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Exhibit 10.188
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ASSET PURCHASE AGREEMENT
BY AND AMONG
DP MEDIA OF MILWAUKEE, INC.
XXXXXX COMMUNICATIONS OF MILWAUKEE-55, INC.
AND
XXXXXX MILWAUKEE LICENSE, INC.
FOR
TELEVISION STATION WPXE(TV),
KENOSHA, WISCONSIN
* * *
JANUARY 26, 1998
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TABLE OF CONTENTS
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RECITALS..........................................................................................................1
AGREEMENTS........................................................................................................1
SECTION 1. DEFINITIONS...........................................................................................1
SECTION 2. PURCHASE AND SALE OF ASSETS...........................................................................3
2.1 Agreement to Sell and Buy.......................................................................3
2.2 Excluded Assets.................................................................................4
2.3 Purchase Price..................................................................................4
2.4 Payment of Purchase Price.......................................................................5
2.5 Assumption of Liabilities and Obligations.......................................................5
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER..............................................................5
3.1 Organization, Standing and Authority............................................................5
3.2 Authorization and Binding Obligation............................................................6
3.3 Absence of Conflicting Agreements...............................................................6
3.4 Governmental Licenses...........................................................................6
3.5 Title to and Condition of Real Property.........................................................7
3.6 Title to and Condition of Tangible Personal Property............................................8
3.7 Assumed Contracts...............................................................................8
3.8 Consents........................................................................................8
3.9 Intangibles.....................................................................................9
3.10 Insurance.......................................................................................9
3.11 Reports.........................................................................................9
3.12 Personnel.......................................................................................9
3.13 Taxes..........................................................................................10
3.14 Claims and Legal Actions.......................................................................10
3.15 Environmental Matters..........................................................................11
3.16 Compliance with Laws...........................................................................12
3.17 Conduct of Business in Ordinary Course.........................................................12
3.18 Full Disclosure................................................................................13
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER..............................................................13
4.1 Organization, Standing and Authority...........................................................13
4.2 Authorization and Binding Obligation...........................................................13
4.3 Absence of Conflicting Agreements..............................................................13
4.4 Full Disclosure................................................................................14
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4.5 Buyer Qualifications...........................................................................14
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING...........................................................14
5.1 Generally......................................................................................14
5.2 Contracts......................................................................................14
5.3 Disposition of Assets..........................................................................14
5.4 Encumbrances...................................................................................14
5.5 Licenses.......................................................................................15
5.6 Rights.........................................................................................15
5.7 Access to Information..........................................................................15
5.8 Insurance......................................................................................15
5.9 Consents.......................................................................................15
5.10 Books and Records..............................................................................15
5.11 Notification...................................................................................16
5.12 Compliance with Laws...........................................................................16
5.13 Compensation...................................................................................16
5.14 No Inconsistent Action.........................................................................16
5.15 Maintenance of Assets..........................................................................16
5.16 Financial Information..........................................................................16
5.17 Financing Leases...............................................................................16
5.18 Programming....................................................................................17
5.19 Preservation of Business.......................................................................17
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS.....................................................................17
6.1 FCC Consent....................................................................................17
6.2 Control of the Station.........................................................................17
6.3 Risk of Loss...................................................................................18
6.4 Confidentiality................................................................................18
6.5 Cooperation....................................................................................18
6.6 Access to Books and Records....................................................................19
6.7 Broker.........................................................................................19
6.8 Environmental Audit............................................................................19
6.9 Engineering Study..............................................................................19
6.10 Sales Tax Filings..............................................................................19
6.11 Appraisal......................................................................................19
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER
AT CLOSING....................................................................................19
7.1 Conditions to Obligations of Buyer.............................................................19
7.2 Conditions to Obligations of Seller............................................................20
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SECTION 8. CLOSING AND CLOSING DELIVERIES.......................................................................21
8.1 Closing........................................................................................21
8.2 Deliveries by Seller...........................................................................21
8.3 Deliveries by Buyer............................................................................22
SECTION 9. TERMINATION..........................................................................................23
9.1 Termination by Seller..........................................................................23
9.2 Termination by Buyer...........................................................................23
9.3 Rights on Termination..........................................................................23
9.4 Escrow Deposit.................................................................................24
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES............................................................24
10.1 Representations and Warranties.................................................................24
10.2 Indemnification by Seller......................................................................25
10.3 Indemnification by Buyer.......................................................................25
10.4 Procedure for Indemnification..................................................................26
10.5 Specific Performance...........................................................................27
10.6 Attorneys' Fees................................................................................27
SECTION 11. MISCELLANEOUS.......................................................................................27
11.1 Fees and Expenses..............................................................................27
11.2 Arbitration....................................................................................28
11.3 Notices........................................................................................28
11.4 Benefit and Binding Effect.....................................................................29
11.5 Further Assurances.............................................................................29
11.6 GOVERNING LAW..................................................................................30
11.7 Headings.......................................................................................30
11.8 Gender and Number..............................................................................30
11.9 Entire Agreement...............................................................................30
11.10 Waiver of Compliance; Consents.................................................................30
11.11 Counterparts...................................................................................30
11.12 Press Releases.................................................................................30
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LIST OF SCHEDULES
Schedule 2.2 -- Excluded Property
Schedule 3.3 -- Consents
Schedule 3.4 -- Licenses
Schedule 3.5 -- Real Property
Schedule 3.6 -- Tangible Personal Property
Schedule 3.7 -- Assumed Contracts
Schedule 3.9 -- Intangibles
Schedule 3.10 -- Insurance Policies
Schedule 3.12 -- Employee Matters
Schedule 3.14 -- Legal Matters
Schedule 8.2(f) -- Form of Opinion of Seller's Counsel
Schedule 8.3(d) -- Form of Opinion of Buyer's Counsel
Schedule 9.4 -- Escrow Agreement
Exhibit A -- Right of First Refusal Agreement
Exhibit B -- Affiliation Agreement
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is dated as of January 26, 1998, by and
between DP Media of Milwaukee, Inc., a Florida corporation ("Buyer"), Xxxxxx
Milwaukee License, Inc. ("Xxxxxx License"), a Florida corporation and Xxxxxx
Communications of Milwaukee-55, Inc., a Florida corporation ("Xxxxxx
Communications" and "Xxxxxx- Licensee" collectively the "Seller").
RECITALS
X. Xxxxxx License is the licensee of Television Station WPXE(TV),
Kenosha, Wisconsin (the "Station"), pursuant to authorizations issued by the
Federal Communications Commission ("FCC"), and Xxxxxx Communications owns the
equipment and property necessary for the operation of the Station.
B. Seller desires to sell, and Buyer wishes to buy, the business of the
Station and substantially all the assets that are owned by Seller or in which
Seller has a transferable interest and which are used or useful in the business
or operations of the Station, for the price and on the terms and conditions set
forth in this Agreement.
AGREEMENTS
In consideration of the above recitals and of the mutual agreements and
covenants contained in this Agreement, Buyer and Seller, intending to be bound
legally, agree as follows:
SECTION 1. DEFINITIONS
The following terms, as used in this Agreement, shall have the meanings
set forth in this Section:
"Assets" means the assets to be sold, transferred, assigned or
delivered to Buyer under this Agreement, as specified in Section 2.1, except
that "Assets" shall not include the Excluded Assets.
"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7 that
are marked to indicate that they are to be assumed by Buyer upon its purchase of
the Station, (ii) all Contracts entered into by Seller in the ordinary course of
business which comply with the provisions of Section 5.2 hereof; and (iii) any
other Contracts entered into by Seller between the date of this Agreement and
the Closing Date that Buyer agrees in writing to assume.
"Closing" means the consummation of the purchase and sale of the Assets
pursuant to this Agreement in accordance with the provisions of Section 8.
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"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to Buyer or
otherwise to consummate the transactions contemplated by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses, and
other agreements (including, without limitation, leases for personal or real
property and employment agreements), written or oral (including any amendments
and other modifications thereto) to which Seller is a party or which are binding
upon Seller and which relate to or affect the Assets or the business or
operations of the Station, and (i) which are in effect on the date of this
Agreement or (ii) which are entered into by Seller between the date of this
Agreement and the Closing Date.
"Excluded Assets" means those assets specified in Section 2.2.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the
assignment of the FCC Licenses to Buyer as contemplated by this Agreement.
"FCC Licenses" means all Licenses and/or Construction Permits issued by
the FCC to Seller in connection with the business or operations of the Station.
"Final Order" means an action by the FCC that has not been reversed,
stayed, enjoined, set aside, annulled, or suspended, and with respect to which
(i) no requests are pending for administrative or judicial review,
reconsideration, appeal, or stay, and (ii) the time for filing any such requests
and the time for the FCC to set aside the action on its own motion have expired.
"Intangibles" means all copyrights, trademarks, trade names, service
marks, service names, licenses, patents, permits, jingles, proprietary
information, technical information and data, machinery and equipment warranties,
and other similar intangible property rights and interests (and any goodwill
associated with any of the foregoing) applied for, issued to, or owned by Seller
or under which Seller is licensed or franchised and which are used or useful in
the business and operations of the Station, together with any additions thereto
between the date of this Agreement and the Closing Date.
"Licenses" means all licenses, permits, and other authorizations issued
by the FCC, the Federal Aviation Administration, or any other federal, state, or
local government authorities to Seller in connection with the conduct of the
business or operations of the
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Station, together with any additions thereto between the date of this Agreement
and the Closing Date.
"Permitted Liens" means liens for taxes not yet due and payable.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, or any
governmental entity.
"Purchase Price" means the purchase price specified in Section 2.3.
"Real Property" means all real property, interests in real property,
leaseholds and subleaseholds, purchase options, easements, licenses, rights of
access, and rights of way, and all buildings and other improvements thereon,
which are used or useful in the business or operations of the Station, together
with any additions thereto between the date of this Agreement and the Closing
Date.
"Tangible Personal Property" means all machinery, equipment, tools,
motor vehicles, furniture, leasehold improvements, office equipment, plant,
inventory, spare parts, and other tangible personal property which is owned by
the Seller or in which Seller has an interest and which is used or useful in the
conduct of the business or operations of the Station, together with any
additions thereto between the date of this Agreement and the Closing Date, but
excluding any Tangible Personal Property consumed in the ordinary course of
business between the date hereof and the Closing Date.
SECTION 2. PURCHASE AND SALE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and conditions set
forth in this Agreement, Seller hereby agrees to sell, transfer, assign and
deliver to Buyer on the Closing Date, and Buyer agrees to purchase and accept,
all of the Assets and property interests owned by Seller or in which Seller has
a property interest which are used or useful in the conduct of the business or
operations of the Station, together with any additions thereto between the date
of this Agreement and the Closing Date, but excluding the assets described in
Section 2.2, free and clear of any claims, liabilities, security interests,
mortgages, liens, pledges, conditions, charges, or encumbrances of any nature
whatsoever (except for Permitted Liens), including, without limitation, the
following:
(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
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(d) The Assumed Contracts;
(e) The Intangibles, including the goodwill of the Station,
if any;
(f) All proprietary information, technical information and
data, machinery and equipment warranties, maps, computer discs and tapes, plans,
diagrams, blueprints, and schematics, including filings with the FCC relating to
the business and operation of the Station, which belong to Seller and are within
its possession and control;
(g) All choses in action of Seller relating to the Station
that are assignable to Buyer as provided herein;
(h) All records required by the FCC to be kept by the Station
and copies of all other books and records which belong to Seller and are within
its possession and control relating to the business or operations of the Station
(exclusive of corporate, financial and accounting records), including executed
copies of the Assumed Contracts; and
2.2 Excluded Assets. The Excluded Assets shall include the following:
(a) Seller's cash on hand as of the Closing and all other cash in
any of Seller's bank or savings accounts; any insurance policies, letters of
credit, or other similar items and cash surrender value in regard thereto; the
Station's accounts receivable; and any stocks, bonds, certificates of deposit
and similar securities or other investments;
(b) All corporate and accounting records of Seller and copies of
all other books and records relating to the business and operations of the
Station; and
(c) Any pension, profit-sharing or employee benefit plans, and any
collective bargaining agreements; and
(d) All property listed on Schedule 2.2 hereto.
2.3 Purchase Price. The Purchase Price for the Assets shall be Six
Million Dollars ($6,000,000), adjusted as provided below:
(a) Prorations. The Purchase Price shall be increased or decreased
as required to effectuate the proration of expenses as of 11:59 p.m. local time,
on the day prior to the Closing Date. All expenses arising from the operation of
the Station, including business and license fees, utility charges, real and
personal property taxes and assessments levied against the Assets, property and
equipment rentals, applicable copyright or other fees, sales and service
charges, taxes (except for taxes arising from the transfer of the Asset under
this Agreement which shall be governed by Section 11.1 hereof), prepaid time
sales
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agreements, FCC regulatory fees, and similar prepaid and deferred items, shall
be prorated between Buyer and Seller such that Seller shall be solely
responsible for all such expenses, costs, and liabilities allocable to the
period prior to the Closing Date, and Buyer shall be solely responsible for all
such expenses, costs, and liabilities allocable to the period on and after the
Closing Date. Notwithstanding the preceding sentence, there shall be no
adjustment for, and Seller shall remain solely liable with respect to, any
Contracts not included in the Assumed Contracts and any other obligation or
liability not being assumed by Buyer in accordance with Section 2.5.
(b) Manner of Determining Adjustments. Any adjustments will,
insofar as feasible, be determined and paid on the Closing Date, with final
settlement and payment by the appropriate party occurring no later than sixty
(60) days after the Closing Date or such other date as the parties shall
mutually agree upon in writing.
2.4 Payment of Purchase Price. The Purchase Price shall be paid by
Buyer to Seller by wire transfer of immediately available funds pursuant to wire
instructions provided by Seller to Buyer at least two (2) days prior to Closing.
2.5 Assumption of Liabilities and Obligations. As of the Closing Date,
Buyer shall assume and undertake to pay, discharge, and perform all obligations
and liabilities of the Seller under the Licenses and the Assumed Contracts
insofar as they relate to the time on and after the Closing Date, and arise out
of events related to Buyer's ownership of the Assets or its operation of the
Station on or after the Closing Date. Buyer shall not assume any other
obligations or liabilities of Seller, including (i) any obligations or
liabilities under any Contract not included in the Assumed Contracts, (ii) any
obligations or liabilities under the Assumed Contracts relating to the period
prior to the Closing Date, (iii) any claims or pending litigation or proceedings
relating to the operation of the Station prior to the Closing, (iv) any
obligations or liabilities arising under agreements entered into other than the
Assumed Contracts, (v) any obligation to any employee of the Station for
severance benefits, vacation time, or sick leave accrued prior to the Closing
Date, (vi) any obligations or liabilities caused by, arising out of, or
resulting from any action or omission of Seller prior to the Closing, and all
such obligations and liabilities shall remain and be the obligations and
liabilities solely of Seller, or (vii) any obligations or liabilities of Seller
under any employee pension, retirement, or other benefit plans or collective
bargaining agreements.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization, Standing and Authority. Seller is a corporation
duly organized, validly existing, and in good standing under the laws of Florida
and duly qualified, in good standing and authorized to transact business in
Wisconsin. Seller has all requisite corporate
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power and authority (i) to own, lease, and use the Assets as now owned, leased,
and used, (ii) to conduct the business operations of the Station as now
conducted, and (iii) to execute and deliver this Agreement and the documents
contemplated hereby, and to perform and comply with all of the terms, covenants,
and conditions to be performed and complied with by Seller hereunder and
thereunder. Seller is not a participant of any joint venture or partnership with
any person or entity with respect to the operations of the Station or any of the
Assets.
3.2 Authorization and Binding Obligation. The execution, delivery, and
performance of this Agreement by Seller has been duly authorized by all
necessary corporate actions on the part of Seller. This Agreement has been duly
executed and delivered by Seller and, assuming the due execution and delivery
hereof by Buyer, constitutes the legal, valid, and binding obligation of Seller,
enforceable against Seller in accordance with its terms except as the
enforceability of this Agreement may be affected by bankruptcy, insolvency, or
similar laws affecting creditors' rights generally, and by judicial discretion
in the enforcement of equitable remedies.
3.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents listed on Schedule 3.3, the execution, delivery and performance of this
Agreement and the documents contemplated hereby (with or without the giving of
notice, the lapse of time, or both): (i) do not require the consent of any third
party; (ii) will not conflict with, 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 in a
proceeding involving Seller; (iii) will not conflict with, constitute grounds
for termination of, result in a breach of, constitute a default under, or
accelerate or permit the acceleration of any performance required by the terms
of, any agreement, instrument, license, or permit to which Seller is a party or
by which Seller may be bound; (iv) will not create any claim, liability,
mortgage, lien, pledge, condition, charge, or encumbrance of any nature
whatsoever upon any of the Assets; and (v) will not conflict with any provision
of Seller's Articles of Incorporation or By-laws.
3.4 Governmental Licenses. Except as set forth on Schedule 3.4, (i)
Schedule 3.4 includes a true and complete list of the Licenses and lists pending
applications affecting the Licenses; (ii) Seller has delivered to Buyer true and
complete copies of the Licenses listed on such Schedule (including any amendment
and other modifications thereto), (iii) the Licenses have been validly issued,
and Seller is the authorized legal holder thereof, (iv) the Licenses listed on
Schedule 3.4 comprise all of the licenses, permits, and other authorizations
required from any governmental or regulatory authority for the lawful conduct of
the business and operations of the Station in the manner and to the full extent
they are now conducted, (v) none of the Licenses is subject to any restriction
or condition that would limit the full operation of the Station as now operated,
(vi) the Licenses are in full force and effect, in all material respects, and
the conduct of the business and operations of the Station is in material
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accordance therewith, and (vii) Seller has no reason to believe that any of the
Licenses would not be renewed by the FCC or other granting authority in the
ordinary course. The Station's city of license, as determined by the FCC, is
located within the Milwaukee, Wisconsin Area of Dominant Influence as defined by
the 1991-1992 Area of Dominant Influence Market Guide published by The Arbitron
Co. and the Milwaukee, Wisconsin Designated Market Area as defined by the 0000
Xxxxxx Xxxxxx Television Household Estimates published by Xxxxxxx Media
Research. To the best of Seller's knowledge, on or before October 1, 1996, the
Station made a valid election of must carry with respect to each cable system
located within the Station's Area of Dominant Influence. Except as disclosed on
Schedule 3.4, no cable system on which the Station is entitled to must carry
status has advised the Station of any signal quality or copyright indemnity or
other prerequisite to cable carriage of the Station's signal, and no cable
system has declined or threatened to decline such carriage or failed to respond
to a request for carriage or sought any form of relief from carriage from the
FCC.
3.5 Title to and Condition of Real Property. Schedule 3.5 contains a
complete and accurate description of all the Real Property and Seller's
interests therein (including street address, legal description, owner, and use
and the location of all improvements thereon). The Real Property listed on
Schedule 3.5 comprises all real property interests necessary to conduct the
business and operations of the Station as now conducted. Seller has good and
marketable fee simple title, insurable at standard rates, to all fee estates
(including the improvements thereon) included in the Real Property, free and
clear of all liens, mortgages, pledges, covenants, easements, restrictions,
encroachments, leases, charges, and other claims and encumbrances of any nature
whatsoever, and without reservation or exclusion of any mineral, timber, or
other rights or interests, except for liens for real estate taxes not yet due
and payable and liens disclosed on Schedule 3.5. With respect to each leasehold
or subleasehold interest included in the Real Property being conveyed under this
Agreement, so long as Seller fulfills its obligations under the lease therefor,
Seller has enforceable rights to nondisturbance and quiet enjoyment, and no
third party holds any interest in the leased premises with the right to
foreclose upon Seller's leasehold or subleasehold interest. Seller has full
legal and practical access to the Real Property. All easements, rights-of-way,
and real property licenses relating to the Real Property have been properly
recorded in the appropriate public recording offices. Seller shall cooperate
with Buyer and provide such assistance as Buyer may reasonably request in
connection with Buyer's efforts to obtain on or before Closing, at Buyer's
election and expense, a current survey and, at Buyer's election and at Seller's
expense, a policy of title insurance with respect to the Real Property,
including, without limitation, using its best efforts to cause all lease
agreements relating to the Real Property to be recorded in the appropriate
public recording offices. All towers, guy anchors, and buildings and other
improvements included in the Assets are located entirely on the Real Property
listed in Schedule 3.5. Seller has delivered to Buyer true and complete copies
of all deeds pertaining to the Real Property. All Real Property (including the
improvements thereon) (i) is in good condition and repair consistent with its
present use,
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(ii) is available for immediate use in the conduct of the business and
operations of the Station, and (iii) complies in all material respects with all
applicable building or zoning codes and the regulations of any governmental
authority having jurisdiction. Seller has full legal and practical access to the
Real Property.
3.6 Title to and Condition of Tangible Personal Property. Schedule 3.6
lists all material items of Tangible Personal Property. The Tangible Personal
Property listed on Schedule 3.6 comprises all material items of tangible
personal property used to conduct the business and operations of the Station as
now conducted. Except as described in Schedule 3.6, Seller owns and has good
title to each item of Tangible Personal Property, and none of the Tangible
Personal Property owned by Seller is subject to any security interest, mortgage,
pledge, conditional sales agreement, or other lien or encumbrance, except
Permitted Liens. Each item of Tangible Personal Property is available for
immediate use in the business and operations of the Station. All items of
transmitting and studio equipment included in the Tangible Personal Property (i)
have been maintained in a manner consistent with generally accepted standards of
good engineering practice, and (ii) will permit the Station and any auxiliary
broadcast stations used in the operation of the Station to operate, in all
material respects, in accordance with the terms of the FCC Licenses and the
rules and regulations of the FCC, and with all other applicable federal, state,
and local statutes, ordinances, rules, and regulations.
3.7 Assumed Contracts. Schedule 3.7 is a true and complete list of all
Contracts. Seller has delivered to Buyer true and complete copies of all written
Contracts and true and complete memoranda of all oral Contracts (including any
amendments and other modifications to such Contracts). Other than the Contracts
listed on Schedule 3.7 or any other Schedule to this Agreement, Seller requires
no contract, lease, or other agreement to enable it to carry on its business as
now conducted. All of the Assumed Contracts are in full force and effect, and
are valid, binding, and enforceable in accordance with their terms. To Seller's
knowledge, there is not under any Assumed Contract any default by any party
thereto or any event that, after notice or lapse of time or both, could
constitute a default. Seller is not aware of any intention by any party to any
Assumed Contract (i) to terminate such contract or amend the terms thereof, (ii)
to refuse to renew the Assumed Contract upon expiration of its term, or (iii) to
renew the Assumed Contract upon expiration only on terms and conditions which
are more onerous than those now existing. Except for the need to obtain the
Consents listed in Schedule 3.3, Seller has full legal power and authority to
assign its rights under the Assumed Contracts to Buyer in accordance with this
Agreement, and such assignment will not affect the validity, enforceability, or
continuation of any of the Assumed Contracts.
3.8 Consents. Except for the FCC Consent provided in Section 6.1 and
the other Consents described in Schedule 3.3, no consent, approval, permit, or
authorization of, or declaration to or filing with any governmental or
regulatory authority, or any other third
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party is required (i) to consummate this Agreement and the transactions
contemplated hereby, (ii) to permit Seller to sell, transfer, assign or deliver
the Assets to Buyer, or (iii) to enable Buyer to conduct the business and
operations of the Station in essentially the same manner as such business and
operations are now conducted.
3.9 Intangibles. Schedule 3.9 is a true and complete list of all
material Intangibles (exclusive of those listed in Schedule 3.4), all of which
are valid and in good standing and uncontested. Seller has delivered to Buyer
copies of all documents establishing or evidencing all Intangibles. To the best
knowledge of Seller, Seller is not infringing upon or otherwise acting adversely
to any trademarks, trade names, service marks, service names, copyrights,
patents, patent applications, know-how, methods, or processes owned by any other
person or persons, and there is no claim or action pending, or to the knowledge
of Seller threatened, with respect thereto. The Intangibles listed on Schedule
3.9 comprise all intangible property interests necessary to conduct the business
and operations of the Station as now conducted.
3.10 Insurance. Schedule 3.10 is a true and complete list of all
insurance policies of Seller that insure any part of the Assets or the business
of the Station. All policies of insurance listed in Schedule 3.10 are in full
force and effect and are adequate in amount with respect to, and for the full
value (subject to customary deductibles) of, the Assets, and insure the Assets
against all customary and foreseeable risks.
3.11 Reports. Except as set forth in Schedule 3.4, all returns,
reports, and statements that the Station is currently required to file with the
FCC or place in its Public File or file with any other governmental agency have
been filed, and all reporting requirements of the FCC and other governmental
authorities having jurisdiction over Seller and the Station have been complied
with in all material respects and all of such returns, reports, and statements
are substantially complete and correct as filed. Seller has timely paid to the
FCC all annual regulatory fees required to be paid by Seller with respect to the
FCC Licenses.
3.12 Personnel.
(a) Employees and Compensation. Schedule 3.12 contains a true
and complete list of all employees of the Station, their job description, date
of hire, salary and amount and date of last salary increase. Schedule 3.12 also
contains a true and complete list as of the date of this Agreement of all
employee benefit plans or arrangements applicable to the employees of the
Station and all fixed or contingent liabilities or obligations of Seller with
respect to any person now or formerly employed by Seller at the Station,
including pension or thrift plans, individual or supplemental pension or accrued
compensation arrangements, contributions to hospitalization or other health or
life insurance programs, incentive plans, bonus arrangements, and vacation, sick
leave, disability and termination arrangements or policies, including workers'
compensation policies, and a description of all
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fixed or contingent liabilities or obligations of Seller with respect to any
person now or formerly employed at the Station or any person now or formerly
retained as an independent contractor at the Station.
(b) Labor Relations. Seller is not a party to or subject to any
collective bargaining agreements with respect to the Station. Seller has no
written or oral contracts of employment with any employee of the Station, other
than those listed in Schedule 3.7.
(c) Liabilities. Seller has no liability of any kind to or in
respect of any employee benefit plan, including withdrawal liability under
Section 4201 of ERISA. Seller has not incurred any accumulated funding
deficiency within the meaning of ERISA or Section 4971 of the Internal Revenue
Code. Seller has not failed to make any required contributions to any employee
benefit plan. The Pension Benefit Guaranty Corporation has not asserted that
Seller has incurred any liability in connection with any such plan. No lien has
been attached and no person has threatened to attach a lien on any property of
Seller as a result of a failure to comply with ERISA.
3.13 Taxes. Seller has filed or caused to be filed all federal income
tax returns and all other federal, state, county, local, or city tax returns
which are required to be filed, and it has paid or caused to be paid all taxes
shown on those returns or on any tax assessment received by it to the extent
that such taxes have become due. There are no governmental investigations or
other legal, administrative, or tax proceedings pursuant to which Seller is or
could be made liable for any taxes, penalties, interest, or other charges, the
liability for which could extend to Buyer as transferee of the business of the
Station, and no event has occurred that could impose on Buyer any transferee
liability for any taxes, penalties, or interest due or to become due from
Seller.
3.14 Claims and Legal Actions. Except for any FCC rulemaking
proceedings generally affecting the broadcasting industry, and except as set
forth on Schedule 3.14, there is no claim, legal action, counterclaim,
arbitration, governmental investigation or other legal, administrative or tax
proceeding, nor any order, decree or judgment, in progress or pending, or to the
knowledge of Seller threatened, against or relating to Seller with respect to
its ownership or operation of the Station or otherwise relating to the Assets or
the business or operations of the Station, nor does Seller know or have reason
to be aware of any basis for the same. In particular, but without limiting the
generality of the foregoing, and except as forth on Schedule 3.14, to the best
of Seller's knowledge, there are no applications, complaints or proceedings
pending or, to the best of its knowledge, threatened (i) before the FCC relating
to the business or operations of the Station other than rule making proceedings
which affect the television industry generally, (ii) before any federal or state
agency relating to the business or operations of the Station involving charges
of illegal discrimination under any federal or state employment laws or
regulations, or (iii) before any federal, state, or
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local agency relating to the business or operations of the Station involving
zoning issues under any federal, state, or local zoning law, rule, or
regulation.
3.15 Environmental Matters.
(a) Seller has complied and is in compliance in all material
respects with all laws, rules, and regulations of all federal, state, and local
governments (and all agencies thereof) concerning the environment, public health
and safety, and employee health and safety, and no charge, complaint, action,
suit, proceeding, hearing, investigation, claim, demand, or notice has been
filed or commenced against Seller in connection with its ownership or operation
of the Station or the Assets alleging any failure to comply with any such law,
rule, or regulation.
(b) To the best of Seller's knowledge, Seller has no liability
relating to its ownership and operation of the Station or the Assets (and there
is no basis related to the past or present operations, properties, or facilities
of Seller for any present or future charge, complaint, action, suit, proceeding,
hearing, investigation, claim, or demand against Seller giving rise to any such
liability) under any law, rule, or regulation of any federal, state, or local
government (or agency thereof) concerning release or threatened release of
hazardous substances, public health and safety, or pollution or protection of
the environment.
(c) To the best of Seller's knowledge, Seller has no liability
relating to its ownership and operation of the Station or the Assets (and Seller
has not handled or disposed of any substance, arranged for the disposal of any
substance, or owned or operated any property or facility in any manner that
could form the basis for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand (under the common law or
pursuant to any statute) against Seller giving rise to any such liability) for
damage to any site, location, or body of water (surface of subsurface) or for
illness or personal injury.
(d) To the best of Seller's knowledge, Seller has no liability
relating to its ownership and operation of the Station or the Assets (and there
is no basis for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand against Seller giving rise
to any such liability) under any law, rule, or regulation of any federal, state,
or local government (or agency thereof) concerning employee health and safety.
(e) In connection with its ownership or operation of the Station
or the Assets, Seller has obtained and been in material compliance with all of
the terms and conditions of all permits, licenses, and other authorizations
which are required under, and has complied in all material respects with all
other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules, and timetables which are
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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.
(f) To the best of Seller's knowledge, all properties and
equipment used in the business of the Station and the Assets are and have been
free of asbestos and asbestos- related products, PCB's, dioxins, and Extremely
Hazardous Substances (as defined in Section 302 of the Emergency Planning and
Community Right-to-Know Act).
(g) No pollutant, contaminant, or chemical, industrial, hazardous,
or toxic material or waste has ever been manufactured, buried, stored, spilled,
leaked, discharged, emitted, or released by Seller in connection with its
ownership and operation of the Station or the Assets or, to the best of Seller's
knowledge, after due investigation, by any other party on any Real Property.
3.16 Compliance with Laws. To the best of Seller's knowledge and except
as set forth on Schedule 3.14, Seller is in compliance in all material respects
with the Licenses and all federal, state, and local laws, rules, regulations,
and ordinances applicable or relating to the ownership and operation of the
Station and the Assets. To the best of Seller's knowledge, neither the ownership
or use of the properties of the Station or the Assets nor the conduct of the
business or operations of the Station conflicts with the rights of any other
person or entity.
3.17 Conduct of Business in Ordinary Course. Since February 28, 1997,
Seller has conducted the business and operations of the Station only in the
ordinary course and has not:
(a) Suffered any material adverse change in the assets or
properties of the Station, including any damage, destruction, or loss affecting
any assets used or useful in the conduct of the business of the Station;
(b) Made any sale, assignment, lease, or other transfer of any of
the Station's properties other than in the normal and usual course of business
with suitable replacements being obtained therefor;
(c) Canceled any debts owed to or claims held by Seller with
respect to the Station, except in the normal and usual course of business;
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(d) Suffered any material write-down of the value of any Assets or
any material write-off as uncollectible of any accounts receivable of the
Station; or
(e) Transferred or granted any right under, or entered into any
settlement regarding the breach or infringement of, any license, patent,
copyright, trademark, trade name, franchise, or similar right, or modified any
existing right relating to the Station.
3.18 Full Disclosure. No representation or warranty made by Seller in
this Agreement or in any certificate, document, or other instrument furnished or
to be furnished by Seller pursuant hereto contains or will knowingly contain any
untrue statement of a material fact, or omits or will omit to state any material
fact required to make any statement made herein or therein not misleading.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization, Standing and Authority. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Florida and at Closing will be duly qualified to conduct business as a foreign
corporation in the State of Wisconsin. Buyer has all requisite corporate 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 and
thereunder.
4.2 Authorization and Binding Obligation. The execution, delivery, and
performance of this Agreement by Buyer have been duly authorized by all
necessary actions on the part of Buyer. This Agreement has been duly executed
and delivered by Buyer and constitutes the legal, valid, and binding obligation
of Buyer, enforceable against Buyer in accordance with its terms except as the
enforceability of this Agreement may be affected by bankruptcy, insolvency, or
similar laws affecting creditors' rights generally and by judicial discretion in
the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents, the execution, delivery, and performance by Buyer of this Agreement
and the documents contemplated hereby (with or without the giving of notice, the
lapse of time, or both): (i) do not require the consent of any third party; (ii)
will not conflict with the Articles of Incorporation or Bylaws of Buyer; (iii)
will not conflict with, result in a breach of, or constitute a default under,
any law, judgment, order, injunction, decree, rule, regulation, or ruling of any
court or governmental instrumentality; (iv) will not conflict with, constitute
grounds for termination of, result in a breach of, constitute a default under,
or accelerate or
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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 Assets or operate the
Station.
4.4 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 knowingly contain any
untrue statement of a material fact.
4.5 Buyer Qualifications. Buyer is legally, financially and otherwise
qualified to be the licensee of, acquire, own and operate the Station under the
Communications Act of 1934, as amended, and the rules, regulations and policies
of the FCC. Buyer knows of no fact that would, under existing law and the
existing rules, regulations, policies and procedures of the FCC disqualify Buyer
as assignee of the FCC Licenses or as the owner and operator of the Station.
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING
5.1 Generally. Between the date of this Agreement and the Closing Date,
Seller shall operate the Station in the ordinary course of business in
accordance with its past practices (except where such conduct would conflict
with the following covenants or with Seller's other obligations under this
Agreement), and in accordance with the other covenants in this Section 5.
5.2 Contracts. Seller will not, without the prior written consent of
Buyer, enter into any contract or commitment relating to the Station or the
Assets, or amend or terminate any Assumed Contract (or waive any material right
thereunder), or incur any obligation (including obligations relating to the
borrowing of money or the guaranteeing of indebtedness) that will be binding on
Buyer after Closing. Prior to the Closing Date, Seller shall deliver to Buyer a
list of all Contracts entered into between the date of this Agreement and the
Closing Date, together with copies of such Contracts.
5.3 Disposition of Assets. Seller shall not sell, assign, lease, or
otherwise transfer or dispose of any of the Assets, except where no longer used
or useful in the business or operations of the Station or in connection with the
acquisition of replacement property of equivalent kind and value.
5.4 Encumbrances. Seller shall not create, assume or permit to exist
any claim, liability, mortgage, lien, pledge, condition, charge, or encumbrance
of any nature whatsoever upon the Assets, except for (i) liens which shall be
removed prior to the Closing Date, (ii) liens for current taxes not yet due and
payable, and (iii) mechanics' liens and other similar
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liens, which shall be removed prior to the Closing Date either by payment or
posting an appropriate indemnity bond.
5.5 Licenses. Seller shall not cause or permit, by any act or failure
to act, any of the Licenses issued by the FCC to expire or to be revoked,
suspended, or modified, or take any action that could cause the FCC or any other
governmental authority to institute proceedings for the suspension, revocation,
or adverse modification of any of the Licenses. Seller shall not fail to
prosecute with due diligence any applications to any governmental authority in
connection with the operation of the Station.
5.6 Rights. Seller shall not knowingly waive any material right
relating to the Station or any of the Assets. Seller shall not take any action
to intentionally cause any cable system located within the Station's Area of
Dominant Influence to refuse to carry the Station's signal.
5.7 Access to Information. Seller shall give Buyer and its counsel,
accountants, engineers, and other authorized representatives reasonable access
during normal business hours to the Assets and to all other properties,
equipment, books, records, Contracts, and documents relating to the Station for
the purpose of audit and inspection and will furnish or cause to be furnished to
Buyer or its authorized representatives all material information with respect to
the affairs and business of the Station that Buyer may reasonably request
(including any operations reports produced with respect to the affairs and
business of the Station).
5.8 Insurance. Seller shall maintain substantially the same insurance
coverage provided by insurance policies on the Station and the Assets effective
on the date of this Agreement..
5.9 Consents. Seller shall use its best efforts to obtain the Consents
and estoppel certificates described in Section 8.2(b)-(c), without any material
change in the terms or conditions of any Contract or License as in effect on the
date of this Agreement. Seller shall advise Buyer of any communications it
receives concerning the Consents and of any conditions proposed, considered, or
requested for any of the Consents. Upon Buyer's request, Seller shall cooperate
with Buyer and use its best efforts to obtain from the lessors under each Real
Property lease such estoppel certificates and consents to the collateral
assignment of the lessee's interest under each such lease as Buyer or Buyer's
lenders may request.
5.10 Books and Records. Seller shall maintain its books and records
relating to the Station and Assets in accordance with past practices.
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5.11 Notification. Seller shall promptly notify Buyer in writing of any
material change in any of the information contained in Seller's representations
and warranties contained in Section 3 of this Agreement.
5.12 Compliance with Laws. Seller shall comply in all material respects
with all laws, rules, and regulations applicable or relating to the ownership
and operation of the Station or the Assets.
5.13 Compensation. Seller shall not increase the compensation, bonuses,
or other benefits payable or to be payable to any person employed in connection
with the conduct of the business or operations of the Station, except in
accordance with past practices.
5.14 No Inconsistent Action. Seller shall not take any action that
is inconsistent with its obligations under this Agreement or that could hinder
or delay the consummation of the transactions contemplated by this Agreement.
5.15 Maintenance of Assets. Seller shall use its best efforts and take
all reasonable actions to maintain all of the Assets in good condition (ordinary
wear and tear excepted), and use, operate, and maintain all of the Assets in a
reasonable manner and in accordance with the terms of the FCC Licenses, all
rules and regulations of the FCC and generally accepted standards of good
engineering practice. Seller shall maintain inventories of spare parts and
expendable supplies at levels consistent with past practices. If any loss,
damage, impairment, confiscation, or condemnation of or to any of the Assets
occurs, Seller shall repair, replace, or restore the Assets to their prior
condition as represented in this Agreement as soon thereafter as possible, and
Seller shall use the proceeds of any claim under any insurance policy solely to
repair, replace, or restore any of the Assets that are lost, damaged, impaired,
or destroyed.
5.16 Financial Information. Seller shall furnish to Buyer such
financial information regarding the Assets and the business or operations of the
Station (including information on payables and receivables ) as Buyer may
reasonably request. All financial information delivered by Seller to Buyer
pursuant to this Section shall be prepared from the books and records of Seller
in accordance with generally accepted accounting principles consistently
applied, shall accurately reflect the books, records, and accounts of the
Station, shall be complete and correct in all material respects, and shall
present fairly the financial condition of the Station as at their respective
dates and results of operations for the periods then ended.
5.17 Financing Leases. Seller will satisfy at or prior to Closing all
outstanding obligations under capital and financing leases with respect to any
of the Assets and obtain good title to the Assets leased by Seller pursuant to
those leases so that those Assets shall be transferred to Buyer at Closing free
of any interest of the lessors.
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5.18 Programming. Seller shall not make any material changes in the
broadcast hours or in the percentages of types of programming broadcast by the
Station, or make any other material change in the Station's programming
policies.
5.19 Preservation of Business. Seller shall use its best efforts to
preserve the business and organization of the Station and use its best efforts
to keep available to the Station its present employees and the Station's present
relationships with suppliers and others having business relations with it, to
the end that the business and operations of the Station shall be unimpaired at
the Closing Date.
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC Consent.
(a) The assignment of the FCC Licenses in connection with the
purchase and sale of the Station and the Assets pursuant to this Agreement shall
be subject to the prior consent and approval of the FCC.
(b) Seller and Buyer shall promptly prepare an appropriate
application for the FCC Consent and shall file the application with the FCC
within three (3) business days of the execution of this Agreement. The parties
shall prosecute the application with all reasonable diligence and otherwise use
their reasonable best efforts to obtain a grant of such application as
expeditiously as practicable. Each party agrees to comply with any condition
imposed on it by the FCC Consent, except that no party shall be required to
comply with a condition if (1) the condition was imposed on it as the result of
a circumstance the existence of which does not constitute a breach by the party
of any of its representations, warranties, or covenants under this Agreement,
and (2) compliance with the condition would have a material adverse effect upon
it. Buyer and Seller shall oppose any requests for reconsideration or judicial
review of the FCC Consent, provided, however, that the parties shall continue to
have all rights available to them pursuant to Section 9 hereof. If the Closing
shall not have occurred for any reason within the original effective period of
the FCC Consent, and neither party shall have terminated this Agreement under
Section 9, the parties shall jointly request an extension of the effective
period of the FCC Consent. No extension of the FCC Consent shall limit the
exercise by either party of its rights under Section 9.
6.2 Control of the Station. Prior to Closing, Buyer shall not, directly
or indirectly, control, supervise, direct, or attempt to control, supervise, or
direct, the operations of the Station; such operations, including complete
control and supervision of all of the Station programs, employees, and policies,
shall be the sole responsibility of the Seller until the Closing.
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6.3 Risk of Loss.
(a) The risk of any loss, damage, impairment, confiscation, or
condemnation of any of the Assets from any cause whatsoever shall be borne by
Seller at all times prior to the Closing.
(b) If any damage or destruction of the Assets or any other event
occurs which (i) causes the Station to cease broadcasting operations for a
period of seven or more days or (ii) prevents in any material respect signal
transmission by the Station in the normal and usual manner and Seller fails to
restore or replace the Assets so that normal and usual transmission is resumed
within 30 days of the damage, destruction or other event, Buyer, in its sole
discretion, may (x) terminate this Agreement forthwith without any further
obligations hereunder upon written notice to Seller or (y) proceed to consummate
the transaction contemplated by this Agreement and complete the restoration and
replacement of the Assets after the Closing Date, in which event Seller shall
deliver to Buyer all insurance proceeds received in connection with such damage,
destruction or other event.
6.4 Confidentiality. Except as necessary for the consummation of the
transaction contemplated by this Agreement, including Buyer's obtaining of
financing related hereto, and except as and to the extent required by law,
including, without limitation, disclosure requirements of federal or state
securities laws and rules and regulations of securities markets, each party will
keep confidential any information obtained from the other party in connection
with the transactions contemplated by this Agreement. Except as provided in this
Paragraph 6.4 each party will refrain from disclosing any such information to
any third party. If this Agreement is terminated, each party will return to the
other party all copies of all documents and all other information obtained by
such party from the other party in connection with the transactions contemplated
by this Agreement.
6.5 Cooperation. Buyer and Seller shall cooperate fully with each other
and their respective counsel and accountants in connection with any actions
required to be taken as part of their respective obligations under this
Agreement, and Buyer and Seller shall execute such other documents as may be
necessary and desirable to the implementation and consummation of this
Agreement, and otherwise use their reasonable best efforts to consummate the
transaction contemplated hereby and to fulfill their obligations under this
Agreement. Notwithstanding the foregoing, neither Buyer nor Seller shall have
any obligation (i) to expend funds to obtain any of the Consents or (ii) to
agree to any material adverse change in any License or Assumed Contract to
obtain a Consent required with respect thereto; provided, however, that Seller
shall be required to expend funds, if necessary, to cure any defaults in order
to obtain Consents and either party shall be required to expend funds in respect
of normal and usual filing fees and the fees of professional advisors.
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6.6 Access to Books and Records. Seller shall provide Buyer access and
the right to copy for a period of four (4) years from the Closing Date any books
and records relating to the Assets but not included in the Assets. Buyer shall
provide Seller access and the right to copy for a period of four (4) years from
the Closing Date any books and records relating to the Assets that are included
in the Assets.
6.7 Broker. Each of Buyer and Seller represents and warrants that
neither it nor any person or entity acting on its behalf has incurred any
liability for any finders' or brokers' fees or commissions in connection with
the transactions contemplated by this Agreement.
6.8 Environmental Audit. Buyer may, at its option and expense, retain
an environmental consultant to be selected by Buyer to perform a Phase I
environmental survey of the properties of the Station and such survey shall be
completed within 45 days from the date hereof. If the survey discloses any
material environmental hazard or material possibility of future liability for
environmental damages or clean-up costs, Buyer shall so notify Seller no later
than 50 days from the date hereof.
6.9 Engineering Study. Buyer may, at its option and expense, retain an
engineering firm to conduct a proof of performance study of the Station and to
prepare a report on the Station's compliance with customary engineering
practices and all applicable FCC rules, regulations, prescribed practices, and
technical standards and such study and report shall be completed within 30 days
from the date hereof. If the survey discloses any material deficiencies in the
operations or equipment of the Station, Buyer shall so notify Seller no later
than 40 days from the date hereof.
6.10 Sales Tax Filings. Through the Closing Date, Seller shall continue
to file Michigan sales tax returns with respect to the Station, if and to the
extent such returns are required to be filed by applicable law, and shall
concurrently deliver copies of all such returns to Buyer.
6.11 Appraisal. Buyer and Seller agree to allocate the Purchase Price
for tax and recording purposes in accordance with an appraisal conducted by an
appraisal firm with experience in the valuation and appraisal of television
station assets.
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER
AT CLOSING
7.1 Conditions to Obligations of Buyer. All obligations of Buyer at
the Closing are subject at Buyer's option to the fulfillment or waiver (except
the requirement in 7.1(d) of the FCC Consent, which may not be waived) by Buyer
prior to or at the Closing Date of each of the following conditions:
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(a) Representations and Warranties. All representations and
warranties of Seller contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
the Closing Date.
(b) Covenants and Conditions. Seller shall have performed and
complied in all material respects with all covenants, agreements, and conditions
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date.
(c) Consents. All Consents shall have been obtained and delivered
to Buyer without any material adverse change in the terms or conditions of any
agreement or any governmental license, permit, or other authorization.
(d) FCC Consent. The FCC Consent shall have been granted without
the imposition on Buyer of any material conditions that need not be complied
with by Buyer under Section 6.1 hereof, Seller shall have complied with or
accepted any material conditions imposed on it by the FCC Consent, and the FCC
Consent shall have become a Final Order.
(e) Governmental Authorizations. Seller shall be the holder of all
Licenses and there shall not have been any modification of any License that
could have a material adverse effect on the Station or the Assets or the conduct
of its business and operations. No proceeding shall be pending the effect of
which could be to revoke, cancel, fail to renew, suspend, or modify adversely
any material License.
(f) Deliveries. Seller shall have made or stand willing to make
all the deliveries to Buyer set forth in Section 8.2.
(g) Additional Agreements. Buyer and The Infomall TV Network, Inc.
shall have executed an Affiliation Agreement in the form attached hereto as
Exhibit B.
(h) Adverse Change. Subject to Section 6.3 hereof, between the
date of this Agreement and the Closing Date, there shall have been no material
adverse change in the assets, or properties of the Station, including any
damage, destruction, or loss affecting any assets used or useful in the conduct
of the business of the Station.
7.2 Conditions to Obligations of Seller. All obligations of Seller at
the Closing are subject at Seller's option to the fulfillment or waiver (except
the requirement in 7.2(d) of the FCC Consent, which may not be waived) by Seller
prior to or at the Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations and
warranties of Buyer contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
the Closing Date.
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(b) Covenants and Conditions. Buyer shall have performed and
complied in all material respects with all covenants, agreements, and conditions
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date.
(c) Deliveries. Buyer shall have made or stand willing to make all
the deliveries set forth in Section 8.3.
(d) FCC Consent. The FCC Consent shall have been granted without
the imposition on Seller of any material conditions that need not be complied
with by Seller under Section 6.1 hereof and Buyer shall have complied with any
conditions imposed on it by the FCC Consent.
(e) Additional Agreements. Buyer and Xxxxxx Communications
Corporation shall have executed the Right of First Refusal Agreement and Buyer
and The Infomall TV Network, Inc. shall have executed an Affiliation Agreement,
each substantially in the form attached hereto as Exhibit A and B, respectively.
SECTION 8. CLOSING AND CLOSING DELIVERIES
8.1 Closing.
(a) Closing Date. The Closing shall take place at 10:00 a.m. on a
date to be set by Buyer on at least five days' prior written notice to Seller,
that is (i) not earlier than the first business day after the FCC Consent is
granted, and (ii) not later than ten business days following the date upon which
the FCC Consent has become a Final Order. If Buyer fails to specify the date for
Closing pursuant to the preceding sentence prior to the fifth business day after
the date upon which the FCC Consent becomes a Final Order, the Closing shall
take place on the tenth business day after the date upon which the FCC Consent
becomes a Final Order.
(b) 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 such other place that is agreed upon in writing by Buyer and
Seller.
8.2 Deliveries by Seller. Prior to or on the Closing Date, Seller
shall deliver to Buyer the following, in form and substance reasonably
satisfactory to Buyer and its counsel:
(a) Transfer Documents. Subject to the provisions of this
Agreement, duly executed warranty bills of sale, deeds, motor vehicle titles,
assignments, and other transfer documents which shall be sufficient to vest good
and marketable title to the Assets in the name of Buyer, free and clear of all
mortgages, liens, restrictions, encumbrances, claims, and obligations, except
for Permitted Liens.
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(b) Estoppel Certificate. An Estoppel Certificate of the Lessor of
the leasehold interests listed in Schedule 3.5, in a form acceptable to Buyer
and Buyer's lenders.
(c) Consents. An executed copy of any instrument evidencing
receipt of any Consent;
(d) Certificates. Certificates, dated as of the Closing Date,
executed by Seller's President certifying (i) that the representations and
warranties of Seller contained in this Agreement are true and complete in all
material respects as of the Closing Date as though made on and as of that date,
(ii) that Seller has in all material respects performed and complied with all of
its obligations, covenants, and agreements set forth in this Agreement to be
performed and complied with on or prior to the Closing Date, and (iii) such
additional Certificates and confirmations to Buyer's lenders as Buyer may
reasonably request in connection with obtaining financing for the performance of
its payment obligations hereunder.
(e) Licenses, Contracts, Business Records, Etc. Copies of all
Licenses, Assumed Contracts, blueprints, schematics, working drawings, plans,
projections, engineering records, and all files and records used by Seller in
connection with its operations;
(f) Opinions of Counsel. Opinions of Seller's counsel dated as of
the Closing Date, substantially in the form of Schedule 8.2(f) hereto.
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer
shall deliver to Seller the following, in form and substance reasonably
satisfactory to Seller and its counsel;
(a) Purchase Price. The Purchase Price.
(b) Assumption Agreements. Appropriate assumption agreements
pursuant to which Buyer shall assume and undertake to perform Seller's
obligations under the Licenses and Assumed Contracts arising on or after the
Closing Date;
(c) Officer's Certificate. A certificate, dated as of the Closing
Date, executed on behalf of Buyer by its President, certifying (i) that the
representations and warranties of Buyer contained in this Agreement are true and
complete in all material respects as of the Closing Date as though made on and
as of that date, and (ii) that Buyer has in all material respects performed and
complied with all of its obligations, covenants, and agreements set forth in
this Agreement to be performed and complied with on or prior to the Closing
Date;
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(d) Opinion of Counsel. An opinion of Buyer's counsel dated as of
the Closing Date, substantially in the form of Schedule 8.3(d) hereto.
SECTION 9. TERMINATION
9.1 Termination by Seller. This Agreement may be terminated by Seller
and the purchase and sale of the Assets abandoned, if Seller is not then in
material default, upon written notice to Buyer, upon the occurrence of any of
the following:
(a) Conditions. If, on the date that would otherwise be the
Closing Date, any of the conditions precedent to the obligations of Seller set
forth in this Agreement have not been satisfied or waived in writing by Seller.
(b) Judgments. If there shall be in effect on the date that would
otherwise be the Closing Date any judgment, decree, or order, not caused by
Seller, that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred by February
1, 1999.
9.2 Termination by Buyer. This Agreement may be terminated by Buyer
and the purchase and sale of the Station abandoned, if Buyer is not then in
material default, upon written notice to Seller, upon the occurrence of any of
the following:
(a) Conditions. If on the date that would otherwise be the Closing
Date any of the conditions precedent to the obligations of Buyer set forth in
this Agreement have not been satisfied or waived in writing by Buyer.
(b) Judgments. If there shall be in effect on the date that would
otherwise be the Closing Date any judgment, decree, or order, not caused by
Buyer, that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred by February
1, 1999.
(d) Interruption of Service. If any event shall have occurred that
prevented signal transmission of the Station in the normal and usual manner for
a continuous period of seven days.
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 this
Agreement, the parties hereto shall not have any further liability to each other
with respect to the purchase and sale of the
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Assets. If this Agreement is terminated by Seller due to Buyer's material breach
of this Agreement, then Seller shall be entitled to retain the One Hundred
Thousand Dollars ($100,000) held by the Escrow Agent, which shall be liquidated
damages and shall constitute full payment and the exclusive remedy for any
damages suffered by Seller by reason of Buyer's material breach of this
Agreement. Seller and Buyer agree in advance that actual damages would be
difficult to ascertain and that the amount of One Hundred Thousand Dollars
($100,000) is a fair and equitable amount to reimburse Seller for damages
sustained due to Buyer's material breach of any provision of this Agreement.
Buyer shall have all rights and remedies set forth under Section 10.5 hereof or
otherwise available at law or equity.
9.4 Escrow Deposit. Within ten (10) business days, Buyer will have
deposited with the Escrow Agent the sum of One Hundred Thousand Dollars
($100,000) in accordance with the Escrow Agreement in the form of Schedule 9.4
hereof. All such funds deposited with the Escrow Agent shall be held and
disbursed in accordance with the terms of the Escrow Agreement and the following
provisions:
(a) At the Closing, all amounts held by the Escrow Agent pursuant
to the Escrow Agreement, including any interest or other proceeds from the
investment of funds held by the Escrow Agent, shall be disbursed to or at the
direction of Buyer.
(b) If this Agreement is terminated pursuant to Section 9.1 or 9.2
and the Buyer is not in material breach of this Agreement, all amounts held by
the Escrow Agent pursuant to the Escrow Agreement, including any interest or
other proceeds from the investment of funds held by the Escrow Agent, shall be
disbursed to or at the direction of Buyer.
(c) If this Agreement is terminated by Seller due to Buyer's
material breach of this Agreement, then One Hundred Thousand Dollars ($100,000)
of the total amount held by the Escrow Agent pursuant to the Escrow Agreement
shall be disbursed by the Escrow Agent to or at the direction of Seller as
liquidated damages under Section 9.3 above and any interest or other proceeds
from the investment of funds held by the Escrow Agent after payment to Seller of
$100,000 shall be disbursed by the Escrow Agent to or at the direction of Buyer.
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES
10.1 Representations and Warranties. All representations and warranties
contained in this Agreement shall be deemed continuing representations and
warranties and shall survive the closing for a period of twelve (12) months;
provided, however, that as to any representation or warranty made by either the
Buyer or Seller which the other party
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knowingly waives at the Closing, such representation or warranty shall not
survive the Closing. Until the Closing, Buyer and Seller will immediately advise
each other, in a detailed written notice, of any fact or occurrence or any
pending or threatened occurrence of which any of them obtains knowledge and
which (i) (if existing and known at the date of the execution of this Agreement)
would have been required to be set forth or disclosed in or pursuant to this
Agreement or a Schedule hereto, (ii) (if existing and known at any time prior to
or at the Closing) would make the performance by any party of a covenant
contained in this Agreement impossible or make that performance materially more
difficult than in the absence of that fact or occurrence, or (iii) (if existing
and known at the time of the Closing) would cause a condition to any party's
obligations under this Agreement not to be fully satisfied.
10.2 Indemnification by Seller. Seller hereby agrees to indemnify and
hold Buyer harmless against and with respect to, and shall reimburse Buyer for:
(a) Subject to the proviso contained in the first sentence of
Section 10.1, any and all losses, liabilities, or damages resulting from any
untrue representation, breach of warranty, or material omission or
nonfulfillment of any covenant by Seller contained in this Agreement or in any
certificate, schedule, document, or instrument delivered to Buyer under this
Agreement.
(b) Any and all obligations of Seller not assumed by Buyer
pursuant to this Agreement, including any liabilities arising at any time under
any Contract not included in the Assumed Contracts.
(c) Any and all losses, liabilities, or damages contingent or
otherwise resulting from the operation or ownership of the Station prior to the
Closing Date, including any liabilities arising under the Licenses or the
Assumed Contracts which relate to events occurring prior to the Closing Date.
(d) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
10.3 Indemnification by Buyer. Buyer hereby agrees to indemnify and
hold Seller harmless against and with respect to, and shall reimburse Seller
for:
(a) Subject to the proviso contained in the first sentence of
Section 10.1, any and all losses, liabilities, or damages resulting from any
untrue representation, breach of warranty, or material omission or
nonfulfillment of any covenant by Buyer contained in this
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Agreement or in any certificate, Schedule, document, or instrument delivered to
Seller under this Agreement.
(b) Any and all obligations of Seller assumed by Buyer pursuant to
this Agreement.
(c) Any and all losses, liabilities, or damages contingent or
otherwise, resulting from the operation or ownership of the Station on and after
the Closing.
(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 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 as soon as practicable
after written notice of such action, suit, or proceeding was given to Claimant.
(b) With respect to claims solely between the parties, following
receipt of notice from the Claimant of a claim, the Indemnifying Party shall
have thirty days to make such investigation of the claim as the Indemnifying
Party deems necessary or desirable. For the purposes of such investigation, the
Claimant agrees to make available to the Indemnifying Party and/or its
authorized representatives the information relied upon by the Claimant to
substantiate the claim. If the Claimant and the Indemnifying Party agree at or
prior to the expiration of the thirty-day period (or any mutually agreed upon
extension thereof) to the validity and amount of such claim, the Indemnifying
Party shall immediately pay to the Claimant the full amount of the claim. If the
Claimant and the Indemnifying Party do not agree within the thirty-day period
(or any mutually agreed upon extension thereof), the Claimant may seek
appropriate remedy under the arbitration provisions of this Agreement, as
applicable.
(c) With respect to any claim by a third party as to which the
Claimant is entitled to indemnification under this Agreement, the Indemnifying
Party shall have the right at its own expense, to participate in or assume
control of the defense of such claim, and the Claimant shall cooperate fully
with the Indemnifying Party subject to reimbursement for reasonable 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
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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 shall use their reasonable best efforts
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; provided, however, for the purpose of the
procedures set forth in this Section 10.4, any indemnification claims by such
parties shall be made by and through the Claimant.
(f) Notwithstanding anything in this Agreement to the contrary,
neither party shall indemnify or otherwise be liable to the other party for any
breach of a representation or warranty, or for breach of any covenant in this
Agreement except to the extent the losses, obligations, liabilities, costs and
expenses of such party arising therefrom exceed in the aggregate Five Thousand
Dollars ($5,000). The provisions of the foregoing sentence shall not apply to
liabilities assumed by either party pursuant to the adjustments and prorations.
10.5 Specific Performance. The parties recognize that if Seller
breaches this Agreement and refuses to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled, in addition to any other remedies
that may be available, including money damages, to obtain specific performance
of the terms of this Agreement. If any action is brought by Buyer to enforce
this Agreement, Seller shall waive the defense that there is an adequate remedy
at law.
10.6 Attorneys' Fees. In the event of a default by either party which
results in a lawsuit or other proceeding for any remedy available under this
Agreement, the prevailing party shall be entitled to reimbursement from the
other party of its reasonable legal fees and expenses.
SECTION 11. MISCELLANEOUS
11.1 Fees and Expenses. Any federal, state, or local sales or transfer
tax arising in connection with the conveyance of the Assets or the Station by
Seller to Buyer pursuant to this Agreement shall be paid by Seller. Buyer and
Seller shall each pay one-half of the fee payable to the FCC in connection with
the filing of the application for FCC Consent. Except as otherwise provided in
this Agreement, each party shall pay its own expenses incurred in connection
with the authorization, preparation, execution, and performance of this
Agreement, including all fees and expenses of counsel, accountants, agents, and
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representatives, and each party shall be responsible for all fees or
commissions payable to any finder, broker, advisor, or similar person retained
by or on behalf of such party.
11.2 Arbitration. Except as otherwise provided to the contrary below,
any dispute arising out of or related to this Agreement that Seller and Buyer
are unable to resolve by themselves shall be settled by arbitration in the
District of Columbia by a panel of three arbitrators. Seller and Buyer shall
each designate one disinterested arbitrator, and the two arbitrators so
designated shall select the third arbitrator. In the event three arbitrators
have not been chosen pursuant to these rules within 30 days of the date notice
was first given requesting arbitration of a dispute under this provision, the
American Association of Arbitrators shall appoint three 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 Seller and Buyer. The costs and
expenses of the arbitration proceeding shall be assessed between Seller and
Buyer in a manner to be decided by a majority of the arbitrators, and the
assessment shall be set forth in the decision and award of the arbitrators.
Judgment on the award, if it is not paid within thirty days, may be entered in
any court having jurisdiction over the matter. No action at law or suit in
equity based upon any claim arising out of or related to this Agreement shall be
instituted in any court by Seller or Buyer against the other except (i) an
action to compel arbitration pursuant to this Section, (ii) an action to enforce
the award of the arbitration panel rendered in accordance with this Section, or
(iii) a suit for specific performance pursuant to Section 10.5.
11.3 Notices. All notices, demands, and requests required or permitted
to be given under the provisions of this Agreement shall be (i) in writing, (ii)
sent by telecopy (with receipt personally confirmed by telephone), delivered by
hand or by registered or certified mail, return receipt requested, (iii) 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 (iv) addressed as
follows:
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If to Seller: Xx. Xxxxxx X. Xxxxxx
Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
With a copy which Xxxx X. Xxxxx, Xx., Esquire
shall not constitute Dow, Xxxxxx & Xxxxxxxxx, PLLC
notice to: 0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to Buyer: Xx. Xxxxx Xxxxxx
DP Media of Milwaukee, Inc.
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
With a copy which Xxxx X. Xxxxxxxx, Esq.
shall not constitute Xxxxx, Xxxxxxxx & Tannenwald
notice to: 0000 Xxxxx Xxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
or to any other or additional persons and addresses as the parties may from time
to time designate in a writing delivered in accordance with this Section 11.3.
11.4 Benefit and Binding Effect. Neither party hereto may assign this
Agreement without the prior written consent of the other party hereto; provided,
however, that Buyer may assign its rights and obligations under this Agreement
to a wholly-owned subsidiary or commonly controlled affiliate without seeking or
obtaining Seller's prior approval, provided that such assignment does not
relieve Buyer of its responsibilities hereunder, and Buyer may collaterally
assign its rights and interests hereunder to its lenders without seeking or
obtaining Seller's prior approval. Upon any permitted assignment by Buyer or
Seller in accordance with this Section 11.4, all references to "Buyer" herein
shall be deemed to be references to Buyer's assignee and all references to
"Seller" herein shall be deemed to be references to Seller's assignee. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
11.5 Further Assurances. The parties shall take any actions and execute
any other documents that may be necessary or desirable to the implementation
and consummation of this Agreement, including, in the case of Seller, any
additional bills of sale, deeds, or other transfer documents that, in the
reasonable opinion of Buyer, may be necessary to ensure, complete, and evidence
the full and effective transfer of the Assets and the Station to Buyer pursuant
to this Agreement.
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11.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED, AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT REGARD TO
THE CHOICE OF LAW PROVISIONS THEREOF).
11.7 Headings. The headings in this Agreement are included for ease of
reference only and shall not control or affect the meaning or construction of
the provisions of this Agreement.
11.8 Gender and Number. Words used in this Agreement, regardless of
the gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine, or neuter, and any other number,
singular or plural, as the context requires.
11.9 Entire Agreement. This Agreement, the schedules, hereto, and all
documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between Buyer and Seller with respect to the subject matter hereof. This
Agreement supersedes all prior negotiations between the parties and cannot be
amended, supplemented, or changed except by an agreement in writing that makes
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 Counterparts. This Agreement may be signed in counterparts with
the same effect as if the signature on each counterpart were upon the same
instrument.
11.12 Press Releases. Prior to filing the application for FCC
Consent, neither party shall publish any press release, make any other public
announcement or otherwise communicate with any news media concerning this
Agreement or the transactions contemplated hereby without the prior written
consent of the other party; provided, however,
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that nothing contained herein shall prevent either party from promptly making
all filings with governmental authorities as may, in its judgment, be required
or advisable in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby, in which case the
other party shall be first notified in writing.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
XXXXXX COMMUNICATIONS OF
MILWAUKEE-55, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
XXXXXX MILWAUKEE LICENSE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
DP MEDIA OF MILWAUKEE, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
