Exhibit 10.50
OPTION AGREEMENT
AMONG
MISSION BROADCASTING OF JOPLIN, INC.,
XXXXX XXXXX
and
NEXSTAR BROADCASTING OF JOPLIN, L.L.C.
DATED AS OF
April __, 2002
TABLE OF CONTENTS
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ARTICLE I
GRANT OF OPTION;
GENERAL TERMS OF SALE....................................................1
1.1 Option Grant; Assets Covered........................................1
(a) FCC Authorizations.............................................2
(b) Tangible Personal Property.....................................2
(c) Real Property..................................................2
(d) Agreements for Sale of Time....................................2
(e) Program Contracts..............................................2
(f) Other Contracts................................................2
(g) Trademarks, etc................................................2
(h) Programming Copyrights.........................................2
(i) FCC Records....................................................3
(j) Files and Records..............................................3
(k) Goodwill.......................................................3
(l) Prepaid Items..................................................3
(m) Cash...........................................................3
(n) Receivables and Other Claims...................................3
1.2 Excluded Assets.....................................................3
(a) Insurance......................................................3
(b) Name...........................................................3
(c) Certain Contracts..............................................3
(d) Corporate Books and Records....................................4
(e) Transaction Documents..........................................4
1.3 Option Exercise.....................................................4
1.4 Liabilities.........................................................4
(a) Permitted Encumbrances.........................................4
(b) Assumption of Liabilities Generally............................4
ARTICLE II
CLOSING..................................................................5
2.1 Exercise Price......................................................5
(a) Payment........................................................5
(b) Definition of Cash Purchase Price..............................5
(c) Determination of Cash Purchase Price...........................5
(d) Allocation of Cash Purchase Price after Sale...................5
2.2 The Closing.........................................................6
2.3 Deliveries at Closing...............................................6
(a) Deliveries by Seller...........................................6
I
(b) Deliveries by Buyer............................................7
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER.................................8
3.1 Incorporation; Power................................................8
3.2 Corporate Action....................................................8
3.3 No Defaults.........................................................8
3.4 Brokers.............................................................8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT.................................8
4.1 Capacity............................................................9
4.2 Action..............................................................9
4.3 No Defaults.........................................................9
4.4 Brokers.............................................................9
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER..................................9
5.1 Incorporation.......................................................9
5.2 Action..............................................................9
5.3 No Defaults........................................................10
5.4 Brokers............................................................10
ARTICLE VI
COVENANTS OF SELLER AND PARENT..........................................10
6.1 Covenants of Seller and Parent Generally...........................10
(a) FCC Authorizations and Other Matters..........................10
(b) Restrictions..................................................10
(c) Reports; Access to Facilities, Files, and Records.............11
(d) Notice of Proceedings.........................................12
(e) Notice of Certain Developments................................12
(f) Issuance or other Transfer of Stock or Equivalents............12
(g) No Premature Assumption of Control............................12
6.2 Covenants of Seller and Parent during the Exercise Period..........12
(a) Application for Commission Consent............................12
(b) Consents......................................................13
(c) Consummation of Sale..........................................13
(d) Xxxx-Xxxxx-Xxxxxx.............................................13
II
ARTICLE VII
COVENANTS OF BUYER......................................................13
7.1 Covenants of Buyer Generally.......................................13
7.2 Covenants of Buyer during Exercise Period..........................14
ARTICLE VIII
CONDITIONS TO SELLER'S OBLIGATIONS ON THE CLOSING DATE..................14
8.1 Representations, Warranties, Covenants.............................14
8.2 Proceedings........................................................14
8.3 FCC Authorization..................................................15
8.4 Xxxx-Xxxxx-Xxxxxx..................................................15
8.5 Other Instruments..................................................15
ARTICLE IX
REMEDIES................................................................15
9.1 Bulk Sales Indemnity...............................................15
9.2 Acknowledgment by Buyer............................................15
ARTICLE X
TERMINATION/MISCELLANEOUS...............................................16
10.1 Termination of Agreement Prior to the Closing Date...............16
(a) By Parent ..................................................16
(b) By Buyer ...................................................16
10.2 Remedies.........................................................17
10.3 Expenses.........................................................17
10.4 Assignments; Exercise in Part....................................17
10.5 Further Assurances...............................................17
10.6 Notices..........................................................18
10.7 Captions.........................................................19
10.8 Law Governing....................................................19
10.9 Waiver of Provisions.............................................19
10.10 Counterparts.....................................................19
10.11 Entire Agreement/Amendments......................................19
10.12 Access to Books and Records......................................19
10.13 Public Announcements.............................................20
10.14 Definitional Provisions..........................................20
(a) Terms Defined in Appendix...................................20
III
(b) Gender and Number...........................................21
10.15 Arbitration......................................................21
(a) Generally...................................................21
(b) Notice of Arbitration.......................................21
(c) Selection of Arbitrator.....................................21
(d) Conduct of Arbitration......................................21
(e) Enforcement.................................................22
(f) Expenses....................................................22
IV
OPTION AGREEMENT
THIS OPTION AGREEMENT is dated as of April __, 2002, and is entered
into among Mission Broadcasting of Joplin Inc., a Delaware corporation
("Seller"), Xxxxx Xxxxx ("Parent"), and Nexstar Broadcasting of Joplin L.L.C., a
Delaware limited liability company ("Buyer"). Other capitalized terms are
defined in the Appendix to this Agreement.
RECITALS
WHEREAS, Seller has entered into a Time Brokerage Agreement and a
Purchase and Sale Agreement pursuant to which it currently provides programming
to, and will eventually purchase, broadcast television station KODE-TV, Joplin,
Missouri (the "Station");
WHEREAS, Parent is the sole stockholder of Seller; and
WHEREAS, Seller has agreed to grant to Buyer an option to acquire the
Station Assets described in more detail below, all on the terms described below
and consistent with the rules and regulations of the FCC;
NOW, THEREFORE, in consideration of the foregoing and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
GRANT OF OPTION;
GENERAL TERMS OF SALE
1.1 Option Grant; Assets Covered. Seller hereby grants to Buyer, and
Buyer hereby accepts Seller's grant of, an option (the "Option") to acquire the
Station Assets, upon the terms and conditions set forth in this Agreement. Upon
and subject to the terms and conditions stated in this Agreement, on the Closing
Date, Seller, as its interests may appear, shall convey, transfer, and deliver
to Buyer, and Buyer shall acquire from Seller, all of Seller's rights in, to and
under the assets and properties of Seller, real and personal, tangible and
intangible, of every kind and description which are used or useful in connection
with the business and operations of the Station, as a going concern, including,
without limitation, rights under contracts and leases, real and personal
property, plant and equipment, inventories, intangibles, licenses and goodwill,
but excluding all such assets and properties which constitute Excluded Assets.
The rights, assets, property, and business of Seller with respect to the Station
to be transferred to Buyer pursuant to this Section 1.1 in connection with the
exercise of the Option are referred to as the "Station Assets," and the purchase
and sale of the Station Assets pursuant to this Agreement in connection with the
exercise of the Option is referred to as the "Sale." Subject to Section 1.2, the
Station Assets include, without limitation, Seller's rights in, to and
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under the following, in each case if and to the extent in existence and held by
Seller immediately prior to the Closing:
(a) FCC Authorizations. All licenses, construction permits and
authorizations issued by the FCC to Seller with respect to the Station (the
"FCC Authorizations"), and all applications therefor, together with any
renewals, extensions, or modifications thereof and additions thereto.
(b) Tangible Personal Property. All equipment, vehicles,
furniture, fixtures, transmitting towers, antennas, transmitters, satellite
earth stations, office materials and supplies, spare parts and other
tangible personal property of every kind and description used in connection
with the business and operations of the Station.
(c) Real Property. All real property interests held by Seller and
all buildings, structures, towers, and improvements thereon used in the
business and operations of the Station, and all other rights under any
Contracts relating to real property (the "Realty Contracts"); provided
that, in the event of destruction of or damage to any such real property
interest, any improvement thereon or any property described in Section
1.1(b) which is not repaired or restored prior to the Closing Date, then at
the Closing Seller shall assign to Buyer all of Seller's interest, if any,
in the proceeds (the "Proceeds") of any insurance covering such damage or
destruction.
(d) Agreements for Sale of Time. All orders, agreements and other
Contracts for the sale of advertising time (including Trades) on the
Station (collectively, the "Time Sales Contracts"), to the extent
unperformed as of the Closing Date.
(e) Program Contracts. All program licenses and other Contracts
under which Seller is authorized to broadcast film product or programs on
the Station (collectively, the "Program Contracts").
(f) Other Contracts. All affiliation agreements and other
Contracts relating to the Station to which Seller is a party with respect
to the Station (other than any Contract described in Section 1.1(c), 1.1(d)
or 1.1(e) hereof) (collectively, the "Other Assumed Contracts").
(g) Trademarks, etc. All trademarks, service marks, trade names,
jingles, slogans, logotypes, the goodwill associated with the foregoing,
and patents, owned and used by Seller in connection with the business and
operations of the Station, including, without limitation, all Seller's
rights to use the call letters "KODE" and any related or other call
letters, names and phrases used in connection with the Station.
(h) Programming Copyrights. All program and programming materials
and elements of whatever form or nature owned by Seller and used solely in
connection with the business and operations of the Station, whether
recorded on tape or any
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other substance or intended for live performance, and whether completed or
in production, and all related common law and statutory copyrights owned by
or licensed to Seller and used in connection with the business and
operations of the Station.
(i) FCC Records. Subject to Section 10.12, all FCC logs and other
compliance records of Seller that relate to the operations of the Station.
(j) Files and Records. Subject to Section 10.12, all files and
other records of Seller relating to the business and operations of the
Station prior to the Closing Date, including, without limitation, all
books, records, accounts, checks, payment records, tax records (including,
without limitation, payroll, unemployment, real estate, and other tax
records), and other such similar books and records of Seller, for five (5)
fiscal years immediately preceding the Closing Date (collectively, the
"Seller's Recent Station Records").
(k) Goodwill. All of Seller's goodwill in, and going concern
value of, the Station.
(l) Prepaid Items. All prepaid expenses relating to the Station.
(m) Cash. All cash, cash equivalents, and cash items of any kind
whatsoever, certificates of deposit, money market instruments, bank
balances, and rights in and to bank accounts, marketable and other
securities held by Seller.
(n) Receivables and Other Claims. All notes and accounts
receivable and other receivables of Seller relating to or arising out of
the operation of the Station prior to the Closing, all security, insurance,
and similar deposits, and all other claims of Seller with respect to
transactions or other conduct of the business of the Station prior to the
Closing, including, without limitation, claims for tax refunds and claims
of Seller under all Contracts with respect to events for the period prior
to the Closing.
1.2 Excluded Assets. There shall be excluded from the Station Assets
and, to the extent in existence on the Closing Date, retained by Seller, the
following assets (the "Excluded Assets"):
(a) Insurance. Subject to Section 1.1(c), all contracts of
insurance and all insurance plans and the assets thereof, together with all
rights and claims thereunder.
(b) Name. All of Seller's rights to use the name "Mission
Broadcasting," any variation thereof, or any related logo, name or phrase.
(c) Certain Contracts. All Realty Contracts, Time Sales
Contracts, Program Contracts and Other Assumed Contracts which expire and
are not renewed, or which otherwise terminate, on or prior to the Closing
Date.
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(d) Corporate Books and Records. Subject to Section 10.12, all
account books of original entry other than duplicate copies of such files
and records, if any, that are maintained at any executive office of Seller
or the offices of Seller's direct or indirect equity owners, and all
materials of Seller which constitute attorney work product or contain
information which is protected by attorney-client privilege, wherever
located, relating to matters at or prior to the Closing; provided that
Seller will provide Buyer access to such work product or privileged
information to the extent necessary for Buyer to defend any claim brought
against Buyer by a Person which is not, or is not an Affiliate of, a party
to this Agreement.
(e) Transaction Documents. All rights of Seller, or any successor
to Seller, pursuant to any Transaction Document.
1.3 Option Exercise. Each exercise of the Option will be permitted
solely in accordance in all respects with the Communications Act and all
applicable rules, regulations and policies of the FCC. In order to exercise the
Option, Buyer must deliver to Seller (prior to the Option Expiration Date)
written notice (an "Exercise Notice") of Buyer's intention to do so. Buyer may
withdraw any Exercise Notice prior to the Closing by written notice to that
effect to Seller. No such withdrawal (and no withdrawal of any subsequent
Exercise Notice) will affect Buyer's right subsequently to exercise the Option
by delivering to Seller (prior to the Option Expiration Date) one or more other
Exercise Notices, subject in all events to compliance with the Communications
Act and all applicable rules, regulations and policies of the FCC. Upon the
withdrawal of any Exercise Notice, Buyer shall reimburse Seller for all
reasonable out-of-pocket expenses (including reasonable attorneys' fees)
incurred by Seller in connection with its compliance with Section 6.2 with
respect to such Exercise Notice.
1.4 Liabilities.
(a) Permitted Encumbrances. At the Closing, after the
application of the Cash Purchase Price as may be required to repay the
Existing Station Indebtedness, the Station Assets shall be sold and
conveyed to Buyer free and clear of all Liens (including all Liens which
secure the repayment of Existing Station Indebtedness), other than (i)
Liens for current taxes in respect of the Station and the Station Assets
and other amounts which are not then due and payable and which arise by
operation of law, (ii) Liens on the Station Assets which are in existence
on the date of this Agreement and which do not secure indebtedness or
borrowed money, (iii) Liens on the Station's assets arising by operation of
law or in the ordinary course of Seller's business after the date of this
Agreement and not securing indebtedness for borrowed money, and (iv) Liens
on the Station Assets which, in the aggregate, would not be expected to
have a material effect on the Station Assets after the Sale.
(b) Assumption of Liabilities Generally. The "Assumed
Liabilities" will be all liabilities and obligations of Seller or Parent
relating to the operation of the Station or the ownership or operation of
the Station Assets, in each case as of the Closing Date, whether contingent
or absolute, known or unknown, accrued or not accrued, or matured or
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unmatured, including all liabilities and obligations pursuant to any Realty
Contract, Time Sales Contract, Program Contract or Other Assumed Contract
(collectively, the "Assumed Contracts") in effect on the Closing Date. On
the Closing Date, Buyer will assume and agree to pay, satisfy, perform and
discharge all Assumed Liabilities. From and after the Closing, Buyer will
discharge and reimburse and hold harmless Seller against, and Seller will
not be responsible or otherwise liable for, any Assumed Liability. Without
limiting the foregoing, except as otherwise provided in this Agreement, the
"Assumed Liabilities" will not include, and on the Closing Date Buyer shall
not assume or thereafter be liable for, any liability or obligation of
Seller relating to any Existing Station Indebtedness (it being understood
that all Existing Station Indebtedness will be satisfied prior to, or
contemporaneously with, the consummation of the Sale). The revenues,
expenses and liabilities of Seller or attributable to the Station and the
Station Assets will not be prorated between Buyer and Seller in connection
with the Sale.
ARTICLE II
CLOSING
2.1 Exercise Price.
(a) Payment. In consideration of the transfer and delivery of the
Station Assets to Buyer at the Closing, (i) Buyer will pay to Seller an
amount which is equal to the Cash Purchase Price, and (ii) Buyer will
assume the Assumed Liabilities. The Cash Purchase Price shall be paid by
Buyer to Seller on the Closing Date by wire transfer of immediately
available funds to such bank account(s) as Seller may designate on or prior
to the Closing Date.
(b) Definition of Cash Purchase Price. The "Cash Purchase Price"
shall be as described on the attached Schedule 2.1.
(c) Determination of Cash Purchase Price. Each of Buyer and
Parent will use reasonable efforts to assist in the determination of the
Existing Station Indebtedness. Notwithstanding Section 10.1(a) of this
Agreement, Parent may not terminate this Agreement at any time at which an
Exercise Notice has been given (and not withdrawn) and the related Existing
Station Indebtedness has not been determined, or during the twenty business
days after any such determination.
(d) Allocation of Cash Purchase Price after Sale. Buyer and
Seller will allocate the Cash Purchase Price among the Station Assets in
accordance with a report of such allocation prepared in good faith by Buyer
based upon the valuation report of an independent appraiser retained by
Buyer and in accordance with all applicable provisions of the Internal
Revenue Code of 1986, as in effect from time to time. Buyer will submit
such reports of Buyer and such independent appraiser to Seller prior to the
Closing of the Sale. Buyer and
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Seller agree to file (at such times and in such manner as may be required
by applicable Legal Requirements) all relevant returns and reports
(including, without limitation, Forms 8594, Asset Acquisition Statements,
and all income and other tax returns) on the basis of such allocations.
2.2 The Closing. Subject to Section 10.1, the closing of the Sale, and
the assumption of the Assumed Liabilities (the "Assumption"), and the
consummation of all related transactions to be consummated contemporaneously
therewith pursuant to this Agreement (the "Closing"), shall be held after the
satisfaction or Seller's waiver in writing of each of the conditions set forth
in Article VIII and at the time and location and on the date specified by Buyer
in writing to Seller delivered not less than fifteen business days prior to such
date, or at such other place and/or at such other time and day as Seller and
Buyer may agree in writing.
2.3 Deliveries at Closing. All actions at the Closing shall be deemed
to occur simultaneously, and no document or payment to be delivered or made at
the Closing shall be deemed to be delivered or made until all such documents and
payments are delivered or made to the reasonable satisfaction of Buyer, Seller
and their respective counsel.
(a) Deliveries by Seller. At the Closing, Seller shall deliver to
Buyer such instruments of conveyance and other customary documentation as
shall in form and substance be reasonably satisfactory to Buyer and its
counsel in order to effect the Sale, including, without limitation, the
following:
(1) one or more bills of sale or other instruments (including
assignments of FCC Authorizations, call letters, service marks,
leases and other contracts) conveying the Station Assets;
(2) any releases of Liens that are necessary in order to transfer the
Station Assets in the manner contemplated by Section 1.4(a);
(3) a certified copy of the resolutions or proceedings of Seller's
board of directors and stockholders (or similar Persons)
authorizing Seller's consummation of the Sale;
(4) a certificate as to the existence and/or good standing of Seller
issued by the Secretary of State of each state under the laws of
which Seller is incorporated, organized, formed or authorized to
do business, in each case dated on or after the fifth Business
Day prior to the Closing Date, certifying as to the good standing
and/or qualification of Seller in such jurisdiction;
(5) a receipt for the Cash Purchase Price;
(6) all Consents received by Seller through the Closing Date;
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(7) a certificate of Seller to the effect that, except as set forth
in such certificate, each of the representations and warranties
of Seller contained in this Agreement is true and accurate in all
material respects (except to the extent changes are permitted or
contemplated pursuant to this Agreement) as if made on and as of
the Closing Date; and
(8) such other documents as Buyer may reasonably request.
(b) Deliveries by Buyer. At the Closing, Buyer shall deliver to Seller
the Cash Purchase Price as provided in Section 2.1 and such instruments of
assumption and other customary documentation as shall in form and substance
be reasonably satisfactory to Seller and its counsel in order to effect the
Sale and the Assumption, including, without limitation, the following:
(1) a certificate of Buyer dated the Closing Date to the effect that
the conditions set forth in Article VIII have been fulfilled;
(2) if Buyer is not a natural person, then a certified copy of the
resolutions or proceedings of Buyer authorizing the consummation
of the Sale and the Assumption;
(3) if Buyer is not a natural person, then a certificate issued by
the Secretary of State of the state under the laws of which Buyer
is incorporated, organized or formed (and in any event, if
qualification of Buyer to conduct business in the State of Texas
is required in order for Buyer to hold the Station Assets after
the Sale, then of the Secretary of the State of Texas), in each
case dated on or after the fifth Business Day prior to the
Closing Date, certifying as to the organization and/or
qualification of Buyer in each such jurisdiction; and
(4) such other documents as Seller may reasonably request.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
Seller represents and warrants to Buyer as follows:
3.1 Incorporation; Power. Seller is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware
and in good standing under the laws of the State of Missouri. Seller has the
corporate power to enter into and consummate the transactions contemplated by
this Agreement. Parent is the beneficial and record owner of all of the
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issued and outstanding capital stock of Seller, and there are not outstanding
any Equity Securities of Seller (other than its capital stock of which Parent is
the beneficial and record owner).
3.2 Corporate Action. All actions necessary to be taken by or on the
part of Seller in connection with the execution and delivery of this Agreement
and the consummation of transactions contemplated hereby to be consummated and
presently necessary to make the same effective have been duly and validly taken.
This Agreement has been duly and validly authorized, executed, and delivered by
Seller and constitutes a valid and binding agreement, enforceable against Seller
in accordance with and subject to its terms.
3.3 No Defaults. On the Closing Date (after giving effect to all
Consents which have been obtained), neither the execution and delivery by Seller
of this Agreement, nor the consummation by Seller of the transactions
contemplated by this Agreement to be consummated on or prior to the Closing
Date, will constitute, or, with the giving of notice or the passage of time or
both, would constitute, a material violation of or would conflict in any
material respect with or result in any material breach of or any material
default under, any of the terms, conditions, or provisions of any Legal
Requirement to which Seller is subject, or of Seller's certificate of
incorporation or by-laws or similar organizational documents, or of any material
contract, agreement, or instrument to which Seller is a party or by which Seller
is bound.
3.4 Brokers. There is no broker or finder or other Person who would
have any valid claim against Seller for a commission or brokerage fee in
connection with this Agreement or the transactions contemplated hereby as a
result of any agreement or understanding of or action taken by Seller or any
Affiliate of Seller.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
----------------------------------------
Parent represents and warrants to Buyer as follows:
4.1 Capacity. Parent has the legal capacity to enter into and
consummate the transactions contemplated by this Agreement.
4.2 Action. All actions necessary to be taken by or on the part of
Parent in connection with the execution and delivery of this Agreement and the
consummation of transactions contemplated hereby to be consummated and presently
necessary to make the same effective have been duly and validly taken. This
Agreement has been duly executed and delivered by Parent, and constitutes a
valid and binding agreement that is enforceable against Parent in accordance
with and subject to its terms.
4.3 No Defaults. On the Closing Date (after giving effect to all
Consents which have been obtained), neither the execution and delivery by Parent
of this Agreement, nor the
8
consummation by Parent of the transactions contemplated by this Agreement to be
consummated on or prior to the Closing Date, will constitute, or, with the
giving of notice or the passage of time or both, would constitute, a material
violation of or would conflict in any material respect with or result in any
material breach of or any material default under, any of the terms, conditions,
or provisions of any Legal Requirement to which Parent is subject, or of any
material contract, agreement, or instrument to which Parent is a party or by
which Parent is bound.
4.4 Brokers. There is no broker or finder or other Person who would
have any valid claim against Seller or Parent for a commission or brokerage fee
in connection with this Agreement or the transactions contemplated hereby as a
result of any agreement or understanding of or action taken by Seller or Parent
or any Affiliate of Seller or Parent.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller and Parent as follows:
5.1 Incorporation. If Buyer is not a natural person, then Buyer is a
corporation, partnership, limited liability company or other entity duly
organized or constituted, validly existing, and in good standing under the laws
of the state under whose laws Buyer is purported to have been organized or
constituted, and Buyer has the corporate or other power (or, if Buyer is a
natural person, then Buyer has the legal capacity) to enter into and consummate
the transactions contemplated by this Agreement.
5.2 Action. All actions necessary to be taken by or on the part of
Buyer in connection with the execution and delivery of this Agreement and the
consummation of transactions contemplated hereby to be consummated and presently
necessary to make the same effective have been duly and validly taken. This
Agreement has been duly and validly authorized (if Buyer is not a natural
person), executed and delivered by Buyer and constitutes a valid and binding
agreement, enforceable against Buyer in accordance with and subject to its
terms.
5.3 No Defaults. On the Closing Date (after giving effect to all
approvals and consents which have been obtained), neither the execution and
delivery by Buyer of this Agreement, nor the consummation by Buyer of the
transactions contemplated by this Agreement to be consummated on or prior to the
Closing Date, will constitute, or, with the giving of notice or the passage of
time or both, would constitute, a material violation of or would conflict in any
material respect with or result in any material breach of or any material
default under, any of the terms, conditions, or provisions of any Legal
Requirement to which Buyer is subject, or of Buyer's certificate of
incorporation or by-laws or similar organizational documents, if any, or of any
material contract, agreement, or instrument to which Buyer is a party or by
which Buyer is bound.
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5.4 Brokers. There is no broker or finder or other Person who would
have any valid claim against Seller for a commission or brokerage fee in
connection with this Agreement or the transactions contemplated hereby as a
result of any agreement or understanding of or action taken by Buyer or any
Affiliate of Buyer.
ARTICLE VI
COVENANTS OF SELLER AND PARENT
6.1 Covenants of Seller and Parent Generally. Seller and Parent
covenant and agree, from the date of this Agreement until the Closing, except as
Buyer may otherwise consent, to act or refrain from acting as follows:
(a) FCC Authorizations and Other Matters. Seller will promptly execute
any necessary applications for renewal of FCC Authorizations necessary for the
operation of the Station as presently conducted and will use reasonable efforts
to cooperate with Buyer in any other respect in which Buyer may reasonably
request in order to enhance, protect, preserve or maintain the Station Assets
and/or the business and operation of the Station.
(b) Restrictions. Seller will not (to the extent the following
restrictions are permitted by the FCC and all other applicable Legal
Requirements), and Parent will not cause or permit Seller to:
(1) other than in the ordinary course of business, sell, lease (as
lessor), transfer, or agree to sell, lease (as lessor), or
transfer any material Station Assets (other than in the ordinary
course of its business) without replacement thereof with
functionally equivalent or superior assets;
(2) enter into any amendment or other modification of any agreement,
instrument or other document governing or relating to Existing
Station Indebtedness;
(3) apply to the FCC for any construction permit that would
materially restrict the Station's present operations or make any
material adverse change in the buildings or leasehold
improvements owned by Seller;
(4) (i) authorize, declare or pay any dividend or return any equity
capital to its stockholders, (ii) redeem, retire, purchase or
otherwise acquire, directly or indirectly, for consideration any
of Seller's shares of any class of Seller's capital stock or
other Equity Securities outstanding, or (iii) make any other form
of cash distribution;
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(5) enter into any arrangement or contract with Parent, Parent's
affiliates or any of Parent's parents, spouse, descendants
(whether natural, step or adopted) or other family member of
Parent; or
(6) incur, or suffer or permit to exist, any Lien on any Station
Asset(s) such that, after any application of the Cash Purchase
Price that may be necessary at the time of the Closing to repay
Existing Station Indebtedness, the Station Assets could not be
conveyed as described in Section 1.4(a).
(c) Reports; Access to Facilities, Files, and Records. From time to
time, at the request of Buyer, Seller and Parent shall give or cause to be
given to the officers, employees, accountants, counsel, and representatives
of Buyer:
(1) access, upon reasonable prior notice, during normal business
hours, to all facilities, property, accounts, books, deeds, title
papers, insurance policies, licenses, agreements, contracts,
commitments, records, equipment, machinery, fixtures, furniture,
vehicles, accounts payable and receivable, and inventories of Seller
related to the Station, and
(2) all such other information in Seller's or Parent's possession
concerning the affairs of the Station as Buyer may reasonably request,
provided that the foregoing does not disrupt or interfere with the business
and operations of Seller or Parent or the Station.
(d) Notice of Proceedings. Each of Seller and Parent will promptly
notify Buyer in writing upon becoming aware of any order or decree or any
complaint praying for an order or decree restraining or enjoining the
consummation of the Sale, or upon receiving any notice from any
governmental department, court, agency, or commission of its intention to
institute an investigation into or institute a suit or proceeding to
restrain or enjoin the consummation of the Sale, or to nullify or render
ineffective this Agreement (or the Sale, if consummated).
(e) Notice of Certain Developments. Each of Seller and Parent shall
give prompt written notice to Buyer, promptly after it or becomes aware of
the same, (1) if the Station Assets shall have suffered damage on account
of fire, explosion, or other cause of any nature which is sufficient to
prevent operation of the Station in any material respect for more than ten
(10) consecutive days, or (2) if the regular broadcast transmission of the
Station in the normal and usual manner in which it heretofore has been
operating is interrupted in a material manner for a period of more than ten
(10) consecutive days.
(f) Issuance or other Transfer of Stock or Equivalents. Seller will
not issue any shares of its capital stock or any Equity Security of Seller,
and Parent will not sell or otherwise transfer or dispose of any Equity
Security of Seller, to any Person, unless (i) such
11
Person is a party to this Agreement or thereupon becomes a party to this
Agreement with respect to all Equity Securities of Seller that such Person
holds by executing and delivering to Buyer a counterpart of this Agreement
by which such Person agrees to be treated as an additional "Parent"
hereunder and (ii) each applicable representation or warranty set forth in
Article IV is true and correct in all respects with respect to such Person.
The execution of any such counterpart of this Agreement by any such Person
will be deemed to constitute a representation and warranty of such Person
to the effect that all applicable representations and warranties set forth
in Article IV are true and correct with respect to such Person in all
respects; provided that this Section 6.1(f) shall not apply to any transfer
or disposal of Equity Securities of Seller pursuant to any pledge agreement
entered into by Seller or Parent to secure any Existing Station
Indebtedness (a "Pledge Agreement").
(g) No Premature Assumption of Control. Nothing contained in this
Section 6.1 shall give Buyer any right to control the programming,
operations, or any other matter relating to the Station prior to the
Closing Date, and Seller shall have complete control of the programming,
operations, and all other matters relating to the Station up to the time of
the Closing.
6.2 Covenants of Seller and Parent during the Exercise Period. Each of
Seller and Parent covenants and agrees that, after its receipt of each and every
Exercise Notice and until either the Closing occurs or such Exercise Notice is
withdrawn pursuant to Section 1.3:
(a) Application for Commission Consent. As promptly as practicable,
Seller will complete the seller's or transferor's portion of all necessary
applications to the FCC requesting the Required FCC Consents (if any), and
upon receipt of Buyer's portion of such applications, will promptly file
such applications with the FCC jointly with Buyer. Seller will diligently
take or cooperate in the taking of all reasonable steps that are necessary,
proper, or desirable to expedite the preparation of such applications
(including withdrawal and/or re-filing, or any amendment or supplement
thereto, which Buyer may request) and their prosecution to a final grant.
Each of Seller and Parent will promptly provide Buyer with a copy of any
pleading, order, or other document served on Seller and Parent relating to
such applications.
(b) Consents. Seller will use reasonable efforts (without being
required to make any payment not specifically required by the terms of any
licenses, leases, and other contracts) to assist Buyer to (1) obtain or
cause to be obtained prior to the Closing Date all Consents or, in the
absence of any Consent, one or more replacement agreements which would be
effective on or prior to the Closing and would grant Buyer (after the
Closing) substantially the same benefits with respect to the Station as
Seller enjoys with respect to the Station immediately prior to the Closing
under the replaced Contract(s), and (2) cause each Consent or replacement
agreement to become effective as of the Closing Date (whether it is granted
or entered into prior to or after the Closing).
12
(c) Consummation of Sale. Subject to the provisions of Article VIII
and Section 10.1, each of Seller and Parent shall use reasonable efforts to
fulfill and perform all conditions and obligations on its part to be
fulfilled and performed under this Agreement and to cause the conditions
set forth in Article VIII to be fulfilled and cause the Sale and the
Assumption to be consummated.
(d) Xxxx-Xxxxx-Xxxxxx. As and when Buyer reasonably requests, each of
Seller and Parent shall prepare and file such documents with the Federal
Trade Commission and the United States Department of Justice as may be
required to comply with the Xxxx-Xxxxx-Xxxxxx Act in connection with the
Sale and the Assumption, and shall promptly furnish all materials
thereafter requested by any of the regulatory agencies having jurisdiction
over such filings, in connection with the Sale and the Assumption. Each of
Seller and Parent will take all reasonable actions, and will file and use
reasonable efforts to have declared effective or approved all such
documents and notifications (when filed) with any governmental or
regulatory bodies, as may be necessary or may reasonably be requested under
federal antitrust laws for the consummation of the Sale and the Assumption.
ARTICLE VII
COVENANTS OF BUYER
7.1 Covenants of Buyer Generally. Buyer covenants and agrees that
Buyer will promptly notify Seller in writing upon becoming aware of any order or
decree or any complaint praying for an order or decree restraining or enjoining
the consummation of the Sale or the Assumption, or upon receiving any notice
from any governmental department, court, agency, or commission of its intention
to institute an investigation into or institute a suit or proceeding to restrain
or enjoin the consummation of the Sale or the Assumption, or to nullify or
render ineffective this Agreement or the Sale or the Assumption if consummated.
7.2 Covenants of Buyer during Exercise Period. Buyer covenants and
agrees that, after it gives any Exercise Notice and unless and until such
Exercise Notice is withdrawn pursuant to Section 1.3, Buyer will use reasonable
efforts (both prior to and after the Closing Date) jointly with Seller to obtain
or cause to be obtained prior to the Closing Date all Consents and to execute
such assumption instruments as may be required or requested in connection with
obtaining any Consent (or, in the alternative, enter into one or more
replacement agreements which would be effective on or prior to the Closing and
would grant Buyer substantially the same benefits with respect to the Station as
Seller enjoys with respect to the Station under the replaced Contract(s)
immediately prior to the Closing).
13
ARTICLE VIII
CONDITIONS TO SELLER'S OBLIGATIONS
ON THE CLOSING DATE
The obligation of Seller to consummate the Sale on the Closing Date is, at
Seller's option, subject to the fulfillment of the following conditions at or
prior to the time of the Closing:
8.1 Representations, Warranties, Covenants.
(a) Each of the representations and warranties of Buyer contained in
this Agreement shall be true and accurate in all material respects (except
to the extent changes are permitted or contemplated pursuant to this
Agreement) as if made on and as of the Closing Date; and
(b) Buyer shall have performed and complied in all material respects
with each and every covenant and agreement required by this Agreement to be
performed or complied with by it prior to or at the Closing (including the
delivery of the Cash Purchase Price).
8.2 Proceedings.
(a) No action or proceeding shall have been instituted and be pending
before any court or governmental body to restrain or prohibit, or to obtain
a material amount of damages in respect of, the consummation of the Sale or
the Assumption that, in the reasonable opinion of Seller, may reasonably be
expected to result in a preliminary or permanent injunction against such
consummation or, if the Sale or the Assumption were consummated, an order
to nullify or render ineffective this Agreement or the Sale or the
Assumption or for the recovery against Seller of a material amount of
damages; and
(b) none of the parties to this Agreement shall have received written
notice from any governmental body of (i) such governmental body's intention
to institute any action or proceeding to restrain or enjoin or nullify this
Agreement or the Sale or the Assumption, or to commence any investigation
(other than a routine letter of inquiry, including, without limitation, a
routine Civil Investigative Demand) into the consummation of the Sale or
the Assumption, or (ii) the actual commencement of such an investigation,
in each case which remains pending or open.
8.3 FCC Authorization. The FCC Approval Date shall have occurred with
respect to all Required FCC Consents and all Required FCC Consents shall be in
full force and effect.
8.4 Xxxx-Xxxxx-Xxxxxx. Any applicable waiting period under the
Xxxx-Xxxxx-Xxxxxx Act shall have expired or been terminated.
14
8.5 Other Instruments. Buyer shall have delivered, or shall stand
ready to deliver, to Seller such instruments, documents, and certificates as are
contemplated by Section 2.3(b).
ARTICLE IX
REMEDIES
9.1 Bulk Sales Indemnity. Buyer and Seller have jointly determined
that there will be no attempt to comply with the notice provisions of any bulk
sales law which may apply to the purchase and sale of the Station Assets
pursuant to this Agreement. Buyer will indemnify and hold Seller harmless from
and against any and all damages, claims, losses, expenses, costs, obligations,
and liabilities, including, without limiting the generality of the foregoing,
liabilities for reasonable attorneys' fees and expenses, suffered directly or
indirectly by Seller by reason of or arising out of non-compliance with any such
bulk sales law.
9.2 Acknowledgment by Buyer. Buyer has conducted, to its satisfaction,
an independent investigation and verification of the financial condition,
results of operations, assets, liabilities, properties and projected operations
of the Station and the Station Assets. In determining to proceed with the
transactions contemplated by this Agreement, Buyer has relied, and will rely, on
the representations, warranties and covenants of Seller and Parent set forth in
this Agreement and the results of such independent investigation and
verification. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY OTHER
PROVISIONS OF THIS AGREEMENT, IT IS THE EXPLICIT INTENT OF EACH PARTY HERETO
THAT THE SELLER AND PARENT ARE NOT MAKING ANY REPRESENTATION OR WARRANTY
EXPRESS, IMPLIED, AT COMMON LAW, STATUTORY OR OTHERWISE IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED HEREBY OTHER THAN AS EXPRESSLY SET FORTH IN THIS
AGREEMENT. SUBJECT TO SUCH REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS
AGREEMENT, BUYER TAKES THE STATION ASSETS "AS IS AND WHERE IS." WITHOUT LIMITING
THE IMMEDIATE TWO SENTENCES, SELLER AND PARENT HEREBY EXPRESSLY DISCLAIM AND
NEGATE (AND BUYER UNDERSTANDS, ACKNOWLEDGES AND AGREES WITH SUCH DISCLAIMERS AND
NEGATION) ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW,
STATUTORY OR OTHERWISE, RELATING TO (1) THE CONDITION OF THE REAL OR TANGIBLE
PERSONAL PROPERTIES (INCLUDING ANY IMPLIED OR EXPRESS WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF CONFORMITY TO MODELS
OR SAMPLES OR MATERIALS); (2) ANY INFRINGEMENT BY SELLER OR ANY OF ITS
AFFILIATES OF ANY PATENT, INTELLECTUAL PROPERTY OR PROPRIETARY RIGHT OF ANY
THIRD PARTY; AND (3) THE ACCURACY, COMPLETENESS OR MATERIALITY OF ANY ESTIMATES,
PROJECTIONS AND EVALUATIONS, INCLUDING, WITHOUT LIMITATION, THE PROJECTED,
FUTURE OR HISTORICAL FINANCIAL CONDITION, RESULTS OR OPERATIONS, ASSETS OR
LIABILITIES RELATING TO THE STATION.
15
ARTICLE X
TERMINATION/MISCELLANEOUS
10.1 Termination of Agreement Prior to the Closing Date. This
Agreement may be terminated at any time on or prior to the Closing as follows:
(a) By Parent. By Parent, by written notice (a "Termination Notice")
to Buyer at any time after the Option Expiration Date, if (I) the Closing
has not occurred on or prior to the date upon which such Termination Notice
is given, and (II) there is no condition to closing set forth in Article
VIII that both (x) has not been either satisfied or waived by Seller and
(y) the absence of satisfaction of which has been caused solely by a breach
by Seller and/or Parent of its or his obligations under this Agreement.
(b) By Buyer. By Buyer, by written notice to Parent, at any time.
Neither Buyer, Seller nor Parent shall have any liability to any of the other of
them for costs, expenses, damages (consequential or otherwise), loss of
anticipated profits, or otherwise as a result of a termination pursuant to this
Section 10.1. This Article X will survive the termination of this Agreement
pursuant to this Section 10.1.
10.2. Remedies. In the event of a breach of any of Seller's or
Parent's obligations under this Agreement, Buyer, in addition to being entitled
to exercise all rights provided herein or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The parties hereto agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach of any such obligations
of Seller or Parent.
10.3. Expenses. Except as otherwise expressly provided in this
Agreement, each of Seller, Parent and Buyer shall bear all of its expenses
incurred in connection with the transactions contemplated by this Agreement,
including, without limitation, accounting and legal fees incurred in connection
herewith; provided that (a) Buyer will reimburse Seller and Parent for all
reasonable out-of-pocket expenses incurred by them in connection with the
preparation, negotiation and implementation of this Agreement and all related
agreements, (b) Buyer will reimburse Seller and Parent for all reasonable
out-of-pocket expenses incurred by them in connection with or in preparation for
the Closing (including those incurred in performing their respective obligations
under Section 6.2), and (c) Buyer will pay all filing fees associated with any
filing contemplated by Section 6.2(a) or Section 6.2(d).
10.4 Assignments; Exercise in Part. This Agreement shall not be
assigned by Seller or Parent without the prior written consent of Buyer;
provided that after the Closing, Seller or Parent may assign its rights pursuant
to this Agreement to any other Person in connection with the dissolution,
liquidation or winding up or administration of its affairs; and further provided
that,
16
whether or not any requisite consent of Buyer has been obtained, this
Agreement will be binding upon all respective successors of Seller and Parent,
whether by operation of law or otherwise (except that this proviso shall not
apply to any transfer or disposal pursuant to a Pledge Agreement). Any attempt
by Seller or Parent to assign this Agreement without first obtaining the consent
of Buyer shall be void. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement may be assigned in whole or in part by Buyer without the
prior written consent of Seller or Parent to any Person (provided that no such
assignment shall relieve the assigning Person of any of its obligations or
liabilities hereunder), and Buyer will inform Seller and Parent of any such
assignment. Any assignee of Buyer will be deemed to be "Buyer" for purposes of
this Agreement as to the rights assigned to such assignee.
10.5 Further Assurances. From time to time prior to, at, and after the
Closing Date, each party hereto will execute all such instruments and take all
such actions as another party hereto, being advised by counsel, shall reasonably
request in connection with carrying out and effectuating the intent and purpose
hereof, and all transactions and things contemplated by this Agreement,
including, without limitation, the execution and delivery of any and all
confirmatory and other instruments, in addition to those to be delivered on the
Closing Date, as the case may be, and any and all actions which may reasonably
be necessary to complete the transactions contemplated hereby.
10.6 Notices. All notices, demands, and other communications which may
or are required to be given hereunder or with respect hereto shall be in
writing, shall be delivered personally or sent by nationally recognized
overnight delivery service, charges prepaid, or by registered or certified mail,
return-receipt requested, and shall be deemed to have been given or made when
personally delivered, the next business day after delivery to such overnight
delivery service, three (3) days after deposited in the mail, first class
postage prepaid, as the case may be, addressed as follows:
(a) If to Seller or Parent:
Mr. Xxxxx Xxxxx
Mission Broadcasting of Joplin, Inc.
000 Xxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
with a copy (which will not constitute
notice to Seller or Parent) to:
Drinker Xxxxxx & Xxxxx, LLP
0000 X Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
17
or to such other address and/or with such other copies as Seller or Parent may
from time to time designate by notice to Buyer given in accordance with this
Section 10.6; and
(b) If to Buyer:
Nexstar Broadcasting Group
000 Xxxxxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Chief Executive Officer
with a copy (which will not constitute
notice to Buyer) to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
or to such other address and/or with such other copies as Buyer may from time to
time designate by notice to Parent given in accordance with this Section 10.6.
10.7 Captions. The captions of Articles and Sections of this Agreement
are for convenience only, and shall not control or affect the meaning or
construction of any of the provisions of this Agreement.
10.8 Law Governing. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED,
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT
REFERENCES TO ITS PRINCIPLES OF CONFLICT OF LAWS, EXCEPT TO THE EXTENT THAT THE
FEDERAL LAW OF THE UNITED STATES GOVERNS THE TRANSACTIONS CONTEMPLATED HEREBY.
10.9 Waiver of Provisions. The terms, covenants, representations,
warranties, and conditions of this Agreement may be waived only by a written
instrument executed by the Person waiving compliance. The failure of Buyer,
Seller or Parent at any time or times to require performance of any provision of
this Agreement shall in no manner affect the right at a later date to enforce
the same. No waiver by Buyer, Seller or Parent of any condition or the breach of
any provision, term, covenant, representation, or warranty contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be or construed as a further or continuing waiver of any such
condition or of the breach of any other provision, term, covenant,
representation, or warranty of this Agreement.
18
10.10 Counterparts. This Agreement may be executed in two (2) or more
counterparts, and all counterparts so executed shall constitute one (1)
agreement binding on all of the parties hereto, notwithstanding that all the
parties hereto are not signatory to the same counterpart.
10.11 Entire Agreement/Amendments. This Agreement (including the
Schedules hereto) constitutes the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersedes any and all prior and
contemporaneous agreements, understandings, negotiations, and discussions,
whether oral or written, between them relating to the subject matter hereof. No
amendment or waiver of any provision of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. The parties intend that
this Agreement be in full compliance with all published rules, policies and
orders of the FCC. If the FCC orders that the parties change any term of this
Agreement, then the parties will attempt to do so, consistent with said FCC
order and the overall intent of this Agreement.
10.12 Access to Books and Records.
(a) Buyer shall preserve for not less than seven (7) years after the
Closing Date all books and records included in the Station Assets. After
such five-year period, Buyer will not destroy any books or records relating
to the conduct of business of the Station prior to the Closing unless Buyer
first offers to transfer such books and records to Parent, and if Buyer is
requested to do so, Buyer will transfer such books or records to Parent.
(b) After the Closing, neither Seller nor Parent will destroy any
books or records relating to the conduct of business of the Station prior
to the Closing Date unless Parent first offers to transfer such books and
records to Buyer, and if Parent is requested to do so, Parent transfer such
books or records to Buyer.
(c) At the request of any other party to this Agreement, Buyer, Seller
and Parent will permit each other (including such other party's officers,
employees, accountants, and counsel) any access, upon reasonable prior
written notice during normal business hours, to all of its property,
accounts, books, contracts, records, accounts payable and receivable,
records of employees, FCC logs and other information concerning the affairs
or operation of the Station as such other party to this Agreement may
reasonably request for any reasonable purpose, and to make extracts or
copies from the foregoing at the requesting party's expense.
10.13 Public Announcements. Prior to the Closing, no party to this
Agreement shall, except by mutual agreement with all other parties to this
Agreement (including agreement as to content, text and method or distribution or
release), make any press release or other public announcement or disclosure
concerning the transactions contemplated by this Agreement, except as may be
required by any Legal Requirement (including, without limitation, filings and
reports required to be made with or pursuant to the rules of the Securities and
Exchange Commission); provided that, prior to making any such announcement or
disclosure required by any Legal Requirement, to the extent practicable, the
disclosing Person gives each other party to this Agreement prior written notice
of the context, text and content of, the method of distribution or release of,
19
and all other material facts concerning, such disclosure. After the Closing,
neither Seller nor Parent will, except with Buyer's prior written consent
(including agreement as to content, text and method or distribution or release),
make any press release or other public announcement or disclosure concerning the
transactions contemplated by this Agreement, except as may be required by any
Legal Requirement (including, without limitation, filings and reports required
to be made with or pursuant to the rules of the Securities and Exchange
Commission); provided that, prior to making any such announcement or disclosure
required by any Legal Requirement, to the extent practicable, Seller or Parent
(as the case may be) gives Buyer prior written notice of the context, text and
content of, the method of distribution or release of, and all other material
facts concerning, such disclosure.
10.14 Definitional Provisions.
(a) Terms Defined in Appendix. Each capitalized term which is used and
not otherwise defined in this Agreement or any Schedule to this Agreement
has the meaning which is specified for such term in the Appendix which is
attached to this Agreement.
(b) Gender and Number. Words used in this Agreement, regardless of the
gender and number specifically used, will be deemed and construed to
include any other gender, masculine, feminine or neuter, and any other
number, singular or plural, as the context requires.
10.15 Arbitration.
(a) Generally. Buyer, Seller and Parent agree that the arbitration
procedures described in this Section 10.15 will be the sole and exclusive
method of resolving and remedying any claim for indemnification or other
remedy arising under this Agreement (collectively, "Disputes"); provided
that nothing in this Section 10.15 will prohibit a party from instituting
litigation to enforce any Final Arbitration Award. Buyer, Seller and Parent
agree that, except as otherwise provided in the Commercial Arbitration
Rules of the American Arbitration Association as in effect from time to
time (the "AAA Rules"), the arbitration procedures described in this
Section 10.15 and any Final Arbitration Award will be governed by, and will
be enforceable pursuant to, the Uniform Arbitration Act as in effect in the
Commonwealth of Pennsylvania from time to time. No Person will be entitled
to claim or recover punitive damages in any such proceeding.
(b) Notice of Arbitration. If Buyer, Seller or Parent asserts that
there exists a Dispute, then such Person (the "Disputing Person") will give
the other party involved in such Dispute a written notice setting forth the
nature of the asserted Dispute. If the Persons giving and receiving such
notice (the "Disputing Parties") do not resolve any such asserted Dispute
prior to the tenth Business Day after such notice is given, then either
Disputing Party may commence arbitration pursuant to this Section 10.15 by
giving the other Disputing Party
20
a written notice to that effect (an "Arbitration Notice"), setting forth
any matters which are required to be set forth therein in accordance with
the AAA Rules.
(c) Selection of Arbitrator. The Disputing Parties will attempt to
select a single arbitrator by mutual agreement. If no such arbitrator is
selected prior to the twentieth Business Day after the related Arbitration
Notice is given, then an arbitrator which is experienced in matters of the
type which are the subject matter of the Dispute will be selected in
accordance with the AAA Rules.
(d) Conduct of Arbitration. The arbitration will be conducted under
the AAA Rules, as modified by any written agreement between the Disputing
Parties. The arbitrator will conduct the arbitration in a manner so that
the final result, determination, finding, judgment or award determined by
the arbitrator (the "Final Arbitration Award") is made or rendered as soon
as practicable, and the parties will use reasonable efforts to cause a
Final Arbitration Award to occur not later than the sixtieth day after the
arbitrator is selected. Any Final Arbitration Award will be final and
binding upon the Disputing Parties, and there will be no appeal from or
reexamination of any Final Arbitration Award, except in the case of fraud,
perjury or evident partiality or misconduct by the arbitrator prejudicing
the rights of a Disputing Party or to correct manifest clerical errors.
(e) Enforcement. Buyer, Parent and Seller agree that a Final
Arbitration Award may be enforced in any state or federal court having
jurisdiction over the subject matter of the related Dispute.
(f) Expenses. A prevailing party in any arbitration proceeding in
connection with this Agreement shall be entitled to recover from the
non-prevailing party its reasonable attorneys' fees and disbursements in
addition to any damages or other remedies awarded to such prevailing party,
and the non-prevailing party also will be required to pay all other costs
and expenses associated with the arbitration; provided that (1) if an
arbitrator is unable to determine that a party is a prevailing party in any
such arbitration proceeding, then such costs and expenses will be equitably
allocated by such arbitrator upon the basis of the outcome of such
arbitration proceeding, and (2) if such arbitrator is unable to allocate
such costs and expenses and expenses in such a manner, then the costs and
expenses of such arbitration will be paid in equal amounts by the Disputing
parties, and each Disputing Party will pay the out-of-pocket expenses
incurred by it. As part of any Final Arbitration Award, the arbitrator may
designate the prevailing party for purposes of this Section 10.15. Except
as provided in the preceding sentences, each party to this Agreement will
bear its own costs and expenses (including legal fees and disbursements) in
connection with any such proceeding or submission.
* * * * *
21
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their duly authorized officers, all as of the day and year first
above written.
MISSION BROADCASTING OF
JOPLIN, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: President
/s/ Xxxxx X. Xxxxx
----------------------------
Xxxxx X. Xxxxx
NEXSTAR BROADCASTING OF
JOPLIN, L.L.C.
By: /s/ Xxxxx X. Xxxx
-------------------------
Name: Xxxxx X. Xxxx
Title: President
22
APPENDIX
The following capitalized terms have the following meaning when used
in this Agreement and the Schedules attached to this Agreement:
A "Business Day" means any day other than a Saturday, Sunday or other
day upon which banks in Clarks Summit, Pennsylvania, are not open for business.
"Closing Date" means the date upon which the Closing occurs.
"Communications Act" means the Communications Act of 1934, as in
effect from time to time.
With respect to any Contract, a "Consent" means any consent or
approval of any Person other than any party to this Agreement which, in
accordance with the terms of such Contract, is required to be obtained in order
to permit the consummation of the Sale or the Assumption.
"Contract" means any agreement, lease, arrangement,
commitment, or understanding to which Seller or Parent, with respect to the
Station, is a party.
"Equity Securities" of any Person means (i) any of such Person's
capital stock, partnership, members, joint venture or other ownership or equity
interest, participation or securities (whether voting or non-voting, whether
preferred, common or otherwise, and including any stock appreciation, contingent
interest or similar right) and (ii) any option, warrant, security or other right
(including debt securities) directly or indirectly convertible into or
exercisable or exchangeable for, or otherwise to acquire directly or indirectly,
any stock, interest, participation or security described in clause (i) above.
"Existing Station Indebtedness" means (i) the principal of and
interest on all Indebtedness, whether now or hereafter existing or arising, due
or to become due to, or held or to be held by the lenders under or pursuant to
the Credit Agreement dated as of January 12, 2001, among Bastet Broadcasting,
Inc., Mission Broadcasting of Wichita Falls, Inc., Mission and the Various Banks
named therein, Bank of America, N.A., as Administrative Agent, Barclays Bank
PLC, as Syndication Agent, and First Union National Bank, as Documentation
Agent, as amended, supplemented and otherwise modified from time to time,
including, without limitation, all extensions, renewals, restatements,
rearrangements and refundings thereof (the "Existing Credit Agreement"), and any
and all other amounts payable in connection therewith or in connection with the
other Loan Documents (as that term is defined in the Existing Credit Agreement),
whether on account of fees, indemnities, reimbursement obligations in respect of
letters of credit, costs, expenses or otherwise; and (ii) the principal of and
interest on any Indebtedness, hereafter existing or arising under any amendment,
restatement, supplement, renewal, extension, rearrangement and substitution, in
whole or in part, of any obligation described in the preceding clause (i) or
this clause (ii).
"FCC" means the Federal Communications Commission or any successor
thereto.
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"FCC Approval Date" means the first day upon which each Required FCC
Consent is effective.
"Xxxx-Xxxxx-Xxxxxx Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as in effect from time to time.
"Indebtedness" means, without duplication, (i) any indebtedness for
borrowed money or issued in substitution for or exchange of indebtedness for
borrowed money, (ii) any indebtedness evidenced by any note, bond, debenture or
other debt security, (iii) any indebtedness for the deferred purchase price of
property or services with respect to which a Person is liable, contingently or
otherwise, as obligor or otherwise (other than trade payables and other current
liabilities incurred in the ordinary course of business which are not more than
six months past due), (iv) any commitment by which a Person assures a creditor
against loss (including, without limitation, contingent reimbursement
obligations with respect to letters of credit), (v) any indebtedness guaranteed
in any manner by a Person (including, without limitation, guarantees in the form
of an agreement to repurchase or reimburse), (vi) any obligations under
capitalized leases with respect to which a Person is liable, contingently or
otherwise, as obligor, guarantor or otherwise, or with respect to which
obligations a Person assures a creditor against loss, (vii) any indebtedness
secured by a Lien on a Person's assets and (viii) any unsatisfied obligation for
"withdrawal liability" to a "multiemployer plan" as such terms are defined under
ERISA.
"Legal Requirements" means the Communications Act, the rules,
regulations and published policies of the FCC, and all other federal, state and
local laws, rules, regulations, ordinances, judgments, orders and decrees.
"Lien" means any mortgage, pledge, hypothecation, encumbrance, lien
(statutory or otherwise), preference, priority or other security agreement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement and any lease having substantially the same effect as any of
the foregoing and any assignment or deposit arrangement in the nature of a
security device).
"Option Expiration Date" means the ninth anniversary of the date of
this Agreement.
A "Person" means any individual, partnership, joint venture,
corporation, limited liability company, trust, unincorporated association or
government or department thereof.
A "Required FCC Consent" means any action or order by the FCC granting
its consent to the consummation of a Sale pursuant to this Agreement without any
condition which in the reasonable judgment of Buyer or Seller is adverse to
Buyer or Seller, as the case may be, in any material respect.
"Transaction Documents" means this Agreement and all other documents
executed and delivered in connection therewith, in each case as in effect from
time to time.
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Schedule 2.1
Cash Purchase Price
The "Cash Purchase Price" will be an amount equal to the greater of
(a) $1.00 and (b) the aggregate amount of the Existing Station Indebtedness (as
defined in this Agreement).
In view of the manner in which the Cash Purchase Price is to be
determined, and without limiting the covenants and agreements of Seller and
Parent set forth in Article VI of this Agreement, without the prior written
consent of Buyer or an entity under common control with Buyer, Seller will not,
and Parent will not permit Seller to, increase the principal amount of any
Indebtedness described in clause (i) of the definition of "Existing Station
Indebtedness" set forth in this Agreement or enter into any amendment,
restatement, supplement, renewal, extension, rearrangement and substitution
described in clause (ii) of such definition that increases the principal amount
of the Existing Station Indebtedness.
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