Exhibit 10.04
AGREEMENT AND XXXX OF SALE
This Agreement and Xxxx of Sale (this "Agreement") is made and entered
into this 28th day of May, 1999, by and between ATN Network, Inc., a Texas
corporation ("Seller"), and Hispano Television Ventures, Inc., a Texas
corporation ("Purchaser").
RECITALS
Seller owns and operates a television station located at #1 Microwave Tower
Road, Usury Peak, Xxxx, Xxxxxxx 00000, hereinafter referred to as the
"Business." Seller desires to sell, and Purchaser desires to purchase, the
assets composing the Business on the terms and conditions set forth in this
Agreement.
AGREEMENT
In consideration of the mutual representations, warranties and covenants
set forth in this Agreement, and on the terms and subject to the conditions
herein set forth, the parties hereby agree as follows:
1. PURCHASE AND SALE. For the consideration specified in Section 3 below,
and subject to the terms, conditions and agreements contained in this Agreement,
Seller agrees to sell, transfer, convey and deliver to Purchaser, and does
hereby sell, transfer, convey and deliver to Purchaser, free and clear of all
liens charges, claims and encumbrances, and Purchaser agrees to purchase and
accept from Seller, and has purchased and accepted from Seller, the following
described property (collectively, the "Assets"), being intended to describe all
of the assets of the Business, except those excluded pursuant to Section 2
below:
A. All furniture, fixtures, production and other equipment, supplies,
tape libraries and other fixed assets of Seller used by Seller in the
operation of the Business, including, but not limited to, those items
described in Exhibit "A" attached hereto and incorporated herein for
all purposes by this reference;
B. All inventory owned and/or acquired through the Business or otherwise
located at the location of the Business and all existing rights to its
advertising and programming;
C. All accounts receivable arising out of the Business together with all
promissory notes and evidences of indebtedness owed to Seller on such
accounts receivable, together with all rights to evidences of
indebtedness, claims, choses in action, liens, pledges and other
instruments and security of every kind and nature owned by Seller as
security for and in any manner securing or collateral to or for said
accounts receivable;
D. All of Seller's right, title and interest in and to the leasehold
interests and leasehold assets in and upon the premises described
above and presently leased by Seller and occupied by the Business (the
"Leaseholds"), including all prepaid rentals and all security and
utility deposits paid by Seller in connection with the Leaseholds;
E. Those certain contracts, agreements, arrangements and/or commitments
relating to the Business and/or Assets which Purchaser has elected to
assume as expressly indicated on Exhibit "B" attached hereto (the
"Assumed Contracts"); and
F. All compilations and lists of present or former customers, all mailing
lists, all business records, files and papers relevant to the Business
or relating to the Assets described in Sections 1(A) through l(E)
(including all records relating to all inventory records, customer
files, customer credit histories and other data related to the Assets
described in Sections 1(A) through Sections 1(E), all telephone
numbers, listings and advertisements (including specifically the
telephone number(s) presently used by Seller in the Business and all
presently utilized "yellow pages" advertisements), the right (but not
the obligation) to assume Seller's experience rating or other rating
with any employment commission or regulatory agency, all licenses,
permits, applications and franchises (specifically including Seller's
Federal Communications Commission license) ("FCC License") relating to
the Assets, to the extent the same are transferable and unless
otherwise excluded, and all good will and intangible assets and other
rights and privileges of Seller desirable or useful to Purchaser for
the purpose of continuing the Business and maintaining and retaining
the existing customers, advertisers, vendors and business of Seller,
together with the right to use any trade names presently or formerly
used by Seller in the Business and any name derived from or so similar
as to require the consent of Seller to its rightful use, for any
lawful business purpose. Purchaser shall have the ongoing right,
either on its own behalf or as Seller's agent, to contest any attempt
by any third party to use such name in the areas in which the Business
is conducted. In connection with the right to use such similar name,
Seller shall withdraw all Certificates or Notices on file in any
recording office in the County and State in which the Business is
located in order that the name referred to above or any similar name
may be used by Purchaser. Further, Purchaser shall have the right, but
not the obligation, to hire any and all of the present employees of
Seller. Except as expressly provided to the contrary in this
Agreement, Purchaser shall also have the right, but not the
obligation, to assume any rights', privileges or duties under any
continuing contracts not specifically listed in Exhibit "B" but
relating in any way to the operation of the Business.
TO HAVE AND TO HOLD all and singular the Assets unto Purchaser, its
successors and assigns, forever, and Seller does hereby bind itself, its
successors and assigns, to warrant and forever defend, all and singular, title
to the Assets unto Purchaser, its successors and assigns, against every person
whomsoever lawfully claiming or attempting to claim the same, or any part
thereof.
2. EXCLUDED ASSETS. Seller and Purchaser recognize and agree that the
following described assets shall not be sold as a part of the Business:
A. Records of the Business which Seller is required to retain by law;
B. Cash on hand and cash equivalents; and
3. CONSIDERATION. Seller hereby agrees that Purchaser's assumption of the
Assumed Contracts and Purchaser's prior payment of certain expenses on behalf of
Seller prior to the date of this Agreement, constitute adequate and sufficient
consideration for the sale to Purchaser of all interests held by Seller in and
to the Assets and for the performance by Seller of all of its covenants and
agreements hereunder.
4. THE CLOSING. The Closing of the transactions contemplated under this
Agreement (the "Closing") shall take place on May 28, 1999 at the offices of
Xxxxxx & Hanger, L.L.P., at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxx
00000, at 2:00 p.m. central time (the "Closing Date"), or at such other time and
date as mutually agreed upon by the parties. At the Closing, the following shall
take place:
A. Seller shall have provided Purchaser with written evidence of all
approvals of Seller's lenders, vendors, lessors and other parties
required to be obtained in connection with the consummation of the
transactions contemplated under this Agreement. If any governmental
license or permit exists, which, by its terms or applicable law,
expires, terminates or is otherwise rendered invalid upon the transfer
of the Assets and is required in order for the Business to be
conducted following such transfer in the same manner as conducted
previously, Purchaser shall have received an equivalent of that
license or permit, effective as of and after the Closing Date, with
the exception of the FCC License, for which Seller shall provide to
Purchase all necessary documentation to apply for the FCC License's
transfer on the Closing Date.
B. Without additional consideration, Seller agrees to aid, assist and
cooperate with Purchaser in all respects in the orderly transfer of
the Business to Purchaser and to use all reasonable efforts to the end
that Purchaser shall realize a maximum retention of the customers and
general business and good will of the Business. At the Closing, and at
all times thereafter as may be necessary, Seller shall execute and
deliver and use its best efforts to cause other persons to execute and
deliver to Purchaser such other instruments, releases or documents,
and will do or use its best efforts to cause to be done such acts, as
shall be reasonably necessary to vest in Purchaser good and
indefeasible title to the Assets described in Sections l(A) through
Sections 1(F) hereof and to comply with the purposes and intents of
this Agreement and to more completely consummate or make effective the
transactions contemplated hereunder.
5. LIMITED ASSUMPTION OF LIABILITIES. It is specifically agreed and
understood that Purchaser does not and shall not assume or agree to pay, perform
or discharge any accounts payable of Seller, nor any other obligations,
liabilities or duties of Seller, whether accrued, absolute, contingent or
otherwise, arising out of or in any way connected with Seller's activities
and/or the operation of the Business prior to the Closing, except as
specifically fisted on Exhibit "C" attached hereto and incorporated herein for
all purposes by this reference, which lists liabilities Purchaser hereby
expressly assumes. Seller agrees to take such actions after the Closing as may
be required to defend the title of Purchaser and confirm the sale of the assets
described in Sections 1(A) through Sections 1(F) to Purchaser sold hereunder.
Seller agrees to fully indemnify, defend and hold Purchaser harmless from any
Losses (as hereinafter defined) incurred by Purchaser arising from or in any way
related to any such prior obligations, liabilities or duties of Seller.
6. POSSESSION/TRANSFER OF PROPERTY/TRANSITION AGREEMENTS. Possession of all
property sold pursuant to this Agreement shall be effectively transferred to
Purchaser as of the Closing and title to all such property shall be delivered on
the same date. In recognition that Seller has been operating the Business and
Purchaser intends to continue operating it without interruption, the following
additional agreements are made:
A. All income earned before the Closing shall be credited or received by
Seller, and all income earned or accrued on or after the Closing shall
be credited and received by Purchaser;
B. All expenses incurred or benefiting operations before the Closing
shall be paid by Seller, and all expenses incurred or benefiting
operations on or after the Closing shall be paid by Purchaser; and
C. Both parties agree to cooperate with each other so that there is an
orderly transfer of the business operations of the Business,
collection of all applicable income of each party and the payment of
all applicable expenses attributable to each party in accordance with
this Agreement. All income collected by one party attributable to the
other shall upon receipt be immediately remitted to the other party
entitled to the income. Any expenses attributable to one party
presented for payment after the Closing shall be immediately paid by
the party owing such expense in accordance herewith, or such party
shall immediately reimburse the other party for any such expense paid
by such other party upon accounting therefor.
7. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents,
warrants and guarantees to Purchaser that the following are true and correct as
of the Closing Date and are in addition to and not exclusive of any other
representations, warranties or guarantees made elsewhere in this Agreement:
A. All accounts, accounts receivable, notes and other evidences of
indebtedness reflected by Seller's books and records as owed to and
owned by Seller and which are being transferred and sold to Purchaser
represent bona fide assets of Seller and bona fide transactions
between Seller and the respective parties to such transactions.
Seller's books and records which are being delivered to Purchaser
contain an accurate record of the Business.
B. Seller owns the Business and all Assets of every kind and nature being
transferred to Purchaser hereunder, free and clear of all contracts,
interests, security interests, claims, liens, pledges, penalties,
charges, encumbrances, buy-sell agreements and all other rights of any
party whatsoever of every kind and character, and has good and
indefeasible title to, and the unconditional right to sell, assign,
convey, transfer and deliver to Purchaser the Business and such
Assets, free and clear of any contracts, interests, security
interests, claims, liens, pledges, penalties, charges, encumbrances,
buy-sell agreements and all other rights of any party whatsoever of
every kind and character. Upon the issuance and delivery of the
Consideration Shares in accordance with this Agreement, good and
indefeasible title to all Assets shall be and has become vested in
Purchaser, free and clear of any contracts, interests, security
interests, claims, liens, pledges, penalties, charges, encumbrances,
buy-sell agreements or other rights of any party whatsoever.
C. No refunds, repayments or claims of any nature are now due or will
become due and payable, outside of the ordinary course of business,
relating to any transactions of Seller and, to Seller's knowledge, all
transactions of any nature have been entered into and/or completed in
accordance with all applicable statutes, laws, rules, codes,
regulations and ordinances.
D. Seller is not a party to, nor, to Seller's knowledge, is there any
threat of, any action, lawsuit, claim, investigation or proceeding,
whether judicial or administrative, arising out of, in connection
with, against, in any way affecting, or that could affect, Seller or
any of the assets of Seller, or any of the business, assets or
property being transferred under or in connection with the terms of
this Agreement and Seller knows of no basis for any such action,
proceeding or investigation.
E. There are no judgments, writs, injunctions, decrees, liens, claims,
encumbrances, charges, demands or security interests in effect or
outstanding against Seller or applicable to its business, assets,
operations or employees including the Business or any of the Assets
being transferred in connection with this Agreement.
F. EXHIBIT "B", attached hereto and incorporated herein for all purposes
by this reference, sets forth a fist of all contracts, agreements,
leases, commitments, and other similar obligations of Seller relating
to the Business involving (1) the Leaseholds, or (2) an unperformed
commitment in excess of $5,000 per year, or (3) a duration exceeding
one year from the date hereof (collectively, the "Contracts"). Those
Contracts which Purchaser has elected to assume are identified on
Exhibit B and are the Assumed Contracts mentioned in Section 1(E)
hereof Purchaser shall not be responsible for or liable with respect
to any Contract not identified as an Assumed Contract. True and
correct copies of all Contracts (including any amendments, addenda or
supplements thereto) have been delivered to Purchaser prior to the
date hereof and true and correct and complete written descriptions of
all oral contracts have been delivered to Purchaser prior to the date
hereof With respect to the Contracts, and, except as expressly set
forth in Exhibit "B" attached hereto:
(1) Each Contract is in full force and effect and is a valid and
binding agreement of Seller and the other parties thereto
enforceable in accordance with its terms, and no defenses,
offsets or counterclaims have been asserted or may be made by any
party thereto, nor has Seller waived any rights thereunder;
(2) Neither Seller nor, to Seller's knowledge, any other party to any
Contract is in default with respect to any material term or
provision thereof, nor has any event occurred which, with the
giving of notice or the lapse of time, or both, would constitute
such a default and no penalties have been incurred nor are any
amendments pending;
(3) Seller knows of no fact or circumstance which reasonably can be
expected in the future to cause Seller or Purchaser (after
assignment) to be in default under any Contract; and
(4) Except for the Contracts, Seller has not entered into nor are the
Assets of the Business bound by, whether or not in writing any
(i) partnership or joint venture agreement; (ii) mortgage, deed
of trust, security agreement or any other lien, security interest
or charge; (iii) guaranty, indemnification or contribution
agreement; (iv) employment, consulting or compensation agreement;
(v) lease of real or personal property, whether as lessor,
lessee, sublessor, or sublessee; (vi) agreement relating to any
matter or transaction in which an interest is held by a person or
entity that is an affiliate of Seller; (vii) powers of attorney;
or (viii) contracts containing any non-competition covenants.
Neither the Business nor any of the Assets are subject to or otherwise
affected by any agreement or instrument or any charter or other
restriction that could or does materially affect such Assets or the
Business. Seller has not received notice of any plan or intention of
any other party to any Assumed Contract to exercise any right to
cancel or terminate any Assumed Contract, and Seller knows of no fact
that would justify the exercise of such right. Seller currently has no
knowledge that any other person or entity currently contemplates any
amendment or change to any Contract.
G. Seller has not been and is not presently in violation, to Seller's
knowledge, of any statute, rule, ordinance, regulation, licensing
requirement, decision, charge or order of any Court or official or
administrative body, nor, to Seller's knowledge, is any type of action
or proceeding pending or threatened against Seller that could
materially adversely affect the business and/or assets to be
transferred pursuant to the terms of this Agreement.
H. Seller has duly and timely filed all income, excise, corporate,
franchise, property, sales, payroll, withholding and other tax returns
and reports required to be filed by it as of the date hereof by the
United States, the State and County in which the Business is located,
or any political subdivision thereof and has timely paid and
discharged all obligations (including penalties and interest) which
have become due pursuant to such returns and any assessments which
have been received by it or otherwise. All such tax returns or reports
fairly reflect the taxes of Seller for the periods covered thereby.
Seller is not delinquent in the payment of any tax, assessment or
governmental charge, there is no tax deficiency or delinquency
asserted against Seller and there is no unpaid assessment, proposal
for additional taxes, deficiency or delinquency in the payment of any
of the taxes of Seller that could be asserted by any taxing authority.
To the knowledge of Seller, Seller is not in material violation of any
federal, state, local or foreign tax law. No Internal Revenue Service
audit or audit by any State tax collection agency of Seller is pending
or, to the knowledge of Seller, threatened, and the results of any
completed audits are properly reflected in the financial statements of
Seller. Seller has not granted any extension to any taxing authority
of the limitation period during which any tax liability may be
asserted. All monies required to be withheld by Seller from employees
or collected from customers for income taxes, social security and
unemployment insurance taxes and sales, excise and use taxes, and the
portion of any such taxes to be paid by Seller to governmental
agencies, have been collected or withheld and either paid to the
respective governmental agencies or set aside in accounts for such
purpose.
I. There are no agreements with any labor union, other labor organization
or labor representatives applicable to or covering the employees of
the Business, nor are any discussions or negotiations in anticipation
of any such agreement presently under way or anticipated, nor does
Seller know of any current or contemplated union organization efforts
or negotiations, nor has there been any request made to enter any such
negotiations or to hold any type of election relating to
employer/employee relations or bargaining. Seller has not experienced
and is not experiencing, nor does Seller know of any reason to expect,
any labor troubles or strikes, work stoppages, slow downs, or other
material interference with or impairment of the Business of Seller by
labor, nor has Seller committed any unfair labor practices.
J. There are no oral or written agreements of employment with any
employee of the Business which are not terminable at will with no
liability for such termination or which have not been terminated and
satisfied in full prior to Closing. Seller has no knowledge of any
facts that would indicate that a significant number of employees of
the Business would not, if offered, accept employment with Purchaser
on a basis no less favorable than that upon which such employees are
currently employed by Seller.
K. Seller has made no commitment to past or present employees regarding
expenses, pension, profit sharing or any other type of compensation,
benefit, option, remuneration or reimbursement that has not been
terminated and satisfied in full prior to Closing or that will not be
satisfied by Seller promptly after Closing, and Seller has no direct
or indirect, express or implied, obligation to pay severance or
termination pay to any officer or employee of the Business, or to pay
any amounts to any consultant, agent, or similar person or entity.
Seller has not granted or become obligated to grant any increases in
wages or salary of, or paid or become obligated to pay any bonus to,
or made or become obligated to make any similar payment to, or granted
or become obligated to grant any benefit to or on behalf of, any
officer, employee or agent of the Business. Seller does not maintain,
sponsor or make, and is not required to make contributions to, any
pension, profit-sharing, stock loans, stock options, thrift or other
retirement plan, medical, hospitalization, vision, dental, life,
disability, vacation or other insurance plan or other funded benefit
plan for the employees of the Business.
L. Purchaser will suffer no loss, cost or expense because of the
non-compliance of the parties hereto with any bulk transfer statute or
law.
M. Except as contemplated hereby, Seller has received no notice of any
plan or intention on the part of any supplier, vendor, or provider of
any other business services or products to the Business to exercise
the right to cancel or terminate or substantially curtail its business
arrangement with Seller, and Seller knows of no fact that would
justify the exercise of such a right.
N. Seller has full power and authority to execute, deliver and perform
this Agreement. All necessary action has been taken by Seller to duly
authorize the execution, delivery and performance of this Agreement
and the transactions contemplated hereby. This Agreement has been duly
executed and delivered and is a valid and binding obligation of
Seller, enforceable in accordance with its terms. Except as
contemplated in Section 4 above, no consent, waiver, approval or
authorization of, or declaration, designation, permit or license of,
or filing, registration or qualification with, any governmental or
regulatory authority, or any lender or lessor or other third party, is
required to be made or obtained in connection with the execution,
delivery and performance of this Agreement or the transactions
contemplated hereby, or to preserve for Purchaser any rights and
benefits enjoyed by Seller on the date hereof following the
consummation of this transaction.
O. The execution, delivery and performance of this Agreement by Seller
will not (1) conflict with or result in any breach of any of the
terms, conditions or provisions of, or with the passage of time or by
the giving of notice, constitute a default under, any contract,
indenture, mortgage, deed of trust, agreement or other instrument to
which Seller is a party or by which any of the property covered hereby
may be bound or affected, (2) result in the creation of any lien,
charge, claim or encumbrance upon any of the properties or assets of
Seller covered hereby, or (3) violate any applicable law or regulation
or judgment or order of any court or governmental agency.
P. The representations, warranties and guarantees and all other
information contained in any exhibits hereto, and in any other
information and written documents furnished by Seller in connection
with the transactions contemplated hereby are true, correct and
complete in all material respects. Such representations, warranties
and guaranties and such documents and information state all material
facts required to be stated therein and do not omit to state any
material facts necessary to make the statements contained herein or
therein not misleading. There is no material misrepresentation in, or
material omission from, any written information or data furnished by
Seller to Purchaser.
8. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Seller that the following are true and correct on and as of the
Closing Date:
A. Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Texas and is qualified to
transact business and is in good standing in the jurisdictions where
it is required to qualify in order to conduct its businesses as
presently conducted. Purchaser has the power and authority to own,
lease or operate all properties and assets now owned, leased or
operated by it and to carry on its businesses as now conducted.
B. Purchaser may execute, deliver and perform this Agreement without the
necessity of Purchaser obtaining any consent, approval, authorization
or waiver or giving any notice or otherwise, except for such consents,
approvals, authorizations, waivers and notices which are expressly
contemplated under this Agreement or which have been obtained and are
unconditional and are in full force and effect and such notices which
have been given.
C. The execution, delivery and performance of this Agreement by Purchaser
will not:
(1) constitute a violation of Purchaser's Restated Articles of
Incorporation or Bylaws;
(2) to Purchaser's knowledge, constitute a violation of any statute,
judgment, order, decree or regulation or rule of any court,
governmental authority or arbitrator applicable or relating to
Purchaser; or
(3) constitute a default under any contract to which Purchaser is a
party except where such default would not have a material adverse
effect upon the ability of Purchaser to perform its obligations
under this Agreement.
D. This Agreement has been duly authorized, executed and delivered by
Purchaser. This Agreement constitutes the legal, valid and binding
obligation of Purchaser, enforceable in accordance with its terms,
except as may be limited by bankruptcy, reorganization, insolvency and
similar laws of general application relating to or affecting the
enforcement of rights of creditors.
9. MUTUAL COVENANTS. Purchaser and Seller further agree as follows:
A. Each party shall bear its own expenses incurred in connection with the
preparation, execution and performance of this Agreement and the
transactions contemplated hereby, including all fees and expenses of
agents, representatives, counsel and accountants. In case of
termination of this Agreement, the obligation of each party to pay its
own expenses shall be subject to any rights of such party arising from
a breach of this Agreement by the other party.
B. In connection with the transactions contemplated by this Agreement,
all information furnished to a party shall be kept confidential by
such party and its associates, agents, employees, consultants and
advisors prior to the Closing Date, or in the event the Closing does
not occur, at all times, and the same will not be used in any manner
adverse to the furnishing party. In the event the Closing does not
occur, all such information in any tangible form shall be returned
immediately to the furnishing party. Neither party hereto shall issue
any press release or make any public statement regarding the
transactions contemplated by this Agreement without obtaining the
prior consent of the other party, which consent shall not be
unreasonably withheld.
10. INDEMNIFICATION.
A. Except as otherwise expressly provided in this Section 10, Seller
shall defend, indemnify and hold harmless Purchaser and each of
Purchaser's shareholders, affiliates, officers, directors, employees,
agents, successors and assigns (Purchaser and such persons and
entities, collectively, "Purchaser's Indemnified Persons"), and shall
reimburse Purchaser's Indemnified Persons, for, from and against each
and every demand, claim, loss, liability, judgment, damage, cost and
expense (including, without limitation, interest, penalties, costs of
preparation and investigation, and the reasonable fees, disbursements
and expenses of attorneys, accountants and other professional
advisors) (collectively, the "Losses") imposed on or incurred by
Purchaser's Indemnified Persons, directly or indirectly, relating to,
resulting from or arising out of any inaccuracy in any representation
or warranty of Seller in any respect, whether or not Purchaser's
Indemnified Persons relied thereon or had knowledge thereof, or any
breach or nonfulfillment of any covenant, agreement or other
obligation of Seller under this Agreement or any certificate or other
document delivered or to be delivered pursuant hereto or any tax
filing or return or payment made, or position taken by Seller, which
any authority challenges and which results in assertion of Losses
against Purchaser.
B. Except as otherwise expressly provided in this Section 10, Purchaser
shall defend, indemnify and hold harmless Seller and each of Seller's
shareholders, affiliates, officers, directors, employees, agents,
successors and assigns (Seller and such persons, collectively,
"Seller's Indemnified Persons"), and shall reimburse Seller's
Indemnified Persons, for, from and against all Losses imposed on or
incurred by Seller's Indemnified Persons, directly or indirectly,
relating to, resulting from or arising out of (i) any inaccuracy in
any representation or warranty of Purchaser in any respect, whether or
not Seller's Indemnified Persons relied thereon or had knowledge
thereof, or any breach or nonfulfillment of any covenant, agreement or
other obligation of Purchaser under this Agreement or any certificate
or other document delivered or to be delivered pursuant hereto; (ii)
obligations maturing after the Closing in connection with the
liabilities fisted on Exhibit "C"; or (iii) the ownership, use,
possession or operation of the Business from and after the Closing.
C. If any action, claim or proceeding shall be brought or asserted by one
or more third parties against a party hereto or any successor or
indemnified person related thereto (the "Indemnified Person") in
respect of which indemnity may be sought under this Section 10 from an
indemnifying person or any successor thereto (the "Indemnifying
Person"), the Indemnified Person shall give prompt written notice of
such action, claim or proceeding, together with a copy of such claim,
process or other legal pleading, to the Indemnifying Person, who shall
assume the defense thereof, including the employment" of counsel
reasonably satisfactory to the indemnified Person and the payment of
all expenses; except that any delay or failure to so notify the
Indemnifying Person shall relieve the Indemnifying Person of its
obligations hereunder only to the extent, if at all, that it is
prejudiced by reason of such delay or failure. The Indemnified Person
shall have the right to employ separate counsel in any of the
foregoing actions, claims or proceedings and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at
the expense of the Indemnified Person unless both the Indemnified
Person and the Indemnifying Person are named as parties and the
Indemnified Person shall in good faith determine that representation
by the same counsel is inappropriate. In the event that the
Indemnifying Person, within ten days after notice of any such action,
claim or proceeding (or, if earlier, by the 10th day preceding the day
on which an answer or other pleading must be served in order to
prevent judgment by default in favor of the person asserting such
action, claim or proceeding), fails to assume the defense thereof, the
Indemnified Person shall have the right (upon further notice to the
Indemnifying Person) to undertake the defense, compromise or
settlement of such action, claim or proceeding for the account and at
the risk of the Indemnifying Person and at the Indemnifying Person's
expense, subject to the right of the Indemnifying Person to assume the
defense of such action, claim or proceeding with counsel reasonably
satisfactory to the Indemnified Person at any time prior to the
settlement, compromise or final determination thereof. Anything in
this Section 10 to the contrary notwithstanding, the Indemnifying
Person shall not, without the Indemnified Persons prior written
consent, settle or compromise any action, claim or proceeding, or
consent to the entry of any judgment with respect to any action, claim
or proceeding for anything other than money damages paid by the
Indemnifying Person, and then only if the claimant provides to the
Indemnified Person a release from all liability in respect of such
action, claim or proceeding. The Indemnifying Person may, without the
Indemnified Person's prior written consent, settle or compromise any
such action, claim or proceeding or consent to entry of any judgment
with respect to any such action, claim or proceeding that requires
solely the payment of money damages by the Indemnifying Person, and
that includes as an unconditional term thereof the release by the
claimant or the plaintiff of the Indemnified Person from all liability
in respect of such action, claim or proceeding. The Indemnified Party
and the Indemnifying Party will cooperate with all reasonable requests
of the other. As a condition to asserting any rights under this
Section 10, each Purchaser's Indemnified Person must appoint
Purchaser, and each Seller's Indemnified Person must appoint Seller,
as its sole agent for all matters relating to any claim hereunder.
D. The remedies provided in this Section 10 shall not be exclusive of any
other rights and remedies available by one party against the other,
either in law or in equity. The foregoing indemnification is given
solely for the purpose of protecting the parties to this Agreement and
the persons in the capacities named in this Section 10 and shall not
be deemed extended to, or interpreted in any manner to confer any
benefit, right or cause of action upon any other person.
11. RIGHT OF ACCESS. It is agreed that, after the Closing, Seller shall
have, upon reasonable notice, the right of reasonable access to the accounts,
books, records and other information relating to the Business to meet any
requirements imposed upon Seller by any statute, code or rule of law. Purchaser
shall not be required to keep or maintain such items longer than it normally
retains its own such items.
12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND LIMITATION AS TO
KNOWLEDGE. The representations and warranties of the parties shall survive the
Closing. Whenever a statement regarding the existence or absence of facts in
this Agreement is qualified by a phrase such as "to such person's knowledge,"
"known to such person," or variations thereof, it is intended by the parties
that the only information to be attributed to such person is information
actually or constructively known to (i) such person, in the case of an
individual, or (ii) in the case of a corporation an officer or managerial
employee as a result of him or her having devoted substantive attention to
matters of such nature during the ordinary course of his or her employment. A
person shall be deemed to have "constructive knowledge" of those matters which
the individual involved could reasonably be expected to have discovered as a
result of undertaking an investigation of such a scope and extent as a
reasonably prudent person would undertake concerning the particular subject
matter during the ordinary course of conducting his or her business affairs.
13. GOVERNING LAW; BINDING EFFECT; SEVERABILITY. This Agreement shall be
construed under and in accordance with the laws of the State of Texas, without
regard for conflict of law rules. All of the terms, agreements, covenants,
warranties, representations, promises and conditions contained in this Agreement
shall apply to, be binding upon and inure to the benefit of the parties hereto
and their respective heirs, executors, administrators, legal representatives,
successors and assigns, and shall survive the Closing hereunder. In case any one
or more of the provisions contained in this Agreement or any instrument(s)
executed pursuant to the terms of this Agreement shall be held to be invalid,
illegal or unenforceable in any respect for any reason, such invalidity,
illegality or unenforceability shall not affect any other provision hereof, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision(s) had never been contained herein. In lieu of any invalid, illegal or
unenforceable provision herein, there shall be added automatically as a part of
this Agreement, a provision as similar in its terms to such invalid, illegal or
unenforceable provision as may be possible and be valid, legal and enforceable.
14. ENTIRE AGREEMENT; MODIFICATION. This Agreement supersedes any and all
other prior understandings and agreements, either oral or in writing, between
the parties hereto with respect to the subject matter hereof and constitutes the
sole and only agreement between the parties with respect to the matter covered
hereby, except that the obligations of any party under any agreement executed
pursuant to this Agreement shall not be affected by this Section 14. Each party
to this Agreement acknowledges that no representations, inducements, warranties,
covenants, guarantees, statements, promises or other agreements, oral or
otherwise, have been made by any party, or by anyone acting on behalf of any
party, which are not embodied herein, and that no representation, inducement,
warranty, covenant, guarantee, agreement, statement or promise not contained in
this writing shall be valid or binding or of any force or effect.
Notwithstanding any investigation by Purchaser of the accounts, books, records
or other business of Seller, Purchaser shall be entitled to rely upon all
agreements, covenants, promises, warranties, representations and guarantees of
Seller and Covenant or contained in this Agreement. No change or modification of
this Agreement shall be valid or binding upon the parties hereto unless such
change or modification shall be in writing and signed by all of the parties
hereto.
15. NO BROKER'S OR FINDER'S FEE. Purchaser represents and warrants that it
has not incurred any obligation to pay any brokerage commission or finder's fee
with regard to the transaction contemplated by this Agreement, and Seller
represents and warrants that any commission or other compensation payable to any
broker(s) engaged by it will be borne by Seller. Purchaser hereby agrees to
fully indemnify Seller, and Seller hereby agrees to fully indemnify Purchaser,
from and against any and all liability (including, without limitation,
reasonable attorneys' fees and other costs of defending any such liability and
enforcing its indemnification) for payment of any commission, fee or other
compensation in the nature of a brokerage commission or finder's fee to any
person, firm or corporation claiming to have acted on behalf of such
indemnifying party in connection with the transaction contemplated by this
Agreement.
16. NOTICES. Except as expressly provided herein, all notices permitted or
required to be given in connection with this Agreement shall be in writing and
shall be delivered either by personal delivery, telegram, or facsimile means, by
certified or registered mail, return receipt requested, or by express courier or
delivery service, addressed to the parties hereto at the following addresses:
Seller: ATN Network, Inc.
Attention: P. Xxxx Xxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
Purchaser: Hispano Television Ventures, Inc.
Attention: Xxxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
or at such other address and number as either party shall have previously
designated by written notice given to the other party in the manner herein and
above set forth. Notices shall be deemed given when received, if sent by
telegram, telex, telecopy or similar facsimile means (confirmation of such
receipt by confirmed facsimile transmission being deemed receipt of
communications sent by telex, telecopy or other facsimile means); and when
delivered and receipted for (or upon the date of attempted delivery if delivery
is refused), if hand delivered, sent by express courier or delivery service, or
sent by certified or registered mail, return receipt requested.
17. ATTORNEYS FEES. If any action, at law or in equity, including any
action for declaratory relief, is brought to enforce or interpret the provisions
of this Agreement or to prove that a party is in breach of this Agreement, the
prevailing party or parties shall be entitled to recover reasonable attorneys'
fees from the other party or parties, which fees may be set by the Court in the
trial of such action or may be enforced in a separate action brought for that
purpose, and which fees shall be in addition to any other relief that may be
awarded.
18. COUNTERPARTS. This Agreement may be executed in separate or multiple
counterparts, each of which shall be deemed an original, but all of which
together shall be considered as one and the same Agreement.
19. CONSTRUCTION; SECTION HEADINGS. Whenever the context hereof shall so
require, the singular shall include the plural, the male gender shall include
the female gender and the neuter, and vice versa. The Section headings contained
in this Agreement are provided for convenience only and form no part of this
Agreement and shall not effect its construction or interpretation.
20. ASSIGNMENT. Neither party may assign this Agreement without the express
written consent of the other party.
21. WAIVER. Neither the failure nor any delay on the part of any party in
exercising any right, power or privilege under this Agreement or the documents
referred to herein shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any right, power or privilege. No
waiver of any provision of this Agreement or of any parties failure to comply
with this Agreement shall be valid unless such waiver is in writing and signed
by the party to be charged with waiving the benefits of such provision or
compliance.
22. SPECIFIC PERFORMANCE. The parties hereto acknowledge that a refusal by
any party to consummate the transactions contemplated hereby will cause
irrevocable harm to the other parties hereto, for which there may be no adequate
remedy at law and for which the ascertainment of damages would be difficult.
Therefore, such parties shall be entitled; in addition to, and without having to
prove the inadequacy of, other remedies at law, to specific performance of this
Agreement, as well as injunctive relief (without being required to post bond or
other security).
23. TIME OF THE ESSENCE. With regard to all time periods set forth or
referred to in this Agreement, time is of the essence.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first above written.
SELLER:
ATN NETWORK, INC., a Texas corporation
By: /S/ P. XXXX XXXXXXX
-----------------------------------
P. Xxxx Xxxxxxx, President
PURCHASER:
Hispano televiSION VENTURES, INC.,
a Texas corporation
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxx, President of
Network Operations
EXHIBIT "A"
LIST OF ASSETS
1. One ARS three bay antenna.
2. One Bext 40,000 watt transmitter.
3. One Sony 5850 one-quarter inch record play deck.
4. Two digital IRD's.
5. One four meter satellite dish.
6. Assorted cables, co-ax and other miscellaneous transmission equipment and
supplies required for transmission of Seller's television station.
EXHIBIT "B"
CONTRACTS ASSUMED
License, dated September 25, 1995, between Tri-Communications, Inc. as
Licensor, and Seller as Licensee.
EXHIBIT "C"
LIABILITIES ASSUMED
License, dated September 25, 1995, between Tri-Communications, Inc. as
Licensor, and Seller, as Licensee.
