with D P Battle Creek, owns and operates television station WZPX(TV), Battle
Creek, Michigan ("WZPX(TV)"), pursuant to licenses issued to Battle Creek
License by the FCC;
(v) D P Media of Milwaukee, Inc., a Florida corporation ("D P
Milwaukee"), which, in turn, owns all of the issued and outstanding capital
stock of D P Media License of Milwaukee, Inc., a Florida corporation
("Milwaukee License"), which, together with D P Milwaukee, owns and operates
television station WPXE(TV), Kenosha, Wisconsin ("WPXE(TV)"), pursuant to
licenses issued to Milwaukee License by the FCC;
(vi) RDP Communications, Inc., a Florida corporation ("RDP"),
which, in turn, owns all of the issued and outstanding capital stock of RDP
Communications of Indianapolis, Inc., a Florida corporation ("RDP
Indianapolis"), which, in turn, is the owner of all of the issued and
outstanding capital stock of RDP Communications License of Indianapolis, Inc.,
a Florida corporation ("Indianapolis License"), which, together with RDP
Indianapolis, owns and operates television station WIPX(TV), Bloomington,
Indiana ("WIPX(TV)"), pursuant to licenses issued to Indianapolis License by
the FCC;
(vii) CAP Communications, Inc., a Florida corporation ("CAP"),
which, in turn, owns all of the issued and outstanding capital stock of CAP
Communications of New London, Inc., a Florida corporation ("CAP New London"),
which, in turn, owns all of the issued and outstanding capital stock of CAP
Communications License of New London, Inc., a Florida corporation ("New London
License"), which, together with CAP New London, owns and operates television
station WHPX(TV), New London, Connecticut ("WHPX(TV)"), pursuant to licenses
issued to New London License by the FCC;
(viii) CAP, which, in turn, also owns all of the issued and
outstanding capital stock of CAP Communications of Boston, Inc., a Florida
corporation ("CAP Boston"), which, in turn, owns all of the issued and
outstanding capital stock of Channel 66 of Tampa, Inc., a Florida corporation
("Channel 66"), which, in turn, owns all of the issued and outstanding capital
stock of Channel 46 of Boston, Inc., a Florida corporation ("Norwell License"),
which, together with CAP Boston and Channel 66, own and operate television
station WWDP(TV), Norwell, Massachusetts ("WWDP(TV)"), pursuant to licenses
issued to Norwell License by the FCC; and
(ix) D P Media of Boston, Inc., a Florida corporation ("D P
Boston"), which, in turn, owns all of the issued and outstanding capital stock
of D P Media License of Boston, Inc., a Florida corporation ("Boston License"),
which is the proposed assignee of the licenses issued by the FCC for television
stations WBPX(TV), Boston, Massachusetts ("WBPX(TV)"), WDPX(TV), Vineyard
Haven, Massachusetts ("WDPX(TV)"), WPXG(TV), Concord; New Hampshire
("WPXG(TV)"), and low power television station W33BZ, Dennis, Massachusetts
("W33BZ").
B. Buyer has loaned to the Company One Hundred Five Million Nine
Hundred Ninety-Seven Thousand Sixteen and 37/100 Dollars ($105,997,016.37)
pursuant to the terms of a Credit Agreement dated November 21, 1999, between
Buyer and the Company, which Credit Agreement was amended by Buyer and the
Company pursuant to a First Amendment to Credit Agreement dated as of February
29, 2000, and pursuant to a Second Amendment to Credit
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Agreement dated as of April 3, 2000 (as amended, the "Credit Agreement"), and
the Company has delivered to Buyer its Promissory Note in the principal amount
of such loan (the "Note").
C. Buyer, the Company, and each subsidiary of the Company are parties to
an Asset Purchase Agreement dated as of November 21, 1999, pursuant to which
the Company and such subsidiaries agree to sell, and Buyer agrees to purchase,
substantially all of the assets used or useful in the business or operations of
the Stations, for the price and on the terms and conditions set forth therein,
which Asset Purchase Agreement was amended by the Company, Buyer and National
Broadcasting Company, Inc. ("NBC") pursuant to a First Amendment to Asset
Purchase Agreement dated as of December 22, 1999 (as amended, the "Asset
Purchase Agreement").
D. Pursuant to Section 6.8 of the Asset Purchase Agreement, the Company
has proposed to Buyer that Buyer acquire all of the issued and outstanding
capital stock of the Company in lieu of the Assets, in accordance with the
terms of a stock purchase agreement that provides Buyer with the same rights
and benefits to which Buyer is entitled under the terms of the Asset Purchase
Agreement.
E. In accordance with Section 6.8 of the Asset Purchase Agreement, Sellers
and Buyer desire to amend and restate the Asset Purchase Agreement to provide
that Sellers shall sell, and Buyer shall purchase, all of the issued and
outstanding shares of capital stock of the Company, in lieu of the Assets, for
the price and on the terms and conditions set forth in this Agreement.
F. Buyer and NBC are parties to an Investment Agreement dated as of
September 15, 1999, which requires, among other things, that Buyer obtain NBC's
consent to the transactions contemplated by this Agreement and various
agreements contemplated hereby. NBC has provided such consent.
A G R E E M E N T S
In consideration of the above recitals and of the mutual agreements
and covenants contained in this Agreement, Buyer, Sellers and the Company,
intending to be bound legally, agree as follows:
SECTION 1. DEFINITIONS
The following terms, as used in this Agreement, shall have the
meanings set forth in this Section:
"Accounts Receivable" means the rights of the Company and each
Subsidiary as of the Closing Date to payment for (i) the sale of advertising
and program time broadcast on the Stations and (ii) other goods and services
provided by the Company and each Subsidiary with respect to the Stations.
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"Affiliate" means (a) any Person that directly or indirectly, through
one or more intermediaries, controls, is controlled by or is under common
control with another Person, or (b) an officer or director of an affiliate
within the meaning of (a) above.
"Assets" means the assets of the Company and each Subsidiary as
specified in Section 2.2.
"Asset Purchase Agreement" has the meaning set forth in the Recitals.
"Asset Subsidiaries" means D P Raleigh Xxxxxx, X X Martinsburg, D P
St. Louis, D P Battle Creek, D P Milwaukee, D P Boston, RDP Indianapolis, CAP
New London, CAP Boston and Channel 66 collectively, and "Asset Subsidiary"
means any one of the Asset Subsidiaries individually.
"Battle Creek License" has the meaning set forth in the Recitals.
"Borrower's Security Agreement" means the Security and Pledge
Agreement dated as of November 22, 1999, by and between the Company and Buyer.
"Boston Affiliation Agreement" means the PAX TV Network Affiliation
Agreement dated as of the date hereof, by and among Xxxxxx Communications
Corporation d/b/a PAX NET, Inc., D P Boston and Boston License. Buyer, the
Company and Sellers acknowledge that each reference in the Boston Affiliation
Agreement to the "Asset Purchase Agreement with D P Media of Boston dated as of
November 21, 1999" and the defined term "Asset Purchase Agreement" shall be
deemed to be a reference to this Agreement for all purposes thereunder.
"Boston Escrow Agreement" means the Escrow Agreement dated as of April
30, 1999, by and among D P Boston, Boston University Communications, Inc. and
First Union National Bank.
"Boston License" has the meaning set forth in the Recitals.
"Boston Purchase Agreement" means the Asset Purchase Agreement dated
as of April 30, 1999, by and between D P Boston and Boston University
Communications, Inc.
"Boston Purchase Documents" means collectively, the Boston Purchase
Agreement, the Boston Escrow Agreement and the Boston Time Brokerage Agreement.
"Boston Time Brokerage Agreement" means the Time Brokerage Agreement
dated as of April 30, 1999, by and between D P Boston and Boston University
Communications, Inc.
"Boston University" has the meaning set forth in Section 6.10.
"Buyer" has the meaning set forth in the Preamble.
"Buyer Ancillary Agreements" means the Time Brokerage Agreements,
Boston Affiliation Agreement, Loan Documents, Norwell LLC Agreement and all
other agreements and
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instruments, which have been or will be executed and delivered by Buyer
pursuant hereto or thereto.
"CAP" has the meaning set forth in the Recitals.
"CAP Boston" has the meaning set forth in the Recitals.
"CAP New London" has the meaning set forth in the Recitals.
"Channel 66" has the meaning set forth in the Recitals.
"Claimant" has the meaning set forth in Section 10.3(d).
"Closing" means the consummation of the purchase and sale of the Stock
pursuant to this Agreement in accordance with the provisions of Section 8.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
"Company" has the meaning set forth in the Preamble.
"Company Material Adverse Effect," when used in Section 3 hereof,
means one or more events or circumstances that have resulted or could
reasonably be expected to result in loss, liability or damages with respect to
the Assets or the business, operations or financial condition of one or more
Stations in an amount in excess of Twenty-Five Thousand Dollars ($25,000) and,
when used in clause (iii) of Section 7.1(a), Section 7.1(e) and Section 9.2(g)
hereof, means one or more events or circumstances that have resulted or could
reasonably be expected to result in loss, liability or damages with respect to
the Assets or the business, operations or financial condition of one or more
Stations in an amount in excess of Two Hundred Fifty Thousand Dollars
($250,000), provided that any loss, liability or damages to the Assets or to
one or more of the Stations directly or indirectly attributable to Buyer or an
Affiliate of Buyer under one or more of the Time Brokerage Agreements, the
Programming Agreement or under the Boston Affiliation Agreement, as defined
below, shall not constitute a Company Material Adverse Effect.
"Consents" means all consents, permits, approvals or notices to or
filings with governmental authorities and other third parties necessary to
transfer the Stock to Buyer or otherwise to consummate the transactions
contemplated by this Agreement.
"Contracts" means, other than the Company's Lease Agreement for its
corporate headquarters located in Palm Beach, Florida, 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 or any
Subsidiary is a party or which are binding upon the Company or any Subsidiary
and which relate to or affect the Assets or the business or operations of the
Stations, and (i) which are in effect on the date of this Agreement or (ii)
which are entered into by the Company or any Subsidiary between the date of
this Agreement and the Closing Date in accordance with Section 5.3 hereof.
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"Credit Agreement" has the meaning set forth in the Recitals.
"DOJ" means the United States Department of Justice.
"D P Battle Creek" has the meaning set forth in the Recitals.
"D P Boston" has the meaning set forth in the Recitals.
"D P Martinsburg" has the meaning set forth in the Recitals.
"D P Milwaukee" has the meaning set forth in the Recitals.
"D P Xxxxxxx Xxxxxx" has the meaning set forth in the Recitals.
"D P St. Louis" has the meaning set forth in the Recitals.
"DPC Trust" has the meaning set forth in the Recitals.
"Existing Phase I Reports" has the meaning set forth in Section 6.7.
"Fairness Opinion" has the meaning set forth in Section 2.5(b).
"FCC" has the meaning set forth in the Recitals.
"FCC Consent" means action by the FCC granting its consent to the
transfer of control of the Company from Sellers to Buyer.
"FCC Licenses" means all Licenses issued by the FCC to the Company or
any Subsidiary in connection with the business or operations of the Stations.
"Final Order" and "Final Orders" mean an action or actions by the FCC
that have 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 or actions
on its own motion have expired.
"Financial Statements" has the meaning set forth in Section 3.14.
"FTC" means the United States Federal Trade Commission.
"GAAP" means generally accepted accounting principles, as in effect
from time to time, applied on a consistent basis.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"Indemnification Limit" has the meaning set forth in Section 10.5.
"Indemnifying Party" has the meaning set forth in Section 10.3(d).
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"Indemnity Period" has the meaning set forth in Section 10.1.
"Indianapolis License" has the meaning set forth in the Recitals.
"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 applied
for, issued to, or owned by the Company or any Subsidiary or under which the
Company or any Subsidiary is licensed or franchised and that are used or useful
in the business and operations of any Station, together with any additions
thereto between the date of this Agreement and the Closing Date.
"IRS" means the United States Internal Revenue Service.
"JLP Trust" has the meaning set forth in the Recitals.
"Licenses" means all licenses, permits, and other authorizations
issued by the FCC, the Federal Aviation Administration, or any other federal,
state, or local governmental authority in connection with the conduct of the
business or operations of the Stations, together with any additions thereto
between the date of this Agreement and the Closing Date.
"License Subsidiaries" means Raleigh License, Martinsburg License, St.
Louis License, Battle Creek License, Milwaukee License, Indianapolis License,
New London License, Boston License and Norwell License collectively, and
"License Subsidiary" means any one of the License Subsidiaries individually.
"Limited Recourse Agreement" means the Limited Recourse Guaranty and
Pledge Agreement dated as of November 22, 1999, made by the Sellers to and with
Buyer.
"Loan Documents" means collectively, the Credit Agreement, Note,
Borrower's Security Agreement, Limited Recourse Agreement, Subordination
Agreement and Subsidiary Guaranty, as one or more of the foregoing may be
amended from time to time following the date hereof.
"Martinsburg License" has the meaning set forth in the Recitals.
"Milwaukee License" has the meaning set forth in the Recitals.
"NBC" means the National Broadcasting Company, Inc.
"New London License" has the meaning set forth in the Recitals.
"Norwell FCC Consent" has the meaning set forth in Section 6.8.
"Norwell License" has the meaning set forth in the Recitals.
"Norwell LLC" has the meaning set forth in Section 6.8.
"Norwell LLC Agreement" has the meaning set forth in Section 6.8.
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"Note" has the meaning set forth in the Recitals.
"Option" has the meaning set forth in Section 9.4.
"Option Purchase Agreement" has the meaning set forth in SECTION 9.4.
"Permitted Contracts" means (i) those Contracts listed on SCHEDULE
3.5, (ii) Contracts entered into by the Company or any Subsidiary in the
ordinary course of business with advertisers for the sale of advertising or
program time on the Stations for cash at rates consistent with past practices
and which may be cancelled by the Stations without penalty on not more than
thirty (30) days' notice, (iii) other Contracts entered into by the Company or
any Subsidiary between the date hereof and the Closing Date in the ordinary
course of business consistent with past practices that do not involve
obligations or liabilities in excess of Five Thousand Dollars ($5,000) for each
such Contract or Fifty Thousand Dollars ($50,000) for all such Contracts in the
aggregate, and (iv) Contracts, other than the Contracts described in clause
(ii) or (iii) above, entered into by the Company or any Subsidiary between the
date hereof and Closing that Buyer agrees to assume in writing.
"Person" means an individual, corporation, association, partnership,
joint venture, trust, estate, limited liability company, limited liability
partnership, or other entity or organization.
"Petition" has the meaning set forth in Section 8.1(b).
"Phase II Report" has the meaning set forth in Section 6.7(b).
"Plan" has the meaning set forth in Section 6.15.
"Programming Agreement" means the Programming Agreement dated as of
June 7, 1999, between Buyer D/B/A PAXNET, Inc. and Norwell License.
"Purchase Price" means the purchase price specified in Section 2.5(a).
"Raleigh License" has the meaning set forth in the Recitals.
"Real Property Interests" means, other than the Company's interests in
its corporate headquarters located in Palm Beach, Florida, 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 any Subsidiary that
are used or useful in the business or operations of any Station, together with
any additions thereto between the date of this Agreement and the Closing Date.
"RDP" has the meaning set forth in the Recitals.
"RDP Indianapolis" has the meaning set forth in the Recitals.
"RPC Trust" has the meaning set forth in the Recitals.
"Seller" and "Sellers" have the meanings set forth in the Preamble.
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"Seller Ancillary Agreements" means the Time Brokerage Agreements,
Boston Affiliation Agreement, Loan Documents, Norwell LLC Agreement and all
other agreements and instruments, which have been or will be executed and
delivered by Sellers thereto or hereto.
"St. Louis License" has the meaning set forth in the Recitals.
"Stations" means WRPX(TV), WWPX(TV), WPXS(TV), WZPX(TV), WPXE(TV),
WIPX(TV), WHPX(TV), and WWDP(TV) collectively, and "Station" means any one of
the Stations individually.
"Stock" means all of the issued and outstanding shares of the capital
stock of the Company, consisting of 1 share of Class A Common Stock, 3,876
shares of Class B Common Stock and 228 shares of Class C Common Stock.
"Straddle Period" means any taxable year or period beginning before
and ending after the Closing Date.
"Subordination Agreement" means the Subordination Agreement dated as
of November 22, 1999, by and among Sellers, Buyer, the Company and the
Subsidiaries.
"Subsidiaries" means collectively, RDP, CAP, the Asset Subsidiaries
and License Subsidiaries and "Subsidiary" means RDP, CAP, any Asset Subsidiary
or License Subsidiary, individually.
"Subsidiary Guaranty" means the Subsidiary Guaranty, Security and
Pledge Agreement dated as of November 22, 1999, made by Sellers to and with
Buyer.
"Tangible Personal Property" means, other than the tangible personal
property located at the Company's corporate headquarters in Palm Beach,
Florida, 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 and any Subsidiary that
is used or useful in the conduct of the business or operations of any Station,
together with any additions thereto between the date of this Agreement and the
Closing Date.
"Tax" (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 with respect to such additions or penalties.
"Tax Losses" has the meaning set forth in Section 6.9(a).
"Tax Returns" means all federal, state, local and foreign income and
franchise Tax returns and Tax reports (including any attached schedules) and
other Tax statements and other similar filings required to be filed, including,
any information return, claim for refund, amended return or declaration of
estimated Tax.
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"Time Brokerage Agreements" means collectively, the Time Brokerage
Agreement dated November 21, 1999, between Raleigh License and a subsidiary of
Buyer; the Time Brokerage Agreement dated November 21, 1999, between
Martinsburg License and a subsidiary of Buyer; the Time Brokerage Agreement
dated November 21, 1999, between St. Louis License and a subsidiary of Buyer;
the Time Brokerage Agreement dated November 21, 1999, between Battle Creek
License and a subsidiary of Buyer; the Time Brokerage Agreement dated November
21, 1999, between Milwaukee License and a subsidiary of Buyer; the Time
Brokerage Agreement dated November 21, 1999, between Indianapolis License and a
subsidiary of Buyer; the Time Brokerage Agreement dated November 21, 1999,
between New London License and a subsidiary of Buyer; and the Time Brokerage
Agreement dated November 21, 1999, between Norwell License and a subsidiary of
Buyer. Buyer, the Company and Sellers acknowledge that each reference in the
Time Brokerage Agreements to the "Asset Purchase Agreement dated as of November
21, 1999" and the defined term "Purchase Agreement" shall be deemed to be a
reference to this Agreement for all purposes thereunder.
"Time Brokerage Agreements Fee" has the meaning set forth in Section
11.15.
"TLP Trust" has the meaning set forth in the Recitals.
"To the best knowledge of the Company" means to the actual knowledge
of Xxxxx Xxxxxx, Roslyck Xxxxxx or Xxxxxx Xxxx following reasonable inquiry.
"Trust Agreements" means collectively, the Trust Agreement for the TLP
Trust; the Trust Agreement for the JLP Trust; the Trust Agreement for the DPC
Trust; the Trust Agreement for the RPC Trust.
"Trusts" means collectively, the DPC Trust, the JLP Trust, the RPC
Trust and the TLP Trust.
"Updated Reports" has the meaning set forth in Section 6.7(b).
"W33BZ" has the meaning set forth in the Recitals.
"WBPX(TV)" has the meaning set forth in the Recitals.
"WDPX(TV)" has the meaning set forth in the Recitals.
"WEBZ(FM) Distribution" has the meaning set forth in Section 2.3(a).
"WHPX(TV)" has the meaning set forth in the Recitals.
"WIPX(TV)" has the meaning set forth in the Recitals.
"WPXE(TV)" has the meaning set forth in the Recitals.
"WPXG(TV)" has the meaning set forth in the Recitals.
"WPXS(TV)" has the meaning set forth in the Recitals.
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"WRPX(TV)" has the meaning set forth in the Recitals.
"WWDP Assets" has the meaning set forth in Section 2.3(f).
"WWDP(TV)" has the meaning set forth in the Recitals.
"WWPX(TV)" has the meaning set forth in the Recitals.
"WZPX(TV)" has the meaning set forth in the Recitals.
SECTION 2. PURCHASE AND SALE OF STOCK
2.1 AGREEMENT TO SELL AND BUY. Subject to the terms and conditions set
forth in this Agreement, each Seller hereby agrees to sell, transfer, and
deliver to Buyer on the Closing Date, and Buyer agrees to purchase on the
Closing Date, each share of Stock owned or held by such Seller, free and clear
of any claims, liabilities, security interests, mortgages, liens, pledges,
conditions, charges, or encumbrances of any nature whatsoever, other than liens
granted to Buyer pursuant to the Loan Documents.
2.2 ASSETS AT CLOSING. The assets to be owned by the Company or the
Subsidiaries, as the case may be, at the Closing, all of which shall be free
and clear of any liabilities, liens, security interests, pledges, claims,
mortgages, conditions, charges or encumbrances (except for encumbrances
permitted by Section 5.5 hereof), shall include the following (collectively,
the "Assets"):
(a) the Tangible Personal Property;
(b) the Real Property Interests;
(c) the Licenses;
(d) the Permitted Contracts;
(e) the Intangibles;
(f) all of the Company's and each Subsidiary's proprietary
information, technical information and data, machinery and equipment
warranties, maps, computer discs and tapes, plans, diagrams, blueprints, and
schematics, including filings with the FCC relating to the business and
operation of any Station;
(g) all choses in action of the Company and each Subsidiary
relating to any Station;
(h) all books and records of each Station, including executed
copies of the Contracts and all records required by the FCC to be kept by each
Station;
(i) all Accounts Receivable; and
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(j) the Company's and each Subsidiary's cash, cash equivalents,
and marketable securities on hand as of the Closing, and all other cash in any
of the Company's and each Subsidiary's bank accounts any and all insurance
policies, bonds, letters of credit, or other similar items, any cash surrender
value in regard thereto, and any and all claims receivable under any and all
insurance policies.
2.3 EXCLUDED ASSETS. Notwithstanding any requirement in Section 2.2 to
the contrary, Buyer acknowledges and agrees that the Assets to be owned by the
Company or its Subsidiaries at the Closing shall not include the following:
(a) any amount paid to D P Media of Panama City, Inc. and D P
Media License of Panama City, Inc. upon the assignment of the licenses for
radio station WEBZ(FM), Panama City, Florida, to Jacor Licensee of Louisville
II, Inc. (the "WEBZ(FM) Distribution"), it being understood that the Company
shall be permitted to distribute the entire amount of the WEBZ(FM) Distribution
to the Sellers at any time prior to Closing;
(b) all or any portion of the Time Brokerage Agreements Fee, it
being understood that the Company shall be permitted to distribute the entire
amount of the Time Brokerage Agreements Fee to the Sellers at any time prior to
Closing;
(c) copies of all books and records that any Seller is required by
law to retain;
(d) any collective bargaining agreements;
(e) all property listed on SCHEDULE 2.3 hereto, it being
understood that the Company shall be permitted to distribute all such property
to Sellers or a newly formed subsidiary of Sellers at any time prior to the
Closing; and
(f) all assets and properties that are owned, leased or held by
the Company, CAP, CAP Boston, Channel 66 or Norwell License that are used or
useful solely in connection with the business or operations of WWDP(TV)
(collectively, the "WWDP Assets"), it being understood that the Company shall
be required to transfer, assign and convey the WWDP Assets to a newly formed
limited liability company prior to the Closing in accordance with the
provisions of Section 6.8 hereof.
2.4 LIABILITIES AT CLOSING.
(a) PERMITTED LIABILITIES. At the Closing, neither the Company nor
any Subsidiary shall have any liabilities or obligations of any kind or nature,
whether absolute, accrued, contingent or otherwise, other than the following
liabilities and obligations, none of which shall be past due or otherwise in
default:
(i) liabilities and obligations arising under the terms of
(and not as a result of any default under) the Permitted Contracts;
(ii) liabilities for Taxes that are not yet due and payable;
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(iii) liabilities and obligations arising under the terms of
(and not as a result of any default under) the Licenses;
(iv) liabilities and obligations to Buyer arising under the
terms of (and not as a result of any default under) the Loan Documents; and
(v) liabilities and obligations to Buyer arising under the
terms of (and not as a result of any default under) the Time Brokerage
Agreements and Boston Affiliation Agreement.
(b) LIABILITIES NOT PERMITTED. Without limiting the generality of
Section 2.4(a), the liabilities and obligations of the Company at Closing shall
not include (i) any obligations or liabilities under the Company's lease
agreement for its corporate headquarters in West Palm Beach, Florida, and any
other Contract that is not a Permitted Contract, (ii) any credit agreements,
note purchase agreements, indentures, capital leases or other financing
arrangements, other than the Loan Documents, (iii) any agreements entered into
other than in the ordinary course of business of the Stations, (iv) any
agreements with any Seller or any Affiliate of any Seller, or (v) any
obligations or liabilities under any Contract or License relating to WWDP(TV)
or the WWDP Assets.
2.5 PURCHASE PRICE.
(a) AMOUNT. The purchase price for the Stock shall be Seven
Million Five Hundred Thousand Dollars ($7,500,000) (the "Purchase Price").
(b) PAYMENT. Buyer shall pay to Sellers upon Closing by wire
transfer of immediately available funds pursuant to wire instructions provided
by Sellers to Buyer at least two (2) business days prior to the Closing Date an
amount in cash equal to the Purchase Price.
Section 3. REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers, jointly and severally, hereby represent and warrant to Buyer
as follows:
3.1 ORGANIZATION, STANDING, AND AUTHORITY. The Company is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Florida. Each Subsidiary is duly organized, validly
existing, and in good standing under the laws of the State of Florida and each
Asset Subsidiary is qualified to do business as a foreign corporation in each
jurisdiction in which the ownership of its respective Assets or the conduct of
its respective business or operations requires such qualification. The Company
and each Subsidiary has all requisite power and authority to own, lease, and
use its respective Assets as now owned, leased, and used. Each Seller and the
Company has all requisite power and authority to execute and deliver this
Agreement and to perform and comply with all of the terms, covenants, and
conditions to be performed and complied with by him or it hereunder.
3.2 AUTHORIZATION AND BINDING OBLIGATION. The execution, delivery and
performance of this Agreement and the Seller Ancillary Agreements by the
Company, the Subsidiaries and each Seller, as applicable, have been duly
authorized and approved by all necessary action
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of the Company, the Subsidiaries and such Seller and do not require any further
authorization or consent. This Agreement and each Seller Ancillary Agreement
are legal, valid and binding agreements of each Seller, as applicable,
enforceable in accordance with their respective terms, except in each case as
such enforceability may be limited by bankruptcy, moratorium, insolvency,
reorganization or other similar laws affecting or limiting the enforcement of
creditors' rights generally and except as such enforceability is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
3.3 ABSENCE OF CONFLICTING AGREEMENTS. Subject to obtaining the
Consents listed on SCHEDULE 3.3, the Norwell FCC Consent and the FCC Consent,
subject to providing the Trusts with sufficient notice of the Closing under
Florida law, and subject to the termination or expiration of the waiting period
under the HSR Act applicable to the transactions contemplated hereby, the
execution, delivery, and performance of this Agreement and the Seller Ancillary
Agreements (with or without the giving of notice, the lapse of time, or both):
(i) do not require the consent of any third party; (ii) will not conflict with
any provision of the Trust Agreements or the Articles of Incorporation or Bylaws
of the Company or any Subsidiary; (iii) will not conflict with, result in a
breach of, or constitute a default under, any law, judgment, order, ordinance,
injunction, decree, rule, regulation, or ruling of any court or governmental
instrumentality applicable to any Seller, the Company or any Subsidiary; (iv)
will not conflict with, constitute grounds for termination of, result in a
breach of, constitute a default under, or accelerate or permit the acceleration
of any performance required by the terms of, any agreement, instrument, license,
or permit to which any Seller, the Company or any Subsidiary is a party or by
which any Seller, the Company or any Subsidiary may be bound, except for such
conflicts, terminations, breaches, defaults or accelerations that have not had
and could not reasonably be expected to have a Company Material Adverse Effect;
and (v) will not create any claim, liability, mortgage, lien, pledge, condition,
charge, or encumbrance of any nature whatsoever upon any of the Assets or the
Stock.
3.4 LICENSES. SCHEDULE 3.4 is a true and complete list of each FCC
License and each other License that is material to the business or operations of
each Station. Sellers shall deliver to Buyer true and complete copies of the
Licenses (including any amendments and other modifications thereto), except
Licenses of auxiliary stations, listed on SCHEDULE 3.4. The Licenses listed on
SCHEDULE 3.4 have been validly issued to the respective License Subsidiary
identified on SCHEDULE 3.4, and each such License Subsidiary is the authorized
legal holder thereof. The Licenses listed on SCHEDULE 3.4 comprise all of the
Licenses required from any governmental or regulatory authority for the lawful
conduct of the business and operations of each Station in the manner and to the
full extent they are now conducted, except for such Licenses the failure of
which to obtain have not had and could not reasonably be expected to have a
Company Material Adverse Effect. None of the Licenses listed on SCHEDULE 3.4 is
subject to any restriction or condition that would limit the operation of any
Station as now operated, other than such restrictions or conditions that appear
on the face of such Licenses or are generally applicable to television
broadcasting stations under the rules and regulations of the FCC. The Licenses
listed on SCHEDULE 3.4 are in full force and effect, and the conduct of the
business and operations of each Station is in accordance therewith, except for
such noncompliance that have not had and could not reasonably be expected to
have a Company Material Adverse Effect. Sellers have no reason to believe that
any of the FCC Licenses would
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not be renewed by the FCC in the ordinary course. No action is pending or, to
the best knowledge of the Company, threatened by or before the FCC to revoke,
terminate or modify in any materially adverse respect any of the FCC Licenses,
and there is no order to show cause, notice of violation, notice of apparent
liability or notice of forfeiture outstanding or, to the best knowledge of the
Company, threatened with respect to any Station. Except as set forth on
SCHEDULE 3.4, Sellers require no waiver of any FCC rule or policy to obtain the
FCC Consent.
3.5 CONTRACTS. SCHEDULE 3.5 is a true and complete list of all
Contracts, other than Contracts entered into by any Subsidiary in the ordinary
course of business, prior to the date hereof (i) for the sale of advertising
time on the Stations for cash at rates consistent with past practices that can
be terminated by a Station without premium or penalty on no more than thirty
(30) days notice (it being understood that SCHEDULE 3.5 shall include a list of
all long-form advertising and other program time sales Contracts in effect on
the date hereof) and (ii) other than the Contracts described in clause (i),
Contracts that do not involve obligations or liabilities in excess of Five
Thousand Dollars ($5,000) for each such Contract and Fifty Thousand Dollars
($50,000) for all such Contracts in the aggregate. The Company shall deliver to
Buyer true and complete copies of all written Contracts and true and complete
memoranda of all oral Contracts (including any amendments and other
modifications to such Contracts) listed on SCHEDULE 3.5. Other than the
Contracts listed on SCHEDULE 3.5 or any other SCHEDULE to this Agreement and the
Contracts that are not required to be listed on SCHEDULE 3.5, and except as
noted on SCHEDULE 3.5, neither the Company nor any Subsidiary requires any
contract, lease, or other agreement to enable it to carry on its business as now
conducted. All of the Contracts are in full force and effect. There is not under
any Contract any default by the Company or any Subsidiary or, to the best
knowledge of the Company, any other party thereto or any event that, after
notice or lapse of time, or both, could constitute a default, except for such
defaults that have not had and could not reasonably be expected to have a
Company Material Adverse Effect. The Company is not aware of any intention by
any party to any Contract (i) to terminate such contract or amend the terms
thereof, (ii) to refuse to renew the Contract upon expiration of its term, or
(iii) to renew the Contract upon expiration only on terms and conditions which
are more onerous than those now existing.
3.6 CONSENTS. Except for Consents described in SCHEDULE 3.3, the
Norwell FCC Consent, the FCC Consent and the expiration or termination of any
waiting period required under the HSR Act, no consent, approval, permit, or
authorization of, or declaration to or filing with any governmental or
regulatory authority, or any other third party is required (i) to consummate
this Agreement and the transactions contemplated hereby, (ii) to permit Sellers
to transfer the Stock to Buyer, or (iii) to enable Buyer to conduct the business
and operations of each Station (other than WWDP(TV)) in essentially the same
manner as such business and operations are now conducted.
3.7 REPORTS. All material returns, reports, and statements required to
be filed by the Company or any Subsidiary with the FCC have been filed, and all
reporting requirements of the FCC and other governmental authorities having
jurisdiction over the Company, each Subsidiary and each Station have been
complied with by the Company or such Subsidiary, except for such noncompliance
that have not had and could not reasonably be expected to have a Company
Material Adverse Effect. All of such returns, reports, and statements are
substantially complete
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and correct as filed. All annual regulatory fees payable with respect to the
FCC Licenses have been timely paid to the FCC.
3.8 TAXES.
(a) The Company has filed or has caused to be filed in a timely
manner all required Tax Returns with the appropriate governmental authorities in
all jurisdictions in which such Tax Returns are required to be filed by the
Company and its Subsidiaries (except Tax Returns listed on SCHEDULE 3.8 for
which the filing date has been extended and such extension period has not
expired), and all Taxes shown on such Tax Returns have been properly accrued or
paid to the extent such Taxes have become due and payable. The Company shall
deliver to Buyer true, correct and complete copies of the Tax Returns (in the
form filed) listed in SCHEDULE 3.8. The Financial Statements reflect an adequate
reserve in accordance with GAAP (without regard to any amounts reserved for
deferred taxes) for all unpaid Taxes payable by the Company and its Subsidiaries
for all Tax periods and portions thereof through the date of such Financial
Statements.
(b) Except as disclosed in SCHEDULE 3.8, the Company and its
Subsidiaries have not executed any waiver or extension of any statute of
limitations on the assessment or collection of any Tax or with respect to any
liability arising therefrom. Except as disclosed in SCHEDULE 3.8, none of the
federal, state or local income Tax Returns filed by the Company and its
Subsidiaries has been audited by any taxing authority. Except as disclosed in
SCHEDULE 3.8, (i) neither the IRS nor any other taxing authority is asserting,
or threatening to assert any deficiency or claim for additional Taxes against,
or any adjustment of Taxes relating to, the Company and its Subsidiaries and no
basis exists for any such deficiency, claim or adjustment, and (ii) there are no
proposed reassessments of any property owned by the Company and its Subsidiaries
or other proposals that could affect the Taxes of the Company and its
Subsidiaries. There are no material Tax liens on any assets of the Company and
its Subsidiaries, other than liens for current Taxes not yet due and payable and
liens for Taxes that are being contested in good faith by appropriate
proceedings.
(c) Except as disclosed in SCHEDULE 3.8, (i) neither the Company
nor any Subsidiary has any liability for the Taxes of any Person pursuant to
Section 1.1502-6 of the Treasury Regulations promulgated under the Internal
Revenue Code, any comparable provisions of any state, local or foreign Tax law
in respect of a consolidated, combined or unitary Tax Return, or by contract or
otherwise, (ii) neither the Company nor any Subsidiary has any income or gain
reportable for a period ending after the Closing Date but attributable to a
transaction (e.g., an installment sale) occurring in, or a change in accounting
method made for, a taxable period ending on or prior to the Closing Date which
resulted in a deferred reporting of income or gain from such transaction or from
such change in accounting method, and (iii) each of the Company and the
Subsidiaries, except for Channel 66 and Norwell License which have been taxable
as "C corporations," has been taxable as an "S corporation" within the meaning
of Section 1361(a) of the Internal Revenue Code since January 1, 1997, and prior
to such date, the Company was taxable as a "C corporation." As of the Closing,
there will be no tax sharing agreements or similar arrangements in effect with
respect to or involving the Company or any Subsidiary.
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3.9 CLAIMS AND LEGAL ACTIONS. Except as listed on SCHEDULE 3.9 and
proceedings generally affecting the broadcast industry, there is no claim, legal
action, counterclaim, suit, arbitration, governmental investigation or other
legal or administrative proceeding, nor any order, decree or judgment, in
progress or pending or, to the best knowledge of Sellers and the Company,
threatened against or relating to any Seller, the Company or any Subsidiary with
respect to the Assets or the Stock nor do Sellers and the Company know or have
reason to be aware of any basis for the same.
3.10 COMPLIANCE WITH LAWS. The Company and each Subsidiary have
complied with the Licenses and all federal, state, and local laws, rules,
regulations, and ordinances applicable or relating to the ownership and
operation of the Assets and each Station, except for such noncompliance that
have not had and could not reasonably be expected to have a Company Material
Adverse Effect. To the best knowledge of the Company, neither the ownership or
use of the Assets nor the conduct of the business or operations of any Station
as currently conducted conflicts with the rights of any other person or entity.
3.11 INSURANCE. SCHEDULE 3.11 is a true and complete list in all
material respects of all insurance policies of the Company and each Subsidiary
that insure any part of the Assets or the business of a Station. All policies of
insurance listed in SCHEDULE 3.11 are in full force and effect.
3.12 REAL PROPERTY INTERESTS. SCHEDULE 3.12 contains a complete and
accurate description, in all material respects, of the Real Property Interests.
The Real Property Interests listed on SCHEDULE 3.12 comprise all material real
property interests necessary to conduct the business and operations of each
Station as now conducted. Each Subsidiary, as applicable, has good and
marketable fee simple title, insurable at standard rates, to all fee estates
(including the improvements thereon) included in the Real Property Interests,
free and clear of all liens, mortgages, pledges, covenants, easements and other
claims and encumbrances, except for liens for real estate taxes not yet due and
payable and liens granted to Buyer pursuant to the Loan Documents. With respect
to each leasehold interest included in the Real Property Interests, so long as
the applicable Subsidiary fulfills its obligations under the lease therefor,
such Subsidiary has enforceable rights to nondisturbance and quiet enjoyment.
All towers, guy anchors, and buildings and other improvements included in the
Assets are located entirely on the Real Property Interests. Sellers shall
deliver to Buyer true and complete copies of all deeds pertaining to the Real
Property Interests. To the best knowledge of Sellers, all Real Property
Interests (including the improvements thereon) are in good condition and repair
(ordinary wear and tear excepted) consistent with its present use.
3.13 TITLE TO PROPERTIES. Except as disclosed in SCHEDULE 3.13, each
Seller has good and marketable title to the Stock owned by him or it and the
Company or the Subsidiaries, as applicable, have good and marketable title to
all of the Assets, and the Stock and Assets are subject to no mortgages,
pledges, liens, security interests, encumbrances, or other charges or rights of
others of any kind or nature except for liens for current taxes not yet due and
payable and liens granted to Buyer pursuant to the Loan Documents.
3.14 FINANCIAL STATEMENTS. The Company shall furnish Buyer with true
and complete copies of audited financial statements of the Company and each
Subsidiary containing audited
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financial statements for the fiscal year ended December 31, 1999, and an
unaudited balance sheet for the two (2) months ended February 29, 2000
(collectively, the "Financial Statements"). The audited Financial Statements
have been prepared from the books and records of the Company and each
Subsidiary, have been prepared in accordance with GAAP and maintained throughout
the periods indicated, accurately reflect in all material respects the books,
records, and accounts of the Company and each Subsidiary (which books, records,
and accounts are complete and correct in all material respects), and present
fairly in all material respects the financial condition of the Company and each
Subsidiary as of their respective dates and the results of operations for the
periods then ended. The unaudited Financial Statements have been prepared from
the books and records of the Company and each Subsidiary, have been prepared in
a manner consistent with the audited Financial Statements, accurately reflect in
all material respects the books, records, and accounts of the Company and each
Subsidiary, and present fairly in all material respects the financial condition
of the Company and each Subsidiary as of their respective dates and the results
of operations for the periods then ended.
3.15 UNDISCLOSED LIABILITIES. Except as disclosed on SCHEDULE 3.15,
neither the Company nor any Subsidiary has any material debt, liability or
obligation, whether accrued, absolute, contingent or otherwise, including any
liability or obligation on account of taxes or any governmental charges,
penalty, interest or fines, except: (i) those liabilities reflected in the
Financial Statements; or (ii) liabilities incurred in the ordinary course of
business (other than contingent liabilities) since December 31, 1999, that do
not exceed in the aggregate Fifty Thousand Dollars ($50,000).
3.16 ACCOUNTS RECEIVABLE. All Accounts Receivable have arisen from bona
fide transactions in the ordinary course of business. Assuming that commercially
reasonable efforts are made to collect the Accounts Receivable, all Accounts
Receivable reflected on the Financial Statements are good and collectible in the
ordinary course of business at the aggregate recorded amounts thereof, net of
doubtful accounts.
3.17 CAPITAL. The shareholders of the Company have contributed to the
Company capital contributions in cash in an aggregate amount of no less than
Seven Million Five Hundred Thousand Dollars ($7,500,000), and no portion of such
capital contributions have been distributed by the Company as of the date
hereof.
3.18 TANGIBLE PERSONAL PROPERTY. SCHEDULE 3.18 sets forth an accurate
and complete list in all material respects of all material items of Tangible
Personal Property. The Tangible Personal Property listed on SCHEDULE 3.18
comprises all material items of tangible personal property necessary to conduct
the business and operations of each Station as now conducted. The Company or
each Subsidiary, as applicable, owns and has good title to each item of Tangible
Personal Property, and none of the Tangible Personal Property is subject to any
lien, charge or encumbrance, other than liens for current taxes not yet due and
payable and the liens granted to Buyer pursuant to the Loan Documents. Each item
of Tangible Personal Property listed on SCHEDULE 3.18 is available for immediate
use in the business and operations of each Station. All items of transmitting
and studio equipment included in the Tangible Personal Property listed on
SCHEDULE 3.18 (i) have been maintained in a manner consistent with generally
accepted standards of good engineering practice and (ii) will permit each
Station and any auxiliary broadcast facilities related to each Station to
operate in accordance with the terms of
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the FCC Licenses and the rules and regulations of the FCC and with all other
applicable federal, state and local statutes, rules and regulations, except for
such noncompliance that have not had and could not reasonably be expected to
have a Company Material Adverse Effect.
3.19 LOAN DOCUMENTS. The Loan Documents are in full force and, to the
best knowledge of the Company, there exists no Event of Default (as defined in
the Credit Agreement) under the Loan Documents or any event which, with the
lapse of any applicable grace period or the giving of notice, or both, would
constitute an Event of Default under the Loan Documents.
3.20 ENVIRONMENTAL MATTERS.
(a) To the best knowledge of the Company, the Company and the
Subsidiaries have complied with all laws, rules, and regulations of all federal,
state, and local governments (and all agencies thereof) concerning the
environment, public health and safety, and employee health and safety, except
for such noncompliance that has not had and could not reasonably be expected to
have a Company Material Adverse Effect, and no charge, complaint, action, suit,
proceeding, hearing, investigation, claim, demand, or notice has been filed or
commenced against the Company or any Subsidiary in connection with the ownership
or operation of a Station alleging any failure to comply with any such law,
rule, or regulation.
(b) To the best knowledge of the Company, based solely on
environmental surveys conducted by Dames & Xxxxx for the Company, true and
complete copies of such surveys have been delivered to Buyer, neither the
Company nor any Subsidiary has any liability relating to its ownership and
operation of a Station (and there is no basis related to the past or present
operations, properties, or facilities of the Company or any Subsidiary for any
present or future charge, complaint, action, suit, proceeding, hearing,
investigation, claim, or demand against the Company or any Subsidiary giving
rise to any such liability) under any law, rule, or regulation of any federal,
state, or local government (or agency thereof) concerning release or threatened
release of hazardous substances, public health and safety, or pollution or
protection of the environment, except for such liability has not had and that
could not reasonably be expected to have a Company Material Adverse Effect.
(c) To the best knowledge of the Company, based solely on
environmental surveys conducted by Dames & Xxxxx for the Company, true and
complete copies of such surveys have been delivered to Buyer, neither the
Company nor any Subsidiary has any liability relating to its ownership and
operation of a Station (and neither the Company nor any Subsidiary has handled
or disposed of any substance, arranged for the disposal of any substance, or
owned or operated any property or facility in any manner that could form the
basis for any present or future charge, complaint, action, suit, proceeding,
hearing, investigation, claim, or demand (under the common law or pursuant to
any statute) against the Company or any Subsidiary giving rise to any such
liability) for damage to any site, location, or body of water (surface of
subsurface), except for such liability that has not had and could not reasonably
be expected to have a Company Material Adverse Effect.
(d) To the best knowledge of the Company, based solely on
environmental surveys conducted by Dames & Xxxxx for the Company, true and
complete copies of such
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surveys have been delivered to Buyer, neither the Company nor any Subsidiary
has any liability relating to its ownership and operation of a Station (and
neither the Company nor any Subsidiary has exposed any employee to any
substance or condition that could form the basis for any present or future
charge, complaint, action, suit, proceeding, hearing, investigation, claim, or
demand (under the common law or pursuant to statute) against the Company or any
Subsidiary giving rise to any such liability) for any illness or personal
injury to any employee, except for such liability that has not had and could
not reasonably be expected to have a Company Material Adverse Effect.
(e) To the best knowledge of the Company, in connection with its
ownership or operation of each Station, the Company and each Subsidiary, as
applicable, has obtained and complied with all of the terms and conditions of
all permits, licenses, and other authorizations which are required under, and
has complied with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules, and timetables which are
contained in, all federal, state, and local laws, rules, and regulations
(including all codes, plans, judgments, orders, decrees, stipulations,
injunctions, and charges thereunder) relating to public health and safety,
worker health and safety, and pollution or protection of the environment,
including laws relating to emissions, discharges, releases, or threatened
releases of pollutants, contaminants, or chemical, industrial, hazardous, or
toxic materials or wastes into ambient air, surface water, ground water, or
lands or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes,
except for such noncompliance that has not had and could not reasonably be
expected to have a Company Material Adverse Effect.
(f) No pollutant, contaminant, or chemical, industrial, hazardous,
or toxic material or waste has ever been manufactured, buried, stored, spilled,
leaked, discharged, emitted, or released in any material amount by the Company
or any Subsidiary in connection with its ownership and operation of a Station.
3.21 PERSONNEL AND BENEFITS; LABOR.
(a) All Employee Plans and Compensation Arrangements (as defined
in subsection (d) below) of the Company or any Subsidiary are listed in SCHEDULE
3.21, and complete and accurate copies of any such written Employee Plans and
Compensation Arrangements (or related insurance policies) shall be furnished to
Buyer, along with copies of any employee handbooks or similar documents
describing such Employee Plans and Compensation Arrangements. SCHEDULE 3.21 also
contains a true and complete list in all material respects of all employees of
each Station, their job description, date of hire and salary.
(b) Except as set forth on SCHEDULE 3.21, each Employee Plan and
Compensation Arrangement has been administered in compliance in all material
respects with its own terms and with the provisions of ERISA (as defined in
subsection (d) below), the Code, the Age Discrimination in Employment Act and
any other applicable federal or state laws. Neither the Company nor any
Subsidiary is aware of the existence of any governmental audit or examination of
any Employee Plan or Compensation Arrangement or of any facts which would
reasonably lead the Company or such Subsidiary to believe that any such audit or
examination is pending or threatened. No action, suit or claim (other than
routine claims for benefits) with
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respect to any Employee Plan or Compensation Arrangement is pending or, to the
best knowledge of the Company or its Subsidiaries, threatened.
(c) Except as set forth on SCHEDULE 3.21, neither the Company nor
any Subsidiary contributes to or is required to contribute to any Multi-employer
Plan (as defined in subsection (d) below) with respect to the employees of a
Station.
(d) For purposes of this Agreement, the following terms shall have
the meaning indicated: (i) "Employee Plan" shall mean any pension,
profit-sharing, deferred compensation, vacation, bonus, incentive, medical,
vision, dental, disability, life insurance or any other employee benefit plan as
defined in Section 3(3) of ERISA to which the Company, a Subsidiary or any
entity related to the Company (under the terms of Section 414(b), (c), (m) or
(o) of the Code) contributes or to which the Company, a Subsidiary or any entity
related to the Company (under the terms of Sections 414(b), (c), (m) or (o) of
the Code) sponsors, maintains or otherwise is bound which provides benefits to
persons employed or previously employed at a Station; (ii) "Code" shall mean the
Internal Revenue Code of 1986, as amended, any successor thereto and any
regulations promulgated thereunder; (iii) "Compensation Arrangement" shall mean
any plan or compensation arrangement other than an Employee Plan, whether
written or unwritten, which provides to employees, former employees, officers,
directors and shareholders of the Company, any Subsidiary or any entity related
to the Company (under the terms of Section 414(b), (c), (m) or (o) of the Code)
employed or previously employed at each Station any compensation or other
benefits, whether deferred or not, in excess of base salary or wages, including,
but not limited to, any bonus or incentive plan, stock rights plan, deferred
compensation arrangement, life insurance, stock purchase plan, severance pay
plan and any other employee fringe benefit plan; (iv) "ERISA" shall mean the
Employee Retirement Income Security Act of 1974, as amended, any successor
thereto and any regulations promulgated thereunder; and (v) "Multi-employer
Plan" means a plan, as defined in ERISA Section 3(37), to which the Company, any
Subsidiary or any entity related to the Company (under the terms of Section
414(b) or (c) of the Code) contributes or is required to contribute.
(e) Except as set forth on SCHEDULE 3.21, neither the Company nor
any Subsidiary is a party or subject to any collective bargaining agreement with
respect to any Station. Neither the Company nor any Subsidiary has any written
or oral contracts of employment with any employee of any Station, other than
those listed in SCHEDULE 3.21. To the best knowledge of the Company, the Company
and each Subsidiary has complied in all material respects with all laws, rules,
and regulations relating to the employment of labor, including those related to
wages, hours, collective bargaining, occupational safety, discrimination, and
the payment of social security and other payroll related taxes, except for such
noncompliance that has not had and could not reasonably be expected to have a
Company Material Adverse Effect, and neither the Company nor any Subsidiary has
received any notice alleging that it has failed to comply in any material
respect with any such laws, rules, or regulations. Except as set forth on
SCHEDULE 3.21, no controversies, disputes, or proceedings are pending or, to the
best knowledge of the Company, threatened, between the Company or a Subsidiary
and any employee (singly or collectively) of any Station. No labor union or
other collective bargaining unit represents or claims to represent any of the
employees of any Station. To the best knowledge of the Company, there is no
union campaign being conducted to represent any employees of any Station or to
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solicit cards from employees to authorize a union to request a National Labor
Relations Board certification election with respect to any employees at any
Station.
3.22 INTANGIBLES. SCHEDULE 3.22 is a true and complete list in all
material respects of all material Intangibles (exclusive of those listed in
SCHEDULE 3.4), all of which are valid and uncontested and free and clear of
liens, charges or other encumbrances other than liens granted to Buyer pursuant
to the Loan Documents. To the best knowledge of the Company, neither the Company
nor any Subsidiary is infringing upon or otherwise acting adversely to any
trademarks, trade names, service marks, service names, copyrights, patents,
patent applications, know-how, methods, or processes owned by any other person
or persons, and there is no claim or action pending or, to the best knowledge of
the Company, threatened with respect thereto. The Intangibles listed on SCHEDULE
3.22 comprise all material intangible property interests necessary to conduct
the business and operations of each Station as now conducted.
3.23 STOCK. As of the date hereof, no shares of the capital stock of
the Company or any Subsidiary are held in the treasury. Except as noted in
SCHEDULE 3.23, there are no outstanding options, conversion rights, warrants, or
other rights in existence to acquire from the Company or any Subsidiary any of
its shares of capital stock. SCHEDULE 3.23 is an accurate and complete list of
the registered holders of the Stock. The Stock represents all the issued and
outstanding shares of capital stock of the Company and all such shares have been
duly and validly issued and are fully paid and nonassessable and are not subject
to any preemptive rights. Except for the Trust Agreements and the Loan
Documents, there are no voting trust agreements or other contracts, agreements,
or arrangements restricting voting or dividend rights or transferability with
respect to the Stock or otherwise relating to the Stock. Neither the Company nor
any Subsidiary has violated any federal, foreign, state, or local law,
ordinance, rule, or regulation in connection with the offer for sale or sale and
issuance of its outstanding shares of capital stock. Each Seller owns and has
beneficial and record title to the Stock owned by it or him, free and clear of
any mortgages, liens, claims, charges, encumbrances, assessments, or other
adverse interests of any kind or nature whatsoever, other than liens granted to
Buyer pursuant to the Loan Documents.
3.24 BANK ACCOUNTS; POWERS OF ATTORNEY. The Company shall provide to
Buyer a correct and complete list of all accounts or deposits of the Company and
each Subsidiary with banks or other financial institutions, safe deposit boxes
of the Company and each Subsidiary, persons authorized to sign or otherwise act
with respect thereto as of the date hereof, and powers of attorney for the
Company and each Subsidiary. No change in such accounts or deposits, safe
deposit boxes or persons authorized to sign will be made prior to the Closing
other than changes in the ordinary course of business consistent with past
practice.
3.25 EXCHANGE ACT; INVESTMENT COMPANY ACT. No securities of the Company
or any Subsidiary are required to be registered under Section 12 of the
Securities and Exchange Act of 1934, as amended. Neither the Company nor any
Subsidiary is an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
3.26 FULL DISCLOSURE. No representation or warranty made by Sellers in
this Agreement or in any certificate, document, or other instrument furnished or
to be furnished by Sellers or the Company pursuant hereto contains or will
contain any untrue statement of a material fact, or
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omits or will omit to state any material fact and required to make any
statement made herein or therein not misleading.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Sellers as follows:
4.1 ORGANIZATION, STANDING, AND AUTHORITY. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware. Buyer has all requisite power and authority to execute and deliver
this Agreement and the documents contemplated hereby, and to perform and comply
with all of the terms, covenants, and conditions to be performed and complied
with by Buyer hereunder.
4.2 AUTHORIZATION AND BINDING OBLIGATION. The execution, delivery, and
performance of this Agreement and the Buyer Ancillary Agreements by Buyer have
been duly authorized and approved by all necessary actions on the part of Buyer.
This Agreement and the Buyer Ancillary Agreements have been duly executed and
delivered by Buyer and constitute the legal, valid, and binding obligations of
Buyer, enforceable against Buyer in accordance with their terms, except as the
enforceability of this Agreement may be affected by bankruptcy, insolvency, or
similar laws affecting creditors' rights generally and, except as such
enforceability is subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
4.3 ABSENCE OF CONFLICTING AGREEMENTS. Subject to obtaining the
Consents listed on SCHEDULE 4.3, the Norwell FCC Consent and the FCC Consent,
and subject to the termination or expiration of the waiting period under the HSR
Act applicable to the transactions contemplated hereby, the execution, delivery,
and performance by Buyer of this Agreement and the Buyer Ancillary Agreements
(with or without the giving of notice, the lapse of time, or both): (i) do not
require the consent of any third party; (ii) will not conflict with the
Certificate of Incorporation or Bylaws of Buyer; (iii) will not conflict with,
result in a breach of, or constitute a default under, any law, judgment, order,
injunction, decree, rule, regulation, or ruling of any court or governmental
instrumentality; or (iv) will not conflict with, constitute grounds for
termination of, result in a breach of, constitute a default under, or accelerate
or permit the acceleration of any performance required by the terms of, any
agreement, instrument, license, or permit to which Buyer is a party or by which
Buyer may be bound, such that Buyer could not acquire the Stock.
4.4 BUYER QUALIFICATIONS. Subject to receipt of the waivers described
on SCHEDULE 4.3, Buyer is legally, financially and otherwise qualified to
acquire and own the Stock.
4.5 INVESTMENT PURPOSE. Buyer is acquiring the Stock for investment for
its own account and not with a view to the sale or distribution of any part
thereof, and, not including collateral assignments or pledges of the Stock for
financing purposes, Buyer has no present intention of selling, granting
participation in, or otherwise distributing the Stock.
4.6 FULL DISCLOSURE. No representation or warranty made by Buyer in
this Agreement or in any certificate, document, or other instrument furnished or
to be furnished by Buyer pursuant hereto contains or will contain any untrue
statement of a material fact, or omits or will
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omit to state any material fact and required to make any statement made herein
or therein not misleading.
SECTION 5. OPERATIONS PRIOR TO CLOSING
5.1 GENERALLY. Between the date of this Agreement and the Closing Date,
the Company and each Subsidiary shall operate the business of the Stations
diligently in the ordinary course of business in accordance with its past
practices (except where such conduct would conflict with the following covenants
or with the Company's or Subsidiaries' other obligations under this Agreement
and the Loan Documents and except where such conduct has been expressly
delegated to Buyer under the terms of the Time Brokerage Agreements, the Boston
Affiliation Agreement or Programming Agreement), and in accordance with the
other covenants in this Section 5.
5.2 COMPENSATION. The Company shall not increase in any respect the
compensation, bonuses, or other benefits payable or to be payable to any person
employed in connection with the conduct of the business of the Stations, except
in the ordinary course of business consistent with past practices.
5.3 CONTRACTS. Except for Permitted Contracts, neither the Company nor
any Subsidiary shall, without the prior written consent of Buyer, which consent
shall not be unreasonably withheld, (i) enter into any contract or commitment
relating to the Assets or the business or operations of the Stations, (ii) amend
or terminate any Contract (or waive any material right thereunder), or (iii)
incur any obligation (including obligations relating to the borrowing of money
or the guaranteeing of indebtedness) that will not be satisfied prior to or on
the Closing Date. Prior to the Closing Date, the Company shall deliver to Buyer
a list of all Contracts entered into between the date of this Agreement and the
Closing Date, together with copies of such Contracts.
5.4 DISPOSITION OF ASSETS. Except in connection with the transactions
contemplated by Section 6.8, neither the Company nor any Subsidiary shall sell,
assign, lease, or otherwise transfer or dispose of any of the Assets that,
individually or in the aggregate, are valued at the time of disposition in
excess of Fifteen Thousand Dollars ($15,000).
5.5 ENCUMBRANCES. The Company shall not create, assume or permit to
exist any claim, liability, mortgage, lien, pledge, condition, charge, or
encumbrance of any nature whatsoever upon the Assets, except for (i) liens and
liabilities arising under the Loan Documents, (ii) liens for current taxes not
yet due and payable, (iii) mechanics' liens and other similar liens created in
the ordinary course of business that do not adversely affect in any material
respect the value or current use and enjoyment of the Assets, and (iv) existing
encumbrances (other than encumbrances securing monetary obligations) on certain
Real Property Interests which do not adversely affect the use or value of the
Real Property Interests.
5.6 RIGHTS. The Company shall not knowingly waive any material right
relating to any of the Assets.
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5.7 INSURANCE. The Company shall maintain in full force and effect
policies of insurance of the same type, character, and coverage as the policies
currently carried with respect to the business, operations and assets of the
Company and each Subsidiary.
5.8 ACCESS TO INFORMATION. The Company shall give Buyer and its
authorized representatives reasonable access to the Assets and to all other
properties, equipment, books, records of the Stations, for the purpose of audit
and inspection.
5.9 CONSENTS. The Company shall use commercially reasonable efforts to
obtain the Consents without any change in the terms or conditions of any
Contract or the License to which any Consent relates that could be materially
less advantageous to the Company than those pertaining under the Contract or
License as in effect on the date of this Agreement. The Company shall promptly
advise Buyer of any difficulties experienced in obtaining any of the Consents
and of any conditions proposed, considered, or requested for any of the
Consents. Upon Buyer's request, the Company shall cooperate with Buyer and use
its commercially reasonable efforts to obtain from the lessors under each lease
included in the Real Property Interests such estoppel certificates as Buyer may
request.
5.10 BOOKS AND RECORDS. The Company and each Subsidiary shall maintain
its books and records substantially in accordance with past practices.
5.11 COMPLIANCE WITH LAWS. The Company and each Subsidiary shall comply
with all laws, rules, and regulations applicable or relating to the Assets or
the ownership and operation of the Stations, except for such noncompliance that
could not reasonably be expected to have a Company Material Adverse Effect.
5.12 MERGERS. Neither the Company nor any Subsidiary shall reorganize,
liquidate or merge or consolidate with any other entity.
5.13 INDEBTEDNESS AND OBLIGATIONS. Except for indebtedness under the
Loan Documents, neither the Company nor any Subsidiary shall incur indebtedness
for borrowed money. The Company and each Subsidiary shall pay all of its
respective obligations as such obligations become due, consistent with past
practices, so that all such obligations shall be current, consistent with past
practices, as of the Closing Date. Without limiting the generality of the
foregoing, the Company and each Subsidiary shall perform their respective
obligations under the Loan Documents.
5.14 AMENDMENTS. Neither the Company nor any Subsidiary shall amend,
change, or modify its Articles of Incorporation or Bylaws.
5.15 SECURITIES. Except as provided in the Loan Documents, no Seller
will, and will not agree to, sell or grant any options, warrants or other rights
to acquire any of its shares of Stock and neither the Company nor any Subsidiary
will, and will not agree to, (a) issue, sell, or otherwise dispose of any of its
shares of capital stock; (b) acquire (through redemption or otherwise) any of
its shares of capital stock; (c) grant any options, warrants, or other rights to
acquire any of its shares of capital stock; or (d) issue, sell, or otherwise
dispose of any stock options, bonds, notes, or other securities. Notwithstanding
the foregoing or any other provision in this Agreement to the contrary, the
Trusts may sell all of the Stock held by the Trusts to
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Roslyck Xxxxxx, Xxxxx Xxxxxx or both of them (a "Trusts Sale"), subject,
however, to the following requirements. The Trusts shall convey to Xxxxx Xxxxxx,
Roslyck Xxxxxx or both of them, pursuant to conveyancing documents reasonably
acceptable to Buyer, all of their right, title and interest in the Stock free
and clear of any claims, liabilities, security interests, mortgages, liens,
pledges, conditions, charges or encumbrances of any nature whatsoever, other
than liens granted to Buyer pursuant to the Loan Documents. Following the
consummation of any Trusts Sale, the Trusts shall have no further rights or
interests hereunder or under any Seller Ancillary Agreements, and Xxxxx Xxxxxx,
Roslyck Xxxxxx or both of them shall sell, transfer and deliver to Buyer on the
Closing Date the Stock acquired by them in any Trusts Sale in accordance with
the terms and conditions hereof, and shall perform all other obligations of the
Trusts hereunder with respect to such Stock, as if they owned such Stock upon
the execution and delivery of this Agreement. Each Seller acknowledges and
agrees that no Seller, any of their respective Affiliates or any other Person
shall have any recourse whatsoever, whether hereunder or under any other
documents or instruments, against Buyer, its Affiliates or any current or future
director, officer, employee or agent of Buyer, whether by legal or equitable
proceeding or arbitration, by virtue of any statute, regulation or other
applicable law, or otherwise arising out of or relating in any way to any Trusts
Sale. Upon the consummation of any Trusts Sale, Buyer, Xxxxx Xxxxxx and Roslyck
Xxxxxx shall enter into one or more appropriate amendments to such Buyer
Ancillary Agreements and Seller Ancillary Agreements as may be required to
reflect the Trusts Sale in accordance with the terms of this Section 5.15.
5.16 MAINTENANCE OF ASSETS. The Company and each Subsidiary shall
maintain all of the Assets in good condition (ordinary wear and tear excepted),
consistent with their overall condition on the date of this Agreement, and use,
operate and maintain all of the Assets in a reasonable manner. If any loss,
damage, impairment, confiscation, or condemnation of or to any of the Assets
occurs, other than any loss, damage or impairment resulting from actions taken
by Buyer or its Affiliates under the Time Brokerage Agreements, Boston
Affiliation Agreement or Programming Agreement, the Company and each Subsidiary
shall, at the discretion of Buyer, repair, replace, or restore the Assets to
their prior condition as represented in this Agreement as soon thereafter as
possible, and the Company and each Subsidiary shall use the proceeds of any
claim under any insurance policy to repair, replace, or restore any of the
Assets that are lost, damaged, impaired, or destroyed.
5.17 PRESERVATION OF BUSINESS. The Company and each Subsidiary shall
use commercially reasonable efforts consistent with its past practices to
preserve the business and organization of the Stations not expressly delegated
to Buyer under the Time Brokerage Agreements, Boston Affiliation Agreement and
Programming Agreement and use its commercially reasonable efforts to keep
available to the Stations their present employees and to preserve the audience
of the Stations and the Stations' present relationships with suppliers,
advertisers, and others having business relations with the Stations.
5.18 LICENSES. Neither the Company nor any Subsidiary shall cause or
permit, by any act or failure to act, any of the Licenses to expire or to be
revoked, suspended or adversely modified or take any action that could
reasonably be expected to cause the FCC or any other governmental authority to
institute proceedings for the suspension, revocation or adverse modification of
any of the Licenses. Each Subsidiary shall prosecute with due diligence any
applications to any governmental authority in connection with the operation of a
Station.
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5.19 NO INCONSISTENT ACTION. Neither Sellers, Buyer, the Company, nor
any Subsidiary shall take any action that is inconsistent with their respective
obligations under this Agreement, the Seller Ancillary Agreements, or the Buyer
Ancillary Agreements, as applicable, or that could hinder or delay in any
material respect the consummation of the transactions contemplated hereby or
thereby. Without limiting the generality of the foregoing, each Seller and the
Company covenants that he or it will not (a) solicit, initiate or encourage the
submission of any proposal or offer relating to any (i) liquidation, dissolution
or recapitalization, (ii) merger or consolidation, (iii) pledge, acquisition or
sale of the Stock or other securities, (iv) transfer or assignment of any FCC
License, (v) sale, lease or disposition of substantially all of the Assets, or
(vi) similar transaction or business combination, in each case involving the
Company or any Subsidiary, or (b) participate in any discussions or negotiations
regarding, furnish any information with respect to, assist or participate in, or
facilitate in any other manner any effort or attempt by any party to do or seek
any of the foregoing.
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC CONSENT.
(a) The sale of the Stock as contemplated by this Agreement is
subject to the prior consent and approval of the FCC.
(b) Sellers and Buyer shall prepare and, as soon as
practicable following April 3, 2000, file with the FCC such pro forma
applications and amendments as may be necessary or appropriate to obtain, as
expeditiously as possible, FCC consent to the transfer of control of the FCC
Licenses for the Stations (other than WWDP(TV)) to Buyer. The parties shall
thereafter prosecute such applications and/or amendments with all reasonable
diligence and otherwise use their respective best efforts to obtain the FCC
Consent as expeditiously as practicable. Each party agrees to comply with any
condition imposed on it by the FCC Consent, except that no party shall be
required to comply with a condition if (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 Sellers 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 Closing shall not have occurred for any reason
within the original effective periods of the FCC Consent, and neither Sellers
nor Buyer shall have terminated this Agreement under Section 9, the parties
shall jointly request an extension of the effective period of the FCC Consent.
No extension of the effective period of the FCC Consent shall limit the exercise
by either Buyer or Sellers of their right to terminate the Agreement under
Section 9.
6.2 RISK OF LOSS.
(a) The risk of any loss, damage, impairment, confiscation, or
condemnation of any of the Assets, other than any loss, damage or impairment
resulting from actions taken (or if required, not taken) by Buyer pursuant to
the Time Brokerage Agreements, the Boston
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Affiliation Agreement or the Programming Agreement, from any cause whatsoever
shall be borne by Sellers and the Company at all times prior to the Closing.
(b) If any damage or destruction of the Assets or any other
event occurs which (i) causes any Station to cease broadcasting operations for a
period of five (5) or more consecutive days or (ii) prevents in any material
respect signal transmission by any Station in the normal and usual manner (so
that Station transmission is not substantially in accordance with the Station's
operating parameters as set forth in its FCC License) during all or any portion
of ten (10) or more days during any consecutive 30-day period prior to the
Closing Date, unless such damage, destruction or cessation is caused by actions
taken (or, if required, not taken) by Buyer, Buyer, in its sole discretion, may
(x) terminate this Agreement forthwith without any further obligations hereunder
upon written notice to Sellers, provided that such termination notice from Buyer
is delivered to Sellers within thirty (30) days of the first (1st) day upon
which Buyer could exercise its termination rights or such rights shall be deemed
waived by Buyer, or (y) proceed to consummate the transaction contemplated by
this Agreement and complete the restoration and replacement of the Assets after
the Closing Date, in which event Sellers shall deliver to Buyer all insurance
proceeds received in connection with such damage, destruction or other event.
6.3 CONFIDENTIALITY. Except as necessary for the consummation of the
transactions contemplated by this Agreement, and except as and to the extent
required by law, including, without limitation, disclosure requirements of
federal or state securities laws and the rules and regulations of securities
markets and the FCC, each party will keep confidential any information obtained
from the other party in connection with the transactions contemplated by this
Agreement. If this Agreement is terminated, each party will return to the other
party all information obtained by such party from the other party in connection
with the transactions contemplated by this Agreement.
6.4 COOPERATION. Buyer, Sellers and the Company shall cooperate fully
with each other and their respective counsel and accountants in connection with
any actions required to be taken as part of their respective obligations under
this Agreement, and Buyer, Sellers and the Company shall execute such other
documents as may be necessary and desirable to the implementation and
consummation of this Agreement, and otherwise use their commercially reasonable
efforts to consummate the transaction contemplated hereby and to fulfill their
obligations under this Agreement. Without limiting the generality of the
foregoing, Buyer shall cooperate with Sellers and use commercially reasonable
efforts to minimize to the extent feasible the Taxes payable by Sellers as a
result of the consummation of the transaction contemplated hereby; provided,
however, Buyer shall not be required to incur any obligation or liability as a
result of such efforts.
6.5 RESTRICTED PAYMENT. Neither the Company nor any Subsidiary shall
make any distribution or payment of cash or property, or both, directly or
indirectly to any partner, stockholder, member or other equityholder of the
Company or any Subsidiary or of any of their respective Affiliates for any
reason whatsoever, including, without limitation, salaries (other than the
salaries expressly permitted by the terms of the Time Brokerage Agreements and
Boston Affiliation Agreement), loans, debt repayment, consulting fees, expense
reimbursements and dividends, distributions, put, call or redemption payments
and any other payments in respect of equity interests. Buyer acknowledges and
agrees that (i) the transfer, assignment or conveyance
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of the WWDP Assets to Norwell LLC pursuant to Section 6.8 of this Agreement,
and (ii) any payment of the WEBZ(FM) Distribution to any partner, shareholder,
member or other equityholder of the Company or its Affiliates shall not be
prohibited by this Section 6.5 or any other provision of this Agreement, and the
WEBZ(FM) Distribution shall not reduce the Purchase Price for any purpose under
this Agreement.
6.6 HSR ACT FILING. Sellers and Buyer agree to (a) file, or cause to be
filed, with the U.S. Department of Justice ("DOJ") and Federal Trade Commission
("FTC") all filings, if any, which are required in connection with the
transactions contemplated hereby under the HSR Act within ten (10) business days
of the date of this Agreement; (b) submit to the other party, prior to filing,
their respective HSR Act filings to be made hereunder, and to discuss with the
other any comments the reviewing party may have; (c) cooperate with each other
in connection with such HSR Act filings, which cooperation shall include
furnishing the other with any information or documents in such party's
possession that may be reasonably required in connection with such filings; (d)
promptly file, after any request by the FTC or DOJ and appropriate negotiation
with the FTC and DOJ, any information or documents requested by the FTC or DOJ;
and (e) furnish each other with any correspondence from or to, and notify each
other of any other communications with, the FTC or DOJ which relate to the
transactions contemplated hereunder, and to the extent practicable, to permit
each other to participate in any conferences with the FTC or DOJ.
6.7 ENVIRONMENTAL REPORTS.
(a) The Company has delivered to Buyer copies of each Phase I
and other environmental report that has been obtained by the Company with
respect to the Real Property Interests (collectively, the "Existing Phase I
Reports").
(b) Buyer, at its election and cost, may obtain no later than
forty-five (45) days from the date hereof, any updates of the Existing Phase I
Reports (the "Updated Reports") and a Phase II environmental report for any Real
Property Interest owned by the Company or any Subsidiary with respect to the
Stations to the extent expressly recommended in any Existing Phase I Report or
any Updated Report (a "Phase II Report"). The Company shall cooperate with Buyer
and use commercially reasonable efforts to assist Buyer in obtaining the Phase
II Reports as soon as practicable. The Existing Phase I Reports, any Updated
Reports and any Phase II Reports are hereinafter referred to as the
"Assessments." Buyer shall promptly deliver to the Company a copy of each
Assessment received by Buyer and shall promptly notify the Company of any
environmental condition or defect with respect to the Assets that Buyer may
discover prior to the Closing.
6.8 DISTRIBUTION OF NORWELL ASSETS.
(a) Buyer and the Company shall cause their respective
subsidiaries to dismiss the pending application to assign the FCC Licenses for
WWDP(TV) from Norwell License to Xxxxxx Boston-46 License, Inc.
(b) The Company shall form a new limited liability company
under the laws of the State of Delaware (the "Norwell LLC"), and,
contemporaneously with such formation,
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Norwell LLC and Channel 66 shall enter into the Limited Liability Company
Agreement of Norwell Television, LLC attached hereto as SCHEDULE 6.8(b).
Following the formation of Norwell LLC and the execution of such Limited
Liability Company Agreement, the Company shall prepare and file with the FCC an
application seeking consent to the pro forma assignment of the FCC Licenses of
WWDP(TV) from Norwell License to Channel 66 and from Channel 66 to Norwell LLC
(the "Norwell FCC Consent"). The Company shall thereafter prosecute such
application with all reasonable diligence and otherwise use its best efforts to
obtain the Norwell FCC Consent as soon as possible.
(c) Subject to receipt of the Norwell FCC Consent, immediately
prior to the consummation of the sale of the Stock from Sellers to Buyer on the
Closing Date, Sellers shall cause (i) Norwell License to assign the FCC Licenses
of WWDP(TV) to Channel 66 and (ii) CAP Boston to assign all WWDP Assets held by
CAP Boston to Channel 66, and Sellers shall cause Channel 66 to execute such
agreements, documents and other instruments, in form and substance reasonably
acceptable to Buyer, as may be necessary to transfer, assign and convey all of
the WWDP Assets, including the FCC Licenses of WWDP(TV), to Norwell LLC, free
and clear of any claims, liabilities, security interests, mortgages, liens,
pledges, conditions, charges or encumbrances of any nature whatsoever, other
than (i) liens for current taxes not yet due and payable and (ii) mechanics'
liens and other similar liens created in the ordinary course of business that do
not adversely affect in any material respect the value or current use and
enjoyment of the WWDP Assets. Norwell LLC shall issue to Channel 66 all of the
membership interests in Norwell LLC in exchange for the WWDP Assets. Channel 66
shall distribute to CAP Boston a portion of the membership interests in Norwell
LLC, consisting of all the Class A Voting Units, as described in SCHEDULE 6.8(d)
(the "Class A Interest"), and Channel 66 shall retain the remaining membership
interests in Norwell LLC, consisting of all the Class B Nonvoting Units, as
described in SCHEDULE 6.8(d). CAP Boston shall distribute the entire Class A
Interest to CAP, CAP shall distribute the entire Class A Interest to the
Company, and the Company shall distribute the entire Class A Interest to
Sellers.
(d) Simultaneously with the transfer of the WWDP Assets to
Norwell LLC, Sellers, Norwell LLC and Channel 66 shall enter into an Amended and
Restated Limited Liability Company Agreement of Norwell Television, LLC in the
form of SCHEDULE 6.8(d) hereto (the "Norwell LLC Agreement"). Upon the execution
and delivery of the Norwell LLC Agreement by all parties, the Time Brokerage
Agreement dated as of the date hereof, between Norwell License and Xxxxxx
Communications of Boston-60, Inc., shall terminate.
6.9 TAX MATTERS.
(a) Liability for Taxes.
(i) Sellers shall be liable for and indemnify the
Buyer and the Company for all Taxes attributable to, and all costs and expenses
(such Taxes, costs, and expenses collectively referred to as "Tax Losses")
attributable to Taxes of the Company and Subsidiaries payable with respect to
any taxable year or period that ends on or before the Closing Date and, with
respect to any Straddle Period, the portion of such period ending on and
including the Closing Date; provided, however, that Sellers shall not be liable
hereunder for (i) such Taxes to the extent reflected on the Financial
Statements, and (ii) any Taxes imposed on the Company
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and Subsidiaries or for which the Company and Subsidiaries may otherwise be
liable as a result of transactions occurring after the Closing Date. The Sellers
shall be entitled to any refund of (or credit for) Taxes allocable to any
taxable year or period that ends on or before the Closing Date and, with respect
to any Straddle Period, the portion of such Straddle Period ending on and
including the Closing Date to the extent such refund is not reflected on the
Financial Statements and to the extent such refund is not attributable to
transactions occurring after the Closing Date.
(ii) Buyer shall be liable for Taxes imposed on the
Company and Subsidiaries or for which the Company and Subsidiaries may otherwise
be liable for any taxable year or period that begins after the Closing Date and,
with respect to any Straddle Period, the portion of such Straddle Period
beginning after the Closing Date.
(b) For purposes of Section 6.9(a), whenever it is necessary
to determine the liability for Taxes for a portion of a Straddle Period, the
determination of the Taxes for the portion of the year or period ending on, and
the portion of the year or period beginning after, the Closing Date shall be
determined on the basis of a closing of the entity's books at the close of
business on the Closing Date as if the taxable year or period ended at such
time; provided, however, that exemptions, allowances or deductions that are
calculated on an annual basis, such as the deduction for depreciation, shall be
apportioned between such two taxable years or periods on a daily basis.
(c)(i) Sellers shall file or cause to be filed when due all
Tax Returns that are required to be filed by or with respect to the Company and
Subsidiaries on or before the Closing Date and shall remit or cause to be
remitted any Taxes due in respect of such Tax Returns. All Tax Returns which the
Sellers are required to file or cause to be filed in accordance with this
Section 6.9(c) shall be prepared and filed in a manner consistent with past
practice and, on such Tax Returns, no positions shall be taken, elections made
or method adopted that is inconsistent with positions taken, elections made or
methods used in preparing and filing similar Tax Returns in prior periods
(including, but not limited to, positions which would have the effect of
deferring income to periods for which the Buyer is liable or accelerating
deductions to periods for which the Sellers are liable).
(ii) Buyer shall file or cause to be filed when due
all Tax Returns that are required to be filed by or with respect to the Company
and Subsidiaries after the Closing Date and shall remit or cause to be remitted
any Taxes due in respect of such Tax Returns. All Tax Returns which Buyer is
required to file or cause to be filed in accordance with this Section 6.9(c)
shall be prepared and filed in a manner consistent with past practice and, on
such Tax Returns, no positions shall be taken, elections made or method adopted
that is inconsistent with positions taken, elections made or methods used in
preparing and filing similar Tax Returns in prior periods (including, but not
limited to, positions which would have the effect of accelerating income to
periods for which the Sellers are liable or deferring deductions to periods for
which Buyer is liable). Any Tax Return required to be filed by this Section
6.9(c) relating in whole or in part to Taxes for which the Sellers are liable
pursuant to Section 6.9(a) shall be submitted to the Sellers for their approval
not later than ten (10) days prior to the due date for the filing of such Tax
Return.
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(d)(i) Buyer shall notify Sellers in writing promptly upon
(but in any event within fifteen (15) days after) receipt by Buyer or the
Company of notice of any pending or threatened federal, state, local or foreign
Tax audits, examinations or assessment of Taxes for which the Sellers may be
liable pursuant to this Section 6.9. Sellers shall have the sole right to
represent the Company and Subsidiaries' interests in any Tax audit or
administrative or court proceeding relating solely to taxable years or periods
ending on or before the Closing Date, and to employ counsel of Sellers' choice
at Sellers' expense. Notwithstanding the foregoing, Sellers shall consult with
Buyer with respect to any issue arising in taxable years or periods ending on or
before the Closing Date which may adversely affect the liability for Taxes of
Buyer or the Company and Subsidiaries for any period after the Closing Date
(including the reduction of asset basis or cost adjustments, the lengthening of
any amortization or depreciation periods, the denial of amortization or
depreciation deductions, or the reduction of loss or credit carryforwards), and
Buyer shall provide Sellers with access to Company's financial and other records
necessary to represent Sellers' interests in any such tax audit or
administrative or court proceeding.
(ii) Buyer shall have the sole right to represent the
Company and Subsidiaries' interests in any Tax audit or administrative or court
proceeding relating solely to taxable years or periods ending after the Closing
Date. Notwithstanding the foregoing, Buyer shall consult with the Sellers with
respect to any issue arising in taxable years or periods ending after the
Closing Date which may adversely affect the liability for Taxes of the Company
and Subsidiaries for any period ending on or before the Closing Date (including
the reduction of asset basis or cost adjustments, the lengthening of any
amortization or depreciation periods, the denial of amortization or depreciation
deductions, or the reduction of loss or credit carryforwards).
(e)(i) Buyer and Sellers shall cooperate fully, as and to the
extent reasonably requested by the other party, in connection with the filing of
Tax Returns pursuant to this Section 6.9 and any audit, litigation, or other
proceeding with respect to Taxes. Such cooperation shall include the retention
and (upon the other party's request) the provision of records and information
which are reasonably relevant to any such audit, litigation or other proceeding
and making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided hereunder. Buyer
and the Sellers agree (A) to retain all books and records with respect to Tax
matters pertinent to the Company and Subsidiaries relating to any taxable period
beginning before the Closing Date until the expiration of the statute of
limitations (and, to the extent notified by Buyer or the Sellers, any extensions
thereof) of the respective taxable periods, and to abide by all record retention
agreements entered into with any taxing authority, and (B) to give the other
party reasonable written notice prior to transferring, destroying or discarding
any such books and records and, if the other party so requests, Buyer or
Sellers, as the case may be, shall allow the other party to take possession of
such books and records to the extent they would otherwise be destroyed or
discarded.
(ii) Buyer and Sellers further agree, upon request,
to use commercially reasonable efforts to obtain any certificate or other
document from any governmental authority or any other Person as may be necessary
to mitigate, reduce or eliminate any Tax that could be imposed (including Taxes
with respect to the transactions contemplated hereby).
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(f) Except as otherwise provided in this Section 6.9, any
amounts owed by any party to any other party under this Section 6.9 shall be
paid within ten (10) business days of notice from such other party. Any amounts
which are not paid within such 10-day period shall accrue interest at the
"Underpayment Rate" under Section 6621 of the Code for the underpayment of taxes
by corporations.
(g) With respect to any indemnity for or relating to Tax
Losses, this Section 6.9, to the extent inconsistent with Section 10, shall
control.
6.10 BOSTON PURCHASE. The Boston Purchase Documents are in full force
and effect. D P Boston and Boston License are in compliance with the Boston
Purchase Documents in all material respects and are not in material breach or
default thereunder. To the best knowledge of the Company, Boston University
Communications, Inc. ("Boston University") is in compliance with the Boston
Purchase Documents in all material respects and is not in material breach or
default thereunder. To the best knowledge of the Company, as of the date hereof,
no event has occurred or condition exists that, with notice or the passage of
time or both, could reasonably be expected to result in a material breach or
default under the Boston Purchase Documents by either party thereto. The Company
shall cause D P Boston and Boston License to use commercially reasonable efforts
to (i) maintain the Boston Purchase Documents in full force and effect in
accordance with their terms, (ii) comply in all material respects with the terms
of the Boston Purchase Documents applicable to it, (iii) cause all conditions
precedent to the consummation of the Boston Purchase Agreement to be satisfied
as soon as reasonably practicable, including the grant of the satellite waiver
request regarding the FCC multiple ownership rules, which is in the application
to acquire WBPX(TV), WDPX(TV), WPXG(TV) and W33BZ, and (iv) consummate the
closing under the Boston Purchase Agreement on the earliest date permitted
thereunder. Without Buyer's prior written consent, which consent shall not be
unreasonably withheld, neither the Company, D P Boston nor any other Affiliate
of the Company shall (i) agree to amend or modify in any material respect the
terms or conditions of the Boston Purchase Documents, (ii) waive any conditions
of closing or other material right or remedy under the Boston Purchase Documents
or (iii) authorize Boston University under the terms of the Boston Purchase
Documents to acquire or enter into any new contract or agreement which is not
terminable by D P Boston on thirty (30) days notice. In the event that the
transactions contemplated by the Boston Purchase Agreement are consummated prior
to the Closing, WBPX(TV), WDPX(TV), WPXG(TV) and W33BZ shall each constitute a
"Station" for purposes of this Agreement, and all of the assets, properties,
rights and interests acquired by D P Boston and Boston License pursuant to the
Boston Purchase Agreement shall constitute "Assets" for purposes of this
Agreement. Upon Buyer's reasonable prior notice and, with the consent of Boston
University, if and to the extent such consent is required by the terms of the
Boston Purchase Documents, D P Boston shall assign to Buyer all of its rights
and interests under the Boston Purchase Documents, and Buyer shall assume all of
D P Boston's obligations under the Boston Purchase Documents, in exchange for
forgiveness of that portion of the indebtedness then outstanding under the Loan
Documents that is attributable to any deposit or advance paid by D P Boston to
Boston University pursuant to the Boston Purchase Agreement and in accordance
with customary assignment and assumption agreements reasonably acceptable to
Sellers and Buyer.
6.11 CURE. For all purposes under this Agreement, the existence or
occurrence of any events or circumstances that constitute or cause a material
breach of a representation or warranty
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of Sellers or Buyer (including, without limitation, under the information
disclosed in the SCHEDULEs hereto) on the date such representation or warranty
is made shall be deemed not to constitute a breach of such representation or
warranty if such event or circumstance is cured in all material respects on or
prior to the Closing Date.
6.12 CONTROL OF THE STATIONS. Without limiting the parties' rights and
obligations under the Time Brokerage Agreements, the Programming Agreement and
the Boston Affiliation Agreement, prior to Closing, Buyer shall not, directly or
indirectly, control, supervise, direct, or attempt to control, supervise, or
direct, the operations of any Station; such operations, including complete
control and supervision of all of the Stations' programs, employees, and
policies, shall be the sole responsibility of the Company until the Closing.
6.13 SALES TAX FILINGS. The Company shall continue to file state and
local sales tax returns with respect to the Stations in accordance with the
Company's past practices and shall concurrently deliver copies of all such
returns to Buyer.
6.14 ACCESS TO BOOKS AND RECORDS. Sellers shall provide Buyer access
and the right to copy for a period of three (3) years from the Closing Date any
books and records relating to the Assets that are not included in the Assets.
Buyer shall provide Sellers access and the right to copy for a period of three
years from the Closing Date any books and records relating to the Assets.
Sellers shall make available for Buyer's review, upon Buyer's reasonable
request, all workpapers prepared in connection with the audited financial
statements of the Company and its Subsidiaries as of December 31, 1999, and for
the one (1) year period ending December 31, 1999.
6.15 EMPLOYEE PLANS.
(a) The Company shall terminate the D P Media, Inc. 401(k)
Retirement Plan (the "Plan") effective as of 11:59 p.m., Eastern time, on the
day immediately prior to the Closing Date. The Company shall take all necessary
corporate action to properly authorize and effectuate such termination of the
Plan.
(b) No later than the earlier of the Closing Date and July 31,
2000, Sellers shall cause the Company to file, at the Company's expense, all
Annual Reports for Employee Benefit Plans on IRS Forms 5500 (individually, a
"Form 5500") as may be required under the Code with respect to each Employee
Plan, including any Form 5500 required to have been filed for prior years, if
any, and to pay any and all required penalties to the IRS or Department of Labor
in connection with any late filings.
6.16 FAIRNESS OPINION. Buyer agrees to use commercially reasonable
efforts to obtain as soon as possible following April 3, 2000, a written opinion
from an independent investment banking firm, in form and substance reasonably
satisfactory to Buyer, as to the fairness of the transaction contemplated hereby
to Buyer and its shareholders (the "Fairness Opinion").
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SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLERS AT CLOSING
7.1 CONDITIONS TO OBLIGATIONS OF BUYER. All obligations of Buyer at the
Closing are subject at Buyer's option to the fulfillment prior to or at the
Closing Date of each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. All representations and
warranties of Sellers contained in this Agreement shall be true and correct at
and as of the Closing Date as though made at and as of that time, except (i) for
changes expressly permitted or contemplated by the terms of this Agreement or
the schedules hereto, (ii) insofar as any such representation or warranty was
true and complete as of the date hereof but shall not be true and complete as of
the Closing Date as a result of actions taken (or, if required, not taken) by
Buyer pursuant to any Time Brokerage Agreement, the Boston Affiliation Agreement
or the Programming Agreement, and (iii) inaccuracies in any such representation
or warranty that have not had, and could not reasonably be expected to cause, a
Company Material Adverse Effect or have a material adverse effect on the ability
of Sellers or the Company to consummate the transactions contemplated by this
Agreement in accordance with its terms; provided, however, that for the purpose
of this Section 7.1(a) only, in determining whether there has been a Company
Material Adverse Effect under clause (iii), the representations and warranties
in Section 3 shall be read as if such provisions did not include any "Company
Material Adverse Effect" or other materiality qualifier.
(b) COVENANTS AND CONDITIONS. Sellers, the Company and each
Subsidiary shall have performed and complied with in all material respects all
covenants, agreements, and conditions required by this Agreement to be performed
or complied with by them prior to or on the Closing Date.
(c) CONSENTS. All Consents designated as "material" on
SCHEDULE 3.3 shall have been obtained and delivered to Buyer without any
material adverse change in the terms or conditions of any Assumed Contract or
License.
(d) DELIVERIES. Sellers and the Company shall have made or
stand willing to make all the deliveries to Buyer set forth in Section 8.2.
(e) ADVERSE CHANGE. Between the date of this Agreement and the
Closing Date, there shall have been no Company Material Adverse Effect, other
than any Company Material Adverse Effect resulting from actions taken by Buyer
pursuant to the Time Brokerage Agreements or the Boston Affiliation Agreement.
(f) HSR ACT. The waiting period under the HSR Act shall have
expired or been terminated without unresolved action by the DOJ or the FTC to
prevent the Closing.
(g) TIME BROKERAGE AGREEMENTS. Each Subsidiary, as applicable,
shall have complied in all material respects with their respective obligations
under each Time Brokerage Agreement and the Boston Affiliation Agreement.
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(h) FCC CONSENT. The FCC Consent shall have been granted
without the imposition on Buyer of any conditions that need not be complied with
by Buyer under Section 6.1 and, if required by Section 8.1(b), the FCC Consents
shall have become Final Orders.
(i) WWDP(TV) DISTRIBUTION. Sellers and the Company shall have
completed the distribution of the WWDP Assets in accordance with the
requirements of, and shall have satisfied their other obligations under, Section
6.8 hereof.
(j) LOAN DOCUMENTS. There shall exist no Event of Default
under the Loan Documents or any event which, with the lapse of any applicable
grace period or the giving of notice, or both, would constitute an Event of
Default under the Loan Documents.
7.2 CONDITIONS TO OBLIGATIONS OF SELLERS AND THE COMPANY. All
obligations of Sellers and the Company at the Closing are subject at the
Company's option to the fulfillment prior to or at the Closing Date of each of
the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. All representations and
warranties of Buyer contained in this Agreement shall be true and correct in all
material respects at and as of the Closing Date as though made at and as of that
time.
(b) COVENANTS AND CONDITIONS. Buyer shall have performed and
complied with in all material respects all covenants, agreements, and conditions
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date.
(c) DELIVERIES. Buyer shall have made or stand willing to make
all the deliveries set forth in Section 8.3.
(d) HSR ACT. The waiting period under the HSR Act shall have
expired or been terminated without unresolved action by the DOJ or the FTC to
prevent the Closing.
(e) FCC CONSENT. The FCC Consent shall have been granted
without the imposition on Sellers of any condition that need not be complied
with by Sellers pursuant to Section 6.1 hereof.
(f) TIME BROKERAGE AGREEMENTS. Each subsidiary of Buyer party
thereto shall have complied in all material respects with its obligations under
each Time Brokerage Agreement and the Boston Affiliation Agreement.
SECTION 8. CLOSING AND CLOSING DELIVERIES
8.1 CLOSING.
(a) CLOSING DATE. Subject to satisfaction or, to the extent
permissible by law, waiver (by the party for whose benefit the condition is
imposed), of the conditions described in Sections 7.1 and 7.2, the closing of
the transactions contemplated by this Agreement (the "Closing") shall take
place, commencing at 10:00 a.m., Eastern time, on a date (the "Closing Date") on
or after June 1, 2000, to be set by Buyer upon no less than five (5) business
days notice to the Company in writing that is not earlier than the tenth (10th)
business day, and not
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later than the fifteenth (15th) business day, after the last grant date of the
FCC Consent. If Buyer fails to notify the Company of the Closing Date pursuant
to the preceding sentence, the Closing Date shall occur on the date that is the
fifteenth (15th) business day after the last grant date of the FCC Consent.
(b) POSTPONEMENT. Notwithstanding the requirement of Section
8.1(a) above, if any petition to deny (a "Petition") shall have been filed
against the application for the FCC Consent and the Petition contains one or
more allegations regarding the basic qualifications of the Company, Sellers or
Buyer that pose a reasonable risk of reversal of the FCC Consent, based on the
Communications Act of 1934, as amended, or the FCC's rules, policies or
decisions then in effect, Buyer may, at its election, upon written notice to the
Company, postpone the Closing to a date to be agreed upon by Buyer and the
Company in writing that is not earlier than the fifth (5th) business day, and
not later than the tenth (10th) business day, after such date the FCC Consent
shall have become a Final Order. If the parties cannot agree upon the Closing
Date pursuant to the preceding sentence, the Closing Date shall occur on the
date that is the tenth (10th) business day after the date such FCC Consent shall
have become a Final Order. In the event that a Petition is filed and Buyer
elects not to postpone the Closing and the Closing occurs before the FCC Consent
shall have become a Final Order, if the FCC Consent is reversed pursuant to a
Final Order and the sole basis for such reversal is a finding by the FCC that
Buyer is not qualified to hold the FCC Licenses that are the subject of the FCC
Consent, Buyer shall indemnify Sellers in accordance with Section 10 hereof for
all reasonable expenses incurred by Sellers as a result of the reversal of the
FCC Consent.
(c) CLOSING PLACE. The Closing shall be held at the offices of
Dow, Xxxxxx & Xxxxxxxxx, 0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx,
X.X. 00000, or any other place that is agreed upon by Buyer and the Company.
8.2 DELIVERIES BY SELLERS. Prior to or on the Closing Date, Sellers or
the Company shall deliver to Buyer the following, in form and substance
reasonably satisfactory to Buyer and its counsel:
(a) STOCK. Certificates representing all of the Stock, which
shall be either duly endorsed or accompanied by stock powers duly executed in
favor of Buyer;
(b) RESIGNATIONS. Written resignations, effective on the
Closing Date, of all of the officers and directors of the Company and each
Subsidiary;
(c) ESTOPPEL CERTIFICATES. Estoppel certificates of the
lessors of all leasehold interests included in the Real Property Interests
substantially in the form of SCHEDULE 8.2(c).
(d) ARTICLES OF INCORPORATION. A copy of the Articles of
Incorporation of the Company, certified, as of a date not earlier than ten (10)
days prior to the Closing Date, by the Secretary of State of Florida.
(e) BYLAWS. A copy of the Bylaws of the Company certified, as
of the Closing Date, by its Secretary.
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(f) OFFICER'S CERTIFICATE. A certificate, dated as of
the Closing Date, executed on behalf of Sellers by a duly authorized officer
thereof, certifying the satisfaction of the conditions contained in Sections
7.1(a) and (b).
(g) LENDERS CERTIFICATES. Such certificates and
confirmations to Buyer's investors or lenders as Buyer may reasonably request in
connection with obtaining financing for the performance of its payment
obligations hereunder.
(h) CONSENTS. Copies of all instruments evidencing the
Consents.
(i) OPINION OF COUNSEL. An opinion of Sellers' counsel
dated as of the Closing Date, substantially in the form of SCHEDULE 8.2(i).
8.3 DELIVERIES BY BUYER. On the Closing Date, Buyer shall deliver
to Sellers the following, in form and substance reasonably satisfactory to the
Company and its counsel:
(a) PURCHASE PRICE. Buyer shall have paid to Sellers
the Purchase Price in accordance with Section 2.5.
(b) OFFICER'S CERTIFICATE. A certificate, dated as of the
Closing Date, executed on behalf of Buyer by a duly authorized officer thereof,
certifying the satisfaction of the conditions contained in Sections 7.2(a) and
(b).
(c) OPINION OF COUNSEL. An opinion of Buyer's counsel
dated as of the Closing Date, substantially in the form of SCHEDULE 8.3(c).
SECTION 9. TERMINATION
9.1 TERMINATION BY SELLERS. This Agreement may be terminated by
Sellers and the Company, if Sellers and the Company are not then in material
default, upon written notice to Buyer, upon the occurrence of any of the
following:
(a) CONDITIONS. If, on the date that would otherwise be
the Closing Date, the Company shall have notified Buyer in writing that one or
more of the conditions precedent to the obligations of Sellers and the Company
set forth in Section 7.2 of this Agreement have not been satisfied or waived in
writing by Sellers and the Company and such condition or conditions shall not
have been satisfied by Buyer or waived in writing by Sellers and the Company
within twenty (20) days following such notice.
(b) JUDGMENTS. If, on the date that would otherwise be
the Closing Date, the Company shall have notified Buyer that there is in effect
any judgment, decree, or order that would prevent or make unlawful the Closing
and such judgment, decree or order shall not have been satisfied by Buyer within
twenty (20) days following such notice.
(c) UPSET DATE. If the Closing shall not have occurred
by November 21, 2001; provided, however, that Buyer may extend the date set
forth in this Section 9.1(c) for one additional two (2) year period by providing
written notice of such extension to Sellers no later than August 21, 2001.
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(d) BREACH. If Buyer is in material breach of its
representations, warranties or covenants contained herein, and such breach is
not cured prior to the date upon which the Closing is scheduled to occur.
9.2 TERMINATION BY BUYER. This Agreement may be terminated by
Buyer, if Buyer is not then in material default of its obligations hereunder,
upon written notice to the Company, upon the occurrence of any of the following:
(a) CONDITIONS. If, on the date that would otherwise be
the Closing Date, Buyer shall have notified the Company in writing that one or
more of the conditions precedent to the obligations of Buyer set forth in
Section 7.1 of this Agreement have not been satisfied or waived in writing by
Buyer and such condition or conditions shall not have been satisfied by Sellers
or the Company or waived in writing by Buyer within twenty (20) days following
such notice.
(b) JUDGMENTS. If, on the date that would otherwise be
the Closing Date, Buyer shall have notified the Company that there is in effect
any judgment, decree, or order that would prevent or make unlawful the Closing
and such judgment, decree or order shall not have been satisfied by Sellers or
the Company within twenty (20) days following such notice.
(c) UPSET DATE. If the Closing shall not have occurred by
November 21, 2001.
(d) BREACH. If Sellers or the Company are in material
breach of their representations, warranties or covenants contained herein and
such breach is not cured prior to the date upon which the Closing is scheduled
to occur.
(e) EVENT OF DEFAULT. There shall have occurred and be
continuing an Event of Default under the Loan Documents.
(f) DAMAGE OR DESTRUCTION. In accordance with the terms
of Section 6.2.
(g) ENVIRONMENTAL LIABILITY. If any Assessment reveals
any environmental hazards or defects or any condition that could reasonably be
expected to result in significant environmental damages or substantial clean-up
costs, such conditions have had or could reasonably be expected to have a
Company Material Adverse Effect, and such hazards, defects or conditions are not
remedied prior to the Closing Date.
(h) FAIRNESS OPINION. If Buyer is unable to obtain the
Fairness Opinion.
9.3 RIGHTS ON TERMINATION. If this Agreement is terminated pursuant to
Section 9.1 or Section 9.2 and neither party is in material breach of any
provision of this Agreement, the parties hereto shall have no liability to each
other as a result of such termination, except as provided in this Section 9.3.
If this Agreement is terminated by Buyer due to Sellers' or the Company's
material breach of their obligations hereunder, Buyer shall have all rights and
remedies available at law or equity, including the right to seek specific
performance as set forth in Section 10.6 hereof. If this Agreement is terminated
by Sellers due to Buyer's material breach of its obligations hereunder, Sellers
shall have all rights and remedies available at law.
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9.4 OPTION. If this Agreement is terminated pursuant to this Section 9
for any reason other than a material breach by Buyer of its obligations
hereunder, the Time Brokerage Agreements and the Boston Affiliation Agreement
shall remain in full force and effect in accordance with their respective terms
for a period, in the case of each such agreement, not to exceed ten (10) years
from the date hereof, and Buyer and Sellers shall enter into an Option Agreement
effective as of the date of termination of this Agreement, pursuant to which
Sellers shall grant Buyer an exclusive, irrevocable and freely assignable option
(the "Option") to purchase the Stock for an amount equal to the Purchase Price,
which shall be paid by Buyer as provided in Section 2.5 hereof, and otherwise in
accordance with the terms and conditions of a Stock Purchase Agreement in the
form and substance of this Agreement (the "Option Purchase Agreement"). At any
time following the execution of this Agreement, either Buyer or Sellers may
request that the other enter into an Option Agreement evidencing the parties'
agreements set forth in this Section 9.4. If this Agreement is terminated and
Buyer and Sellers enter into the Option Purchase Agreement, (a) the references
to "November 21, 2001" in Sections 9.1(c) and 9.2(c) of this Agreement shall be
replaced in the Option Purchase Agreement with the date that is two (2) years
following the execution date of the Option Purchase Agreement (the "New Upset
Date"); and (b) the date specified in the proviso of Section 9.1(c) of this
Agreement shall be replaced in the Option Purchase Agreement with the date that
is three (3) months prior to the New Upset Date.
9.5 LIMITATION. Buyer may not rely on the failure of any condition
precedent set forth in Section 7.1 to be satisfied, and neither Sellers nor the
Company may rely on the failure of any condition precedent set forth in Section
7.2 to be satisfied, as a ground for refusing to perform their respective
obligations to be performed by them at the Closing or for termination of this
Agreement by such party if such failure was caused by such party's failure to
act in good faith or a breach of or failure to perform its representations,
warranties, covenants or other obligations in accordance with the terms hereof.
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION;
CERTAIN REMEDIES
10.1 REPRESENTATIONS AND WARRANTIES. All representations and warranties
contained in this Agreement shall be deemed continuing representations and
warranties and shall survive the Closing for a period of three (3) years (the
"Indemnity Period"), except that the representations and warranties contained in
Section 3.8 shall survive until the expiration of the applicable statute of
limitations. No claim for indemnification may be asserted after the expiration
of the Indemnity Period, except for claims based on the breach of any
representation or warranty in Section 3.8. Notwithstanding anything herein to
the contrary, any representation or warranty which is the subject of a claim for
indemnification which is asserted in writing prior to the expiration of the
Indemnity Period shall survive with respect to such claim for indemnification
until the final resolution thereof. Any investigations by or on behalf of any
party hereto shall not constitute a waiver as to enforcement of any
representation, warranty, or covenant contained in this Agreement. Following the
Closing, Sellers shall not have any right of contribution against the Company
for any indemnification payment made by Sellers hereunder, and Sellers waive any
such right they may have.
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47
10.2 INDEMNIFICATION BY SELLERS. Notwithstanding the Closing and
regardless of any investigation made at any time by and on behalf of Buyer or
any information Buyer may have, Sellers hereby agree to indemnify and hold Buyer
harmless against and with respect to, and shall reimburse Buyer for:
(a) Any and all losses, liabilities, or damages resulting from
any untrue representation, breach of warranty, or nonfulfillment of any covenant
by Sellers or the Company contained in this Agreement or in any certificate,
document, or instrument delivered to Buyer under this Agreement.
(b) Any and all losses, liabilities or damages resulting from
any liability or obligation of the Company or any Subsidiary in existence as of
the Closing and not permitted by Section 2.4.
(c) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
10.3 INDEMNIFICATION BY BUYER. Notwithstanding the Closing, and
regardless of any investigation made at any time by or on behalf of Sellers or
the Company or any information Sellers or the Company may have, Buyer hereby
agrees to indemnify and hold Sellers harmless against and with respect to, and
shall reimburse Sellers for:
(a) Any and all losses, liabilities, or damages resulting from
any untrue representation, breach of warranty, or nonfulfillment of any covenant
by Buyer contained in this Agreement or in any certificate, document, or
instrument delivered to Sellers under this Agreement.
(b) Any and all obligations of Sellers arising under the
Contracts and Licenses after the Closing Date.
(c) Any and all losses, liabilities or damages resulting from
the operation or ownership of the Stations (other than WWDP(TV)) on and after
the Closing, or resulting or arising from Buyer's conduct under the Time
Brokerage Agreements, Boston Affiliation Agreement or Programming Agreement.
(d) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
10.4 PROCEDURE FOR INDEMNIFICATION. The procedure for indemnification
shall be as follows:
(a) The party claiming indemnification (the "Claimant") shall
promptly give notice to the party from which indemnification is claimed (the
"Indemnifying Party") of any claim, whether between the parties or brought by a
third party, specifying in reasonable detail the
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48
factual basis for the claim. If the claim relates to an action, suit, or
proceeding filed by a third party against Claimant, such notice shall be given
by Claimant within five (5) days after written notice of such action, suit, or
proceeding was given to Claimant.
(b) With respect to claims solely between the parties,
following receipt of notice from the Claimant of a claim, the Indemnifying Party
shall have thirty (30) days to make such investigation of the claim as the
Indemnifying Party deems necessary or desirable. For the purposes of such
investigation, the Claimant agrees to make available to the Indemnifying Party
and/or its authorized representatives the information relied upon by the
Claimant to substantiate the claim. If the Claimant and the Indemnifying Party
agree at or prior to the expiration of the thirty-day period (or any mutually
agreed upon extension thereof) to the validity and amount of such claim, the
Indemnifying Party shall immediately pay to the Claimant the full amount of the
claim. If the Claimant and the Indemnifying Party do not agree within the
thirty-day period (or any mutually agreed upon extension thereof), the Claimant
may seek appropriate remedy under the arbitration provisions of this Agreement.
(c) With respect to any claim by a third party as to which the
Claimant is entitled to indemnification under this Agreement, the Indemnifying
Party shall have the right at its own expense, to participate in or assume
control of the defense of such claim, and the Claimant shall cooperate fully
with the Indemnifying Party, subject to reimbursement for actual out-of-pocket
expenses incurred by the Claimant as the result of a request by the Indemnifying
Party. If the Indemnifying Party elects to assume control of the defense of any
third-party claim, the Claimant shall have the right to participate in the
defense of such claim at its own expense. If the Indemnifying Party does not
elect to assume control or otherwise participate in the defense of any third
party claim, it shall be bound by the results obtained by the Claimant with
respect to such claim.
(d) If a claim, whether between the parties or by a third
party, requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
(e) The indemnification rights provided in Sections 10.2 and
10.3 shall extend to the shareholders, directors, officers, employees, and
representatives of any Claimant although for the purpose of the procedures set
forth in this Section 10.3(d), any indemnification claims by such parties shall
be made by and through the Claimant.
10.5 LIMITATIONS ON INDEMNIFICATION. No indemnification shall be
required to be made hereunder by an Indemnifying Party until the aggregate
amount of all indemnification claims against the Indemnifying Party exceeds
Fifty Thousand Dollars ($50,000), provided that once such claims exceed Fifty
Thousand Dollars ($50,000), the Indemnifying Party shall be required to
indemnify the Claimant with respect to all indemnifiable claims, including
indemnifiable claims for the initial Fifty Thousand Dollars ($50,000).
Notwithstanding anything to the contrary contained herein, in no event shall any
Indemnifying Party's obligations for indemnification under this Agreement exceed
in the aggregate Three Million Dollars ($3,000,000) (the "Indemnification
Limit"), and Buyer hereby waives and releases any recourse against Sellers, and
Sellers each hereby waive and release any recourse against Buyer, for
indemnification above the Indemnification Limit.
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49
10.6 SPECIFIC PERFORMANCE. The parties recognize that if Sellers or the
Company breach this Agreement and refuse to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled, in addition to any other remedies
that may be available, including money damages, to obtain specific performance
of the terms of this Agreement. If any action is brought by Buyer to enforce
this Agreement, Sellers and the Company waive the defense that there is an
adequate remedy at law.
10.7 ATTORNEYS' FEES. In the event of a default by any party which
results in a lawsuit or other proceeding for any remedy available under this
Agreement, the prevailing party shall be entitled to reimbursement from the
other party of its reasonable legal fees and expenses.
SECTION 11. MISCELLANEOUS
11.1 FEES AND EXPENSES. Sellers, the Company and Buyer each shall pay
its own expenses incurred in connection with the authorization, preparation,
execution, and performance of this Agreement, including all fees and expenses of
counsel, accountants, agents, and representatives, except that (a) Buyer and the
Company shall each pay one-half of (i) the filing fees required by the FCC in
connection with the application for the FCC Consent, (ii) the filing fees
required by the FTC under the HSR Act, and (iii) any federal, state, or local
sales or transfer tax arising in connection with the conveyance of the Stock by
Sellers to Buyer pursuant to this Agreement and (b) Buyer shall reimburse
Sellers and the Company for the reasonable legal fees and expenses incurred by
Sellers and the Company in the negotiation, implementation and consummation of
the Asset Purchase Agreement and this Agreement, and the documents entered into
in connection with such agreements, except that no legal fees or expenses
incurred by Sellers or the Company shall be reimbursed by Buyer if such fees or
expenses are incurred as a result of a contractual or other legal dispute among
Sellers and/or the Company, on the one hand, and Buyer, on the other hand, or
Sellers and/or the Company, on the one hand, and NBC, on the other hand. Each
party shall be responsible for all fees or commissions payable to any finder,
broker, advisor, or similar person retained by or on behalf of such party.
11.2 ARBITRATION. Except as otherwise provided to the contrary below,
any dispute arising out of or related to this Agreement that Sellers and Buyer
are unable to resolve by themselves shall be settled by arbitration in
Washington, D.C. by a panel of three (3) neutral arbitrators who shall be
selected in accordance with the procedures set forth in the commercial
arbitration rules of the American Arbitration Association. The persons selected
as arbitrators shall have prior experience in the broadcasting industry but need
not be professional arbitrators. Before undertaking to resolve the dispute, each
arbitrator shall be duly sworn faithfully and fairly to hear and examine the
matters in controversy and to make a just award according to the best of his or
her understanding. The arbitration hearing shall be conducted in accordance with
the commercial arbitration rules of the American Arbitration Association. The
written decision of a majority of the arbitrators shall be final and binding on
Sellers and Buyer. The costs and expenses of the arbitration proceeding shall be
assessed among Sellers and Buyer in a manner to be decided by a majority of the
arbitrators, and the assessment shall be set forth in the decision and award of
the arbitrators. Judgment on the award, if it is not paid within thirty days,
may be entered in any court having jurisdiction over the matter. No action at
law or suit in equity based upon any claim arising out of or related to this
Agreement shall be instituted in any court by
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50
Sellers or Buyer against the other except (i) an action to compel arbitration
pursuant to this Section, (ii) an action to enforce the award of the arbitration
panel rendered in accordance with this Section, or (iii) a suit for specific
performance pursuant to Section 10.6.
11.3 NOTICES. All notices, demands, and requests required or permitted
to be given under the provisions of this Agreement shall be (a) in writing, (b)
delivered by personal delivery, or sent by commercial delivery service or
registered or certified mail, return receipt requested, (c) deemed to have been
given on the date of personal delivery or the date set forth in the records of
the delivery service or on the return receipt, and (d) addressed as follows:
If to Buyer: Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
-and-
Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: General Counsel
With a copy to: Xxxx X. Xxxxx, Xx., Esq.
Dow, Xxxxxx & Xxxxxxxxx
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
-and-
National Broadcasting Company, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxxx, Esq.
If to Sellers or the Company: D P Media, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxx
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With a copy to: Xxxx X. Xxxxxxxx, Esquire
Xxxxx, Xxxxxxxx & Tannenwald
0000 Xxxxx Xxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
-and-
National Broadcasting Company, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxxx, Esq.
-and-
Xxxxxx X. Xxxxxxx, Esq.
Holland and Knight
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxx, XX 00000
or to any other or additional persons and addresses as the parties may from time
to time designate in a writing delivered in accordance with this Section 11.3.
11.4 BENEFIT AND BINDING EFFECT. No party hereto may assign this
Agreement without the prior written consent of the other parties hereto;
provided, however, that Buyer may assign its rights and obligations under this
Agreement, in whole or in part, to one or more subsidiaries or commonly
controlled affiliates of Buyer without seeking or obtaining Sellers' or the
Company's prior approval, provided that such assignment shall not constitute a
release of Buyer's obligations hereunder, and Buyer may collaterally assign its
rights and interests hereunder as of the Closing Date to its lenders without
seeking or obtaining Sellers' or the Company's prior approval. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
11.5 FURTHER ASSURANCES. The parties shall take any actions and
execute any other documents that may be necessary or desirable to the
implementation and consummation of this Agreement, including, in the case of
Sellers, any additional stock powers or other transfer documents that, in the
reasonable opinion of Buyer, may be necessary to ensure, complete, and evidence
the full and effective transfer of the Stock to Buyer pursuant to this
Agreement.
11.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED,
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT REGARD
TO THE CHOICE OF LAW PROVISIONS THEREOF).
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52
11.7 HEADINGS. The headings in this Agreement are included for ease of
reference only and shall not control or affect the meaning or construction of
the provisions of this Agreement.
11.8 GENDER AND NUMBER. Words used in this Agreement, regardless of the
gender and number specifically used, shall be deemed and construed to include
any other gender, masculine, feminine, or neuter, and any other number, singular
or plural, as the context requires.
11.9 ENTIRE AGREEMENT. This Agreement, the schedules hereto, and all
documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
among Buyer, the Company and Sellers with respect to the subject matter hereof.
This Agreement supersedes all prior negotiations between the parties and cannot
be amended, supplemented, or changed except by an agreement in writing that
makes specific reference to this Agreement and which is signed by the party
against which enforcement of any such amendment, supplement, or modification is
sought.
11.10 WAIVER OF COMPLIANCE; Consents. Except as otherwise provided in
this Agreement, any failure of any of the parties to comply with any obligation,
representation, warranty, covenant, agreement, or condition herein may be waived
by the party entitled to the benefits thereof only by a written instrument
signed by the party granting such waiver, but such waiver or failure to insist
upon strict compliance with such obligation, representation, warranty, covenant,
agreement, or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires or
permits consent by or on behalf of any party hereto, such consent shall be given
in writing in a manner consistent with the requirements for a waiver of
compliance as set forth in this Section 11.10.
11.11 PRESS RELEASE. Prior to the Closing, no party hereto shall
publish any press release, make any other public announcement or otherwise
communicate with any news media concerning this Agreement or the transactions
contemplated hereby without the prior written consent of the other party;
provided, however, that nothing contained herein shall prevent any party from
promptly making all filings with governmental authorities as may, in its
reasonable judgement be required or advisable in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
11.12 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. All judicial
proceedings permitted by the terms hereof and brought against Buyer, the Company
or Sellers that arise out of or relate to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of Florida and, by
execution and delivery of this Agreement, Buyer, the Company and Sellers each
accept for itself and in connection with its properties, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts and
waives any defense of forum non conveniens and irrevocably agrees to be bound by
any judgment rendered thereby in connection with this Agreement. Sellers and,
prior to the Closing, the Company, designate and appoint Xxxxx Xxxxxx, and Buyer
and, after the Closing, the Company, designate and appoint Xxxxxx X. Xxxxxx, and
such other persons as may hereafter be selected by Buyer, the Company or
Sellers, as their respective agent to receive on their behalf service of all
process in any such proceedings in any such court, such service being hereby
acknowledged by Buyer, the Company and Sellers to be effective and binding
service in every respect. A copy of any such process so served shall be sent to
Buyer, the Company and Sellers in accordance with Section 11.3. If any agent
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53
appointed by Buyer, the Company or Sellers refuses to accept service, Buyer, the
Company and Sellers hereby agree that service upon it by mail shall constitute
sufficient notice. Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of either party to bring
proceedings against the other in the courts of any other jurisdiction.
11.13 NO RECOURSE. Buyer, the Company and Sellers hereby agree that no
Person shall have any recourse hereunder or under any documents or instruments
delivered in connection herewith (including, without limitation, the Buyer
Ancillary Agreements and Seller Ancillary Agreements) against NBC or any current
or future director, officer, employee, or agent of NBC, whether by any legal or
equitable proceeding or arbitration, or by virtue of any statute, regulation or
other applicable law, or otherwise.
11.14 COUNTERPARTS. This Agreement may be signed in counterparts with
the same effect as if the signature on each counterpart were upon the same
instrument.
11.15 TIME BROKERAGE AGREEMENT FEE. Upon the earlier to occur of (i)
the termination of this Agreement for any reason other than a material breach by
Sellers or the Company of their representations, warranties, covenants or
agreements hereunder, (ii) the failure of the Closing to take place on or before
November 21, 2000, for any reason other than a material breach by Sellers or the
Company of their representations, warranties, covenants or agreements hereunder,
and (iii) the parties' failure to close the transactions contemplated by this
Agreement within forty (40) days of the date of FCC Consent, unless such failure
to close is a result of either Sellers' or the Company's material breach of
their representations, warranties or covenants hereunder or the requirement in
Section 8.1(a) that the Closing not occur prior to June 1, 2000, Buyer shall be
required to make, in addition to all other payments and reimbursements required
under such agreements, commencing upon the occurrence of such event, a payment
to the Company pursuant to the Time Brokerage Agreements and the Boston
Affiliation Agreement in an amount per annum, in the aggregate for all Time
Brokerage Agreements and the Boston Affiliation Agreement, equal to five percent
(5%) of the Purchase Price, payable in advance in twelve equal monthly payments
(the "Time Brokerage Agreements Fee"). Such payments of Time Brokerage Agreement
Fees shall continue to be paid for the duration of the Time Brokerage
Agreements.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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54
IN WITNESS WHEREOF, the parties hereto have duly executed this Stock
Purchase Agreement as of the day and year first above written.
SELLERS: D P MEDIA, INC.
By:
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
-------------------------------------------------
XXXXX XXXXXX
-------------------------------------------------
ROSLYCK XXXXXX
THE XXXXX XXXXXX IRREVOCABLE CHILDREN'S TRUST
By: Roslyck Xxxxxx, as its Trustee
By:
----------------------------------------
Name: Roslyck Xxxxxx
Title: Trustee
THE ROSLYCK XXXXXX IRREVOCABLE CHILDREN'S TRUST
By: Xxxxx Xxxxxx, as its Trustee
By:
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Trustee
55
THE XXXX XXXXXX XXXXXX SUPPORT TRUST
By: The Private Capital Group of STI
Capital Management, N.A.,
as Trustee
By:
----------------------------------------
Name:
Title:
THE XXXXX XXXXXX XXXXXX SUPPORT TRUST
By: The Private Capital Group of STI
Capital Management, N.A.,
as Trustee
By:
----------------------------------------
Name:
Title:
BUYER: XXXXXX COMMUNICATIONS CORPORATION
By:
-------------------------------------------
Name:
Title:
