ASSET PURCHASE AGREEMENT
This
ASSET PURCHASE AGREEMENT (this “Agreement”),
made
as of this 3rd
day of
April, 2008, is by and between EBC SOUTHWEST FLORIDA, INC., an Arkansas
corporation (“Seller”),
XXXXX
COMMUNICATIONS, LLC, a Tennessee limited liability company (“Buyer”),
and
Xxxxx Xxxxx, an individual, for the limited purpose set forth under Section
4.8.
PRELIMINARY
STATEMENT
Seller
owns and operates the following television broadcast station (collectively,
the
“Stations”)
pursuant to FCC Licenses issued by the Federal Communications Commission (the
“FCC”):
WUVF-CA
(Facility ID No. 71138), licensed to Naples, Florida;
WLZE-LP
(Facility ID No. 41376), licensed to Fort Xxxxx, Florida;
WBSP-CA
(Facility ID No. 64580), licensed to Naples, Florida;
WEVU-CA
(Facility ID No. 64579), licensed to Fort Xxxxx, Florida; and
WTLE-LP
(Facility ID No. 36967), licensed to Fort Xxxxx, Florida.
Subject
to the terms and conditions set forth herein, Seller desires to assign to Buyer,
and Buyer desires to acquire from Seller, all of the assets used or useful
in
the business and operation of the Stations on the terms and subject to the
conditions set forth herein.
AGREEMENT
In
consideration of the statements above and the mutual agreements and covenants
contained in this Agreement, the parties to this Agreement, intending to be
bound legally, hereby agree as follows:
SECTION
1 - DEFINITIONS
1.1 Certain
Defined Terms.
The
terms set forth on Exhibit
A
hereto,
as used in this Agreement, have the meanings set forth in Exhibit
A.
1.2 Rules
of Construction.
A
reference to one gender shall include any other gender. The parties agree that
any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be applied in the construction or
interpretation of this Agreement. Except as specifically otherwise provided
in
this Agreement, a reference to a Section, the Schedules or any Exhibit is a
reference to a Section of this Agreement or the Schedules or Exhibits hereto,
and the terms “hereof,” “herein,” and other like terms refer to this Agreement
as a whole, including the Schedules and Exhibits to this Agreement. All
references to “Dollars” and “$” refer to the currency of the United
States.
1.3 Sections.
The
division of this Agreement into sections and the insertion of headings are
for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
SECTION
2 - PURCHASE
AND SALE
2.1 Purchase
and Sale of the Assets. Subject
to the terms and conditions set forth in this Agreement, Seller hereby agrees
to
transfer, convey, assign and deliver to Buyer on the Closing Date, and Buyer
agrees to acquire, substantially all of the assets used or useful in the
business or operation of the Stations, but excluding the Excluded Assets (such
assets being conveyed being collectively referred to herein as the “Assets”),
free
and clear of any Lien, except for Permitted Liens, including, without
limitation, the following:
(a) the
Tangible Personal Property;
(b) the
Real
Property;
(c) the
Assumed Contracts;
(d) the
FCC
Licenses;
(e) the
Intangibles;
(f) the
Internet Websites;
(g) the
deposits and prepaid expenses related to the Stations as allocated in accordance
with Section
2.5(a);
(h) the
FCC
logs and all records required by the FCC to be kept by the Stations, all other
books and records relating to the Stations, including, without limitation,
executed copies of the Assumed Contracts and account books;
(i) the
claims and rights against third parties if and to the extent they relate to
or
affect the business or operation of the Stations after the Effective Time,
including, without limitation, all rights under manufacturers' and vendors'
warranties relating to the Assets; and
(j) all
goodwill related thereto.
2.2 Excluded
Assets.
The
Assets shall not include the following assets and properties of Seller (the
“Excluded
Assets”):
(a) cash
and
cash equivalents;
(b) Accounts
Receivable;
(c) contracts
of insurance and insurance plans;
(d) Employee
Contracts and other Contracts that are not Assumed Contracts (collectively,
the
“Excluded
Contracts”);
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(e) Seller's
corporate records that pertain to internal corporate matters of
Seller;
(f) the
Employee Plans and Employee Benefits; and
(g) the
assets of Seller located at Seller’s or Seller’s Affiliate’s master control
facility located in Little Rock, Arkansas.
2.3 Assumption
of Liabilities and Obligations.
(a) As
of the
Closing Date, Buyer shall assume and undertake to pay, discharge and perform
only the obligations and liabilities of Seller under the Assumed Contracts
and
the FCC Licenses that relate to the period on and after the Effective Time
and
arise out of events related to Buyer's ownership of the Assets or Buyer's
operation of the Stations on and after the Effective Time (the “Assumed
Liabilities”):
(b) Seller
shall retain all liabilities of Seller not expressly assumed by Buyer as an
Assumed Liability (the “Retained
Liabilities”).
2.4 Purchase
Price. As
consideration for the sale of the Assets pursuant to the terms and subject
to
the conditions hereof, at the Closing, Buyer shall pay to, and for the benefit
of Seller, by wire transfer of immediately available funds to such account
for
which instructions are delivered by Seller to Buyer not less than three (3)
days
prior to the Closing, a total aggregate amount equal Eight Million Dollars
and
No/100s ($8,000,000.00), subject to adjustment pursuant to Section
2.5
and
2.6
hereof
(the “Purchase
Price”).
In
addition, the Purchase Price will be increased and paid by Buyer to Seller
based
on the performance and/or future sale of the Stations as follows:
(a) If,
within the first 12 month period following Closing, Buyer enters into an
agreement to assign the Stations, collectively or individually, to an
unaffiliated third party, fifty percent (50%) of the proceeds of the purchase
price from that transaction that are of an amount greater than the Purchase
Price referenced herein shall be paid to Seller within three (3) business days
after closing on the future sale.
(b) If,
within the second 12 month period following Closing, Buyer enters into an
agreement to assign the Stations, collectively or individually, to an
unaffiliated third party, twenty five percent (25%) of the proceeds of the
purchase price from that transaction that are of an amount greater than the
Purchase Price referenced herein shall be paid to Seller within three (3)
business days after closing on the future sale.
2.5 Prorations
and Adjustments at Closing.
(a) All
revenues and all expenses arising from the Assets shall be allocated between
Buyer and Seller in accordance with generally accepted accounting principles,
consistently applied, and to effect the principle that Seller shall receive
all
revenues and shall be responsible for all expenses, costs and liabilities
related to the period prior the Effective Time, or arising out of events related
to Seller's ownership of the Assets or Seller's operation of the Stations prior
the Effective Time, and Buyer shall receive all revenues and shall be
responsible for all expenses, costs and obligations related to the period on
and
after the Effective Time and arising out of events related to Buyer's ownership
of the Assets or Buyer's operation of the Stations on or after the Effective
Time.
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(b) Notwithstanding
anything else in this Section
2.5
to the
contrary, there shall be no prorations or adjustment pursuant to Section
2.5(a)
for, and
Seller shall remain solely liable with respect to, the Excluded Assets and
Retained Liabilities.
2.6 Post-Closing
Adjustment.
(a) Not
less
than ten (10) Business Days prior to the Closing Date, Seller shall deliver
to
Buyer its good faith estimate of the prorations and adjustments to be made
with
respect to the Purchase Price calculated in accordance with Section
2.5
hereof,
including all estimated accrued liabilities and the deposits and prepaid
expenses allocated in accordance with Section
2.5(a)
(the
“Preliminary
Adjustment Statement”).
Seller shall, upon delivery of such Preliminary Adjustment Statement, permit
Buyer and its representatives reasonable access to the accounting records and
accountant work papers (if any) used in connection with the preparation of
the
Preliminary Adjustment Statement. The Preliminary Adjustment Statement shall
be
prepared in accordance with generally accepted accounting principles,
consistently applied.
(b) Within
thirty (30) days after the Closing Date, Seller shall prepare and deliver to
Buyer an itemized list of the final prorations and adjustments calculated in
accordance with Section
2.5
(the
“Closing
Adjustment Statement”).
The
Closing Adjustment Statement shall include a description of the net amount
payable by Buyer or Seller as an adjustment pursuant to Section
2.5
hereof
(the “Closing
Adjustment Amount”).
The
Closing Adjustment Statement shall be prepared in accordance with generally
accepted accounting principles, consistently applied. Seller shall, upon
delivery of such Closing Adjustment Statement, permit Buyer and its
representatives reasonable access to the accounting records and accountant
work
papers (if any) used in connection with the preparation of the Closing
Adjustment Statement.
(c) Within
thirty (30) days after the date the Closing Adjustment Statement is delivered
to
Buyer, Buyer shall complete its examination of the Closing Adjustment Statement
and shall deliver to Seller either (i) the written acknowledgement of its
acceptance of the Closing Adjustment Statement and the Closing Adjustment
Amount, or (ii) a written report setting forth any proposed adjustments to
the
Closing Adjustment Statement and the Closing Adjustment Amount (the
“Adjustment
Report”).
In
the event Buyer, within such thirty (30) day period, fails to deliver an
Adjustment Report, the Closing Adjustment Statement shall be deemed to be
correct and the Closing Adjustment Amount to have been finally determined for
purposes of Section
2.6(e)
hereof.
(d) In
the
event Seller and Buyer fail to agree on any or all of the proposed adjustments
to the Closing Adjustment Amount contained in the Adjustment Report within
thirty (30) days after Buyer receives the Adjustment Report, then any party
hereto may retain a nationally-recognized independent certified public
accounting firm as may be mutually agreed upon by the parties of the need for
its services as an independent auditor and not for Seller or Buyer (the
“Independent
Auditor”).
The
Independent Auditor shall be instructed to make the final determination with
respect to the correctness of the Adjustment Report in accordance with the
terms
and provisions of this Agreement within thirty (30) days after the submission
thereof. The decision by the Independent Auditor as to the adjustments that
should be made to the Closing Adjustment Statement (the “Final
Adjustment”)
shall
be final and binding on Seller and Buyer. Buyer and Seller shall share equally
the costs and expenses of the Independent Auditor but each party hereto shall
bear its own legal and other expenses, if any.
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(e) The
term
“Final
Adjustment Statement”
shall
mean the Closing Adjustment Statement delivered by Buyer pursuant to
Section
2.6(b),
as
adjusted, if at all, pursuant to this Section
2.6;
the
term “Final
Adjustment Amount”
shall
mean the amount determined from the Final Adjustment Statement; and the date
on
which the Final Adjustment Statement is finally determined pursuant to this
Section
2.6(e)
shall
hereinafter be referred to as the “Adjustment
Settlement Date.”
The
Final Adjustment Amount shall be paid by the party owing the debt to the party
owed the debt within five (5) Business Days after the Adjustment Settlement
Date.
(f) Any
payments required pursuant to Section
2.6(e)
shall be
made by wire transfer of immediately available funds for credit to the party
hereto owed the debt in accordance with wire transfer instructions provided
by
such recipient in writing.
(g) If
either
Buyer or Seller fails to pay when due any amount under this Section
2.6,
interest
on such amount will accrue from the date payment was due and be payable until
paid at the per annum rate of the “prime rate” as published in the Money Rates
column of the Eastern Edition of The
Wall Street Journal
(or the
average of such rates if more than one rate is indicated) plus two percent
(2%)
and shall be payable upon demand.
2.7 Allocation
of Purchase Price.
Seller
shall prepare an allocation of the Purchase Price among the Assets (the
“Allocation”),
no
later than ten (10) days prior to the Closing Date. The Allocation shall be
subject to Buyer’s consent, which consent shall not be unreasonably withheld.
Seller and Buyer hereby agree that the Allocation shall be final and conclusive
with respect to the allocation of the Purchase Price among the Assets, and
Seller and Buyer hereby further agree (a) to use the Allocation for all
accounting, financial reporting and Tax purposes; (b) that any Tax Returns
or
other Tax information they may file or cause to be filed with any governmental
agency or fiscal intermediary shall be prepared and filed in a manner consistent
with such Allocation; and (c) in furtherance of the foregoing and to the extent
required, they will each properly and timely file Form 8594 in accordance with
Section 1060 of the Code.
2.8 Transfer
Taxes.
All
recordation, transfer, documentary, excise, sales, value added, use, stamp,
conveyance or other similar Taxes, duties or governmental charges, and all
recording or filing fees or similar costs, imposed or levied by reason of,
in
connection with or attributable to this Agreement or the transactions
contemplated hereby but excluding all income taxes and other fees based upon
gain realized by Seller as a result of the sale of the Assets (collectively,
“Transfer
Taxes”)
shall
be borne equally by Buyer on the one hand, and Seller on the other
hand.
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SECTION
3 - REPRESENTATIONS
AND WARRANTIES OF SELLER
Seller
hereby represents and warrants to Buyer as follows:
3.1 Organization,
Qualification and Authority. Seller
is
a corporation, duly organized, validly existing and in good standing under
the
laws of the State of Arkansas and duly qualified to do business and is in good
standing as a foreign corporation in the State of Florida. Seller has the
requisite power and authority to own and operate the Assets, to carry on the
business and operation of the Stations and to execute, deliver and perform
this
Agreement and the documents contemplated hereby according to their respective
terms.
3.2 Authorization
and Binding Obligation.
The
execution, delivery and performance of this Agreement, and the consummation
of
the transactions contemplated hereby, by Seller have been duly and validly
authorized by all necessary action on the part of Seller. This Agreement has
been duly executed and delivered by Seller and 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; Consents.
Except
as set forth in Schedule
3.3,
subject
to the receipt of the FCC Consent, the execution, delivery and performance
by
Seller of this Agreement (with or without the giving of notice, the lapse of
time, or both), and the consummation by Seller of the transactions contemplated
hereby: (a) does not require the consent of any third party; (b) will not
conflict with the Certificate of Incorporation and Bylaws of Seller; (c) will
not conflict in any material respect with, result in a material breach of or
constitute a material default under (i) any Applicable Law of any Governmental
Authority applicable to Seller or (ii) any Contract; and (d) will not result
in
the creation of any Lien on the Assets other than Permitted Liens. Seller is
not
a party to, nor is Seller bound by, any agreement or commitment that prohibits
the execution and delivery by Seller of this Agreement or the consummation
of
the transactions by Seller contemplated hereby.
3.4 FCC
Licenses.
(a) Schedule
3.4 identifies
and includes an accurate and complete list of all FCC Licenses. Each FCC License
is in full force and effect and the Seller is the authorized legal holder
thereof. The FCC Licenses listed on Schedule
3.4 constitute
all of the licenses and authorizations required under the Communications Act
or
the current rules, regulations and policies of the FCC for the Stations. The
conduct of the business and operation of the Stations is in accordance with
the
FCC Licenses and the Communications Act or the current rules, regulations and
policies of the FCC for the Stations.
(b) Schedule
3.4 sets
forth a true, correct and complete list of any and all material pending
applications filed with the FCC with respect to the Stations, true, correct
and
complete copies of which have been delivered by Seller to Buyer.
(c) There
is
not pending or, to Seller's Best Knowledge, threatened investigation or
proceeding by or before the FCC, nor any pending or, to Seller's Best Knowledge,
threatened order to show cause, notice of violation, notice of apparent
liability, notice of forfeiture or complaint by, before or with the FCC with
respect to Seller or any or all the Stations. There are no facts, conditions
or
events relating to Seller or the Stations that would disqualify Seller under
the
Communications Act or the existing rules, regulations and policies of the FCC
as
assignor of the FCC Licenses as provided in this Agreement or from obtaining
the
FCC Consent to the transactions contemplated herein within the times
contemplated herein.
6
(d) All
returns, reports and statements that Seller is required to file with FCC or
Federal Aviation Administration have been filed in a timely manner and such
returns, reports and statements are true, correct and complete.
(e) The
Stations is in compliance with all rules and regulations of the Federal Aviation
Administration. Each Class A Station license held by Seller is in compliance
with the requirements of Section 73.6001(b) of the FCC’s rules.
3.5 Real
Property.
(a) Schedule
3.5
contains
an accurate and complete list of all Real Property. There is no owned Real
Property used or useful in the operation of the Stations. Seller has good
leasehold title to the leasehold interests included in the Real Property, free
and clear of all Liens, except Permitted Liens.
The
Real Property listed in Schedule
3.5 includes
all real property used or useful in the business and operation of the
Stations.
(b) There
are
(i) no actual, pending or, to Seller's Best Knowledge, threatened impositions
or
assessments for public improvements with respect to any Real Property for which
Seller would be liable or which would be a Lien on the Real Property, other
than
Permitted Liens; (ii) no improvements constructed or, to Seller's Best
Knowledge, planned that would be paid for by means of public assessments upon
any Real Property for which Seller would be liable or which would be a Lien
on
the Real Property; and (iii) no completed, pending or, to Seller's Best
Knowledge, threatened or contemplated condemnation proceeding affecting any
Real
Property or any part thereof or of any sale or any disposition of any Real
Property or any portion thereof in lieu of condemnation.
(c) All
buildings, towers, fixtures, fittings, antenna and other improvements owned
or
leased by Seller included within the Assets are in good working order for the
purposes for which they are currently used by Seller (ordinary wear and tear
excepted) and are located on the Real Property.
(d) The
Real
Property is accessible directly by a public right of way. The current use by
Seller of the Real Property is in compliance with applicable zoning and land-use
laws.
3.6 Tangible
Personal Property. Schedule
3.6
lists
all items of Tangible Personal Property included in the Assets. Seller owns
and
has good title to the Tangible Personal Property listed thereon and none of
the
Tangible Personal Property is subject to any conditional sale or other title
retention agreement or any Liens, except for Permitted Liens. All items of
Tangible Personal Property are in good operating condition (ordinary wear and
tear excepted).
The
Tangible Personal Property included in the Assets includes all tangible personal
property used or useful in the business and operation of the
Stations.
7
3.7 Assumed
Contracts. Schedule
3.7 includes
a complete list of all Assumed Contracts. Except as set forth in Schedule
3.7,
the
Assumed Contracts constitute all Contracts used or useful in the business and
operation of the Stations. Seller has delivered or made available to Buyer
true,
correct and complete copies of all written Assumed Contracts listed on
Schedule
3.7 and
accurate descriptions of all oral Assumed Contracts listed on Schedule
3.7.
Seller
is not in default under any Assumed Contract (and no event has occurred that
with the giving of notice or passage of time, or both, would constitute such
a
default) and, to Seller's Best Knowledge, no other party to any such Assumed
Contract is in default thereunder (and, to Seller's Best Knowledge, no event
has
occurred that with the giving of notice or passage of time, or both, would
constitute such a default). The Assumed Contracts (and Excluded Contracts)
constitute all of the contracts used or useful in the business and operation
of
the Stations. Schedule
3.7
includes
a complete list of all Excluded Contracts.
Each
Assumed Contract is legal, valid, binding, enforceable and in full force and
effect.
3.8 Intangibles.
Schedule
3.8
is a
complete list of all of the Intangibles (exclusive of the FCC Licenses). Seller
has provided or made available to Buyer copies of all documents establishing
or
evidencing the Intangibles listed on Schedule
3.8.
Seller
has not received any notice or demand alleging that Seller or the Stations
is
infringing upon any trademarks, trade names, service marks, service names,
copyrights or similar intellectual property rights owned by any other Person
and, to Seller's Best Knowledge, there is no basis for any such notice or
demand.
The
Intangibles include all of the intangibles used or useful in the business and
operation of the Stations.
3.9 Financial
Statements.
Attached hereto as Schedule
3.9
are
true, correct and complete copies of the financial statements of Seller with
respect to its operation at the Stations as at December 31, 2007, the statement
of income with respect to its operation at the Stations as at and for the twelve
(12) month period ended December 31, 2007, and the balance sheet and statement
of income for the two months ended February 29, 2008 (collectively, the
“Financial
Statements”).
Except as set forth on Schedule
3.9,
the
Financial Statements have been prepared in accordance with generally accepted
accounting principles, consistently applied, and present fairly in all material
respects the financial condition of Seller with respect to the Stations as
at
their respective dates and the results of operations for the periods then
ended.
3.10 Taxes
and Tax Returns.
All Tax
Returns have been timely filed with the appropriate governmental agencies in
all
jurisdictions in which such Tax Returns are required to be filed and all Taxes
shown on such Tax Returns have been properly accrued or timely paid in full
to
the extent such Taxes have become due. There are no Liens on any of the Assets
in connection with any failure (or alleged failure) to pay any Tax related
to
the Stations.
3.11 Insurance.
Schedule
3.11
is a
true, correct and complete list of all insurance policies with respect to the
Stations. All policies of insurance listed in Schedule
3.11
are in
full force and effect.
8
3.12 Personnel.
The
written or oral contract of employment (“Employee
Contracts”)
with
any employee of Seller employed in connection with the Stations (collectively,
the “Employees”)
are
listed and described in Schedule
3.12.
Seller
is not a party to or subject to any collective bargaining agreements with
respect to the Stations and no labor union or other collective bargaining unit
represents or, to Seller's Best Knowledge, claims to represent any of the
employees of the Stations. Except for those Employee Plans described on
Schedule
3.12,
Seller
maintains no other Employee Plans for the benefit of the Employees.
Schedule 3.12
includes
a true, correct and complete list of all Employees, and their compensation
(including bonuses) and accrued vacation and sick days, if any (collectively,
the “Employee
Benefits”). The
Employee Contracts, Employee Plans and Employee Benefits described in
Schedule
3.12
are
Excluded Assets and Retained Liabilities.
3.13 Claims
and Legal Actions.
There
is no claim, legal action, counterclaim, suit, arbitration, or other legal,
administrative or tax proceeding, nor any order, decree or judgment, in progress
or pending, or to Seller's Best Knowledge threatened, against Seller, the Assets
or the Stations.
3.14 Compliance
with Laws.
Except
as
otherwise set forth herein, and to Seller’s Best Knowledge, Seller
is
in compliance
in all
material respects
with the
FCC Licenses and all Applicable Law with respect to the Stations.
3.15 Conduct
of Business in Ordinary Course.
Except
as set forth on Schedule
3.15,
from
February 29, 2008 through the date of this Agreement, to Seller's Best
Knowledge, Seller's operation with respect to the Stations has been in the
ordinary course and Seller has not:
(a) made
any
sale, assignment, lease or other transfer of any of Seller's properties other
than in the normal course of business
with
suitable replacements being obtained therefore;
(b) incurred
loss of, or injury to, any of the Assets or waived any rights of material
value;
(c) mortgaged,
pledged or subjected to any Lien any of its Assets, other than Permitted
Liens;
(d) made
any
change in any method of accounting or accounting practice;
(e) incurred
any liability except in the ordinary course of business or as expressly
permitted or disclosed elsewhere in this Agreement;
(f) conducted
business and operation of the Stations in any manner inconsistent with its
past
practices;
(g) transferred
to any Affiliate of Seller any right, property or interest which is necessary
or
useful in the operation of the Stations; or
(h) suffered
or incurred any event or circumstance that has had or would be reasonably
expected to result in a Material Adverse Effect on (i) the ability of Seller
to
perform its obligations under this Agreement or (ii) the Stations or the
Assets.
9
3.16 Environmental
Matters.
(a) Seller
has delivered to Buyer true, correct and complete copies of all environmental
assessments, reports, studies, and investigations related to the Real Property
that Seller has received or caused to be conducted.
(b) (i) To
Seller's Best Knowledge, no Hazardous Substances are located on or under the
Real Property.
(ii)
There
are, to Seller's Best Knowledge, no underground storage tanks on the Real
Property and any removal by Seller of any underground storage tanks which
existed on the Real Property was pursuant to and in compliance with the
Applicable Environmental Laws.
(iii)
To
Seller's Best Knowledge, the equipment or improvements on the Real Property
do
not contain any asbestos or polychlorinated biphenyls that would constitute
a
violation of, or noncompliance with, any Applicable Environmental
Law.
(iv)
Seller
is
subject to no agreements, consent orders, decrees, judgments, license or permit
conditions or other directives of any Governmental Authority or Person that
are
based on or arise out of Applicable Environmental Laws and relate to the Assets
or the Stations.
(v)
Seller
has given to pertinent Governmental Authorities all notices required pursuant
to
Applicable Environmental Laws in connection with the Stations and the Real
Property. Seller has not received any claim, order or notice of violation or
noncompliance from, or been the subject of any regulatory audit or investigation
(other than any periodic investigation or inspection of a routine nature) by,
any Governmental Authority or Person in connection with the Stations and the
Real Property that is based on or arise out of Applicable Environmental
Laws.
(vi)
No
consent or approval is needed from any Governmental Authority under any
Applicable Environmental Laws for the transfer of the Assets from Seller to
Buyer. Neither the execution of this Agreement nor the closing of the
transactions contemplated hereby will violate any Applicable Environmental
Laws
in any material respect.
(vii)
Seller's
ownership and operation of the Assets has been and is in compliance with all
Applicable Environmental Laws.
3.17 No
Broker.
Except
for Xxxxxxx Communications L.L.C., neither Seller nor any other Person 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.
Seller
shall pay all fees, expenses and commissions of Xxxxxxx Communications
L.L.C.
3.18 Transactions
with Affiliates.
Except
as set forth in Schedule
3.18,
Seller
is not a party, directly or indirectly, to any contract, lease, arrangement
or
transaction which is material to the Stations, whether for the purchase, lease
or sale of property, for the rendition of services or otherwise, with any
Affiliate of Seller, or any officer, director, employee, proprietor, partner
or
shareholder of Seller and no such Person has any interest in or right to any
of
the Assets. The terms and conditions of the transactions involving Seller and
any Affiliate of Seller which are identified on Schedule
3.18
are
described briefly therein.
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3.19 Good
Title Conveyed; Required Consents.
Subject
to the receipt of the FCC Consent and the Required Consents, Seller has complete
and unrestricted power and the unqualified right to sell, transfer, assign,
convey and deliver to the Buyer, and upon consummation of the transaction
contemplated by this Agreement Buyer will acquire, good title to the Assets,
and
good and marketable title to the Real Property, in each case free and clear
of
all Liens other than Permitted Liens.
All
Required Consents are listed in Schedule
3.19.
Except
as noted on Schedule
3.19,
Seller
is and always has been in sole and exclusive possession, and the sole and
exclusive owner of, the Assets, free and clear of any restrictions on transfer,
taxes, Liens, purchase rights, contracts, commitments, equities, claims, or
demands.
3.20 Assets
of the Business.
The
Assets, together with the Excluded Assets, comprise all of the assets used
and
useful in the business and operation of the Stations.
3.21 No
Restrictions.
Other
than as listed and described in Schedule
3.21,
there
are no Contracts or other arrangements to which Seller is a party that prohibit
or restrict (i) the Stations’ ability to compete in any business anywhere in any
geographic area, (ii) the customers with which the Stations may do business,
or
(iii) the prices the Stations may charge
3.22 Untrue
Statements.
No
statement by Seller contained in this Agreement (including the Exhibits and
Schedules hereto) and no written statement contained in any certificates
required to be delivered pursuant to or in connection herewith contains or
will
contain any untrue statement of a material fact, or is incomplete in any
material respect.
SECTION
4 - REPRESENTATIONS
AND WARRANTIES OF BUYER
Buyer
hereby represents and warrants to Seller as follows:
4.1 Organization,
Standing and Authority.
Buyer
is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Tennessee. Buyer is or as of Closing
will be duly qualified to conduct business in each jurisdiction in which such
qualification is necessary for Buyer to own the Assets and operate the Stations
and conduct the business of the Stations. Buyer has the requisite power and
authority to (a) execute, deliver and perform this Agreement and consummate
the
transactions contemplated hereby, (b) own the Assets, subject to obtaining
the
FCC Consent,
and (c)
hold the FCC Licenses, subject to obtaining the FCC Consent.
4.2 Authorization
and Binding Obligation.
The
execution, delivery and performance of this Agreement and the consummation
of
the transactions contemplated hereby by Buyer have been duly and validly
authorized by all necessary action on the part of Buyer. This Agreement has
been
duly executed and delivered by Buyer and constitutes a 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.
11
4.3 Absence
of Conflicting Agreements and Required Consents.
Subject
to the receipt of the FCC Consent, 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): (a) do not require the consent
of any other Person; (b) will not conflict with the Certificate of Incorporation
or the Bylaws of Buyer; and (c) will not conflict in any material respect with,
result in a material breach of or constitute a material default under any
Applicable Law or any material contract or agreement to which Buyer is a party.
4.4 Buyer
Qualifications.
To
Buyer's Knowledge, no fact or circumstance exists relating to the FCC
qualifications of Buyer that (a) could reasonably be expected to prevent or
delay the FCC from granting the Assignment Application or (b) would otherwise
disqualify Buyer as the licensee of the Stations.
4.5 Bankruptcy.
No
insolvency proceedings of any character, including bankruptcy, receivership,
reorganization, composition or arrangement with creditors, voluntary or
involuntary, affecting Buyer are pending or, to Buyer's Best Knowledge,
threatened, and Buyer has not made any assignment for the benefit of creditors
or taken any action in contemplation of, or which would constitute the basis
for, the institution of such insolvency proceedings.
4.6 No
Broker.
Neither
Buyer nor any other Person acting on behalf of Buyer has incurred any liability
for any finders' or brokers' fees or commissions in connection with this
Agreement or the transactions contemplated hereby.
4.7 Untrue
Statements.
No
statement by Buyer contained in this Agreement and no written statement
contained in any certificates required to be delivered pursuant to or in
connection herewith contains or will contain any untrue statement of a material
fact, or is incomplete in any material respect.
4.8 Guaranty. Xxxxx
Xxxxx, by his execution of this Agreement, hereby absolutely and unconditionally
guarantees the full performance by the Buyer of its obligations concerning
payment of the Purchase Price as set forth under Section
2.4,
herein.
SECTION
5 - OPERATION
OF THE STATION PRIOR TO CLOSING
5.1 Generally.
(a) During
the period commencing on the date hereof and ending on the earlier of the
Closing Date or the Termination Date, Seller shall operate and control the
Stations in all material respects in the ordinary course of business and refrain
from any extraordinary transactions (except where such conduct would conflict
with the other covenants set forth in this Section
5.1
or with
Seller's other obligations under this Agreement) in all cases in accordance
with
the covenants contained in this Section
5.
(b) Seller
shall maintain and repair the Assets, maintain inventory of supplies, parts
and
other materials and keep books of account, records and files, in each case
in
the ordinary course of business consistent with past practice.
12
(c) Seller
shall continue to operate and control the FCC Licenses in accordance with the
terms thereof and in compliance with all Applicable Law. Seller shall execute
and file promptly all necessary applications for renewal of the FCC Licenses
and
timely file with the FCC all required reports and pay all required annual
regulatory fees for the operation of the Stations. Seller will deliver to Buyer,
within ten (10) Business Days after filing, copies of any reports, applications
or responses to the FCC related to the Stations which are filed prior to the
Closing Date.
(d) Prior
to
the Closing Date, except as otherwise permitted by any provision of this
Section
5,
Seller
shall not, without the prior written consent of Buyer:
(i)
incur
any
receivables relating to the Stations other than in the ordinary course of the
Stations consistent with past practice, including, without limitation, in
respect of the amount and nature of such receivables;
(ii)
apply
to
the FCC for or seek to amend any construction permit or other pending
application that would restrict the Stations’ operation or make any material
change in the Stations' buildings, leasehold improvements or fixtures that
is
not in the ordinary course of business, except when such change is necessary
to
maintain or continue the transmission of the Stations' signal at substantially
the same power and strength and interference level as transmitted on the date
hereof,
(iii)
enter
into, renew, amend or modify any contract, lease, license or other agreement
unless such document is either (1) subject to termination on thirty (30) days
notice, (2) will be fully performed and satisfied on or prior to the date thirty
(30) days following its execution or (3) an Excluded Contract;
(iv)
assign,
lease or otherwise transfer or dispose of any of the Assets, except in
connection with the acquisition of replacement property of equivalent kind
and
use; or
(v)
except
as
required by Applicable Law or existing contract, (A) hire any employee except
in
the ordinary course of business, or (B) enter into, renew, amend or modify
any
contract of employment, collective bargaining agreement or other labor
contract.
(e) Prior
to
the Closing Date, Seller will deliver copies of all Contracts entered into
by
Seller with respect to the Stations between the date of this Agreement and
the
Closing Date; such delivery to be made promptly after such Contracts are entered
into.
5.2 Insurance.
Seller
shall maintain the existing insurance policies on the Assets or other policies
providing substantially similar coverages until the Closing.
5.3 Financial
Information.
Seller
shall furnish Buyer, within thirty (30) days after the end of each month ending
between the date of this Agreement and the Closing, an unaudited statement
of
income and expense for the Stations and such other financial information
relating to the Stations as Buyer may reasonably request.
5.4 Notice
of Certain Matters.
Seller
shall give prompt written notice to Buyer and Buyer shall give prompt written
notice to Seller of any failure of Seller or Buyer, as the case may be, to
comply with or satisfy any representation, warranty, covenant, condition or
agreement to be complied with or satisfied by it hereunder.
13
5.5 Notice
of Proceedings.
Seller
and Buyer shall promptly notify the other 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 this Agreement or the transactions contemplated
hereunder, or upon receiving any notice from any Governmental Authority of
its
intention to institute an investigation into, or institute a suit or proceeding
to restrain or enjoin the consummation of this Agreement or the transactions
contemplated hereby. Seller and Buyer will each use commercially reasonable
efforts to contest, defend and resolve any such suit, proceeding or injunction
brought against it so as to permit the prompt consummation of the transactions
contemplated hereby. Seller shall notify Buyer promptly of any material action
filed or threatened against the Stations or the Assets.
5.6 Employees.
Buyer
is not required to assume any Employees. No later than thirty (30) days prior
to
the Closing Date, Seller shall provide to Buyer a list of all Employees then
employed at the Stations. Buyer shall, prior to the Closing Date, (i) notify
Seller in writing of the names of the Employees that Buyer intends to hire,
and
(ii) in the sole discretion of Buyer, offer employment to such Employees. Each
employee who accepts Buyer's offer of employment shall be referred to herein
as
a “Buyer
Employee”.
Seller
shall, immediately prior to the Closing Date, terminate each Employee with
respect to their employment as it relates to the Assets and the Stations.
Notwithstanding anything to the contrary contained herein, unless otherwise
provided under the terms of a written employment agreement, each Buyer Employee
shall be employed by Buyer on an at-will basis and nothing shall prohibit Buyer
from terminating such employment at any time after the Closing.
Buyer
shall provide such benefits to the Buyer Employees as Buyer, in its sole
discretion, determines.
5.7 WARN
Act.
Buyer
and Seller agree to cooperate in good faith to determine whether any
notification may be required under the WARN Act, as a result of the transactions
contemplated under the Agreement and, if such notices are required, to provide
such notice in a manner that is reasonably satisfactory to each of the parties
hereto.
SECTION
6 - SPECIAL
COVENANTS AND AGREEMENTS
6.1 FCC
Consent.
(a) The
assignment of the FCC Licenses from Seller to Buyer as contemplated by this
Agreement is subject to the prior consent and approval of the FCC.
(b) Within
five (5) Business Days after the date hereof, Seller and Buyer shall prepare
and
file with the FCC the Assignment Application. The parties shall thereafter
prosecute the Assignment Application with commercially reasonable diligence
and
otherwise use their commercially reasonable efforts to obtain the grant of
the
Assignment Application as expeditiously as practicable. Each party hereto will
promptly provide to the other party hereto a copy of any pleading, order or
other document served on them relating to such Assignment Application.
14
(c) Each
party hereto agrees to comply with any condition imposed on it by any FCC
Consent, except that no party hereto shall be required to comply with a
condition if compliance with the condition would have a material adverse effect
upon it. Buyer and Seller shall oppose any petitions to deny or other objections
filed with respect to the application for any FCC Consent and, to the extent
agreed upon by Buyer and Seller any requests for reconsideration or review
of
any FCC Consent.
(d) If
the
Closing shall not have occurred for any reason within the original effective
period of any FCC Consent, and none of the parties shall have terminated this
Agreement under Section
9,
the
parties hereto shall jointly request an extension of the effective period of
such FCC Consent. No extension of the effective period of any FCC Consent shall
limit the exercise by any party hereto of its right to terminate the Agreement
under Section
9
hereof.
All FCC filing fees shall be paid equally by Buyer and Seller.
6.2 Third
Party Consents.
Seller
shall obtain the Required Consents in a form and substance reasonably acceptable
to Buyer, together with any other third party consent that may be necessary
in
connection with the transactions contemplated herein. In addition, Seller shall
obtain from the lessors under all leases that are Assumed Contracts estoppels
and consents in the form attached hereto as Exhibit
B.
If a
Required Consent is not obtained, or if an attempted assignment of the related
Assumed Contract would be ineffective, Seller shall provide to Buyer the
benefits of such Assumed Contract and, to the extent Buyer is provided with
the
benefits of such Assumed Contract, Buyer shall perform or discharge on behalf
of
Seller the obligations and liabilities under such Assumed Contract in accordance
with the provisions thereof.
6.3 Confidentiality.
(a) None
of
the parties hereto will use or disclose to any other Person (except as may
be
necessary for the consummation of the transactions contemplated hereby, or
as
required by Applicable Law, and then only with prior notice to the other party
hereto) this Agreement or any information received from the other party hereto
or their agents in the course of investigating, negotiating and performing
the
transactions contemplated by this Agreement; provided,
however,
that
each party hereto may disclose such information to such party's officers,
directors, employees, lenders, advisors, attorneys, accountants and financial
advisors who need to know such information in connection with the consummation
of the transactions contemplated by this Agreement and who are informed by
such
party of the confidential nature of such information. Nothing shall be deemed
to
be confidential information that: (i) is already in such party's possession,
provided that such information is not known by such party to be subject to
another confidentiality agreement with or other obligation of secrecy to the
other party hereto or another party, or (ii) becomes generally available to
the
public other than as a result of a disclosure by such party or such party's
officers, directors, employees, lenders, advisors, attorneys or accountants,
or
(iii) becomes available to such party on a nonconfidential basis from a source
other than another party or its advisors, provided that such source is not
known
by such party to be bound by a confidentiality agreement with, or other
obligation of secrecy to, any of the other party hereto or another party, or
(iv) is developed independently by any party hereto without resort to the
confidential information of the other party hereto. In the event this Agreement
is terminated and the transactions contemplated hereby abandoned, each party
hereto will return to the other party hereto all information, including, without
limitation, all documents and other written confidential material, obtained
by
such party from the other party hereto in connection with the transactions
contemplated by this Agreement.
15
6.4 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 or desirable to implement
and
consummate this Agreement, and otherwise use their commercially reasonable
efforts to consummate the transactions contemplated hereby and to fulfill their
obligations under this Agreement.
6.5 Control
of the Stations.
Prior
to the Closing Date, Buyer shall not, directly or indirectly, control, supervise
or direct or attempt to control, supervise or direct, the operation of the
Stations.
6.6 Access
to Information.
Seller
shall provide Buyer, and its representatives, agents and employees, access
to
and the right to copy, if applicable, any Assets and any books and records
related to the Assets or the business and operation of the Stations as
reasonably requested by Buyer or its representatives, agents or employees.
Prior
to the Closing and for two (2) years after the Closing, Seller shall provide
to
Buyer copies of such accounting information and reports relating to the Stations
that are reasonably available to Seller in the ordinary course of business
as
Buyer deems reasonably necessary to enable Buyer to satisfy disclosure
requirements of lenders or other reasonable business purposes. Seller agrees
to
use commercially reasonable efforts to make its outside independent accountants
available to Buyer and its accountants.
6.7 Further
Assurances.
From
and after the Closing, each party hereto shall from time to time, at the request
of any other party hereto and without further cost or expense to such requesting
party, execute and deliver such other instruments of conveyance and transfer
and
take such other actions as such other party hereto may reasonably request in
order more effectively to carry out this Agreement and the other agreements
specified in this Agreement and to vest in the Buyer good title to the Assets,
and good and marketable title to the Real Property, in all cases free and clear
of all Liens, except Permitted Liens.
6.8 Environmental
or Engineering Issues.
Within
forty-five (45) days of the date hereof, Buyer may cause to be conducted a
Phase
I environmental audit (the “Environmental
Audit”)
with
respect to the Real Property by an environmental consultant reasonably
acceptable to Buyer (the “Environmental
Consultant”).
Buyer
and Seller shall reasonably cooperate in scheduling such Environmental Audit
and
providing reasonable access to the Real Property for such Environmental Audit.
If the Environmental Consultant recommends further investigation of any
potential environmental conditions with respect to the Real Property, Buyer
shall promptly notify Seller and the parties shall reasonably cooperate with
respect to the completion of such investigation as soon as practicable (the
“Environmental
Investigation”).
Seller shall, prior to the Closing, make all reasonable attempts to remedy
any
and all environmental and engineering issues identified by Buyer with respect
to
the Real Property by written notice to Seller within ten (10) days of the
Buyer’s receipt of the Environmental Audit and completion of the Environmental
Investigation, and such remedies shall be to Buyer's satisfaction, in Buyer's
sole discretion, provided, however, that in the event that the costs for such
remedy exceed Twenty
Five Thousand
Dollars
($25,000.00),
Seller
may decide not to undertake such remedies. In the event that Seller does not
undertake to perform the remedies as set forth herein, or the remedies are
not
to Buyer's satisfaction, in Buyer's sole discretion, then Buyer may elect to
terminate this Agreement upon thirty (30) days prior written notice to Seller,
and this Agreement shall be null and void,
or
Buyer may elect to proceed to consummate the transactions contemplated in this
Agreement and complete the remediation after the Closing, in which event, the
Parties shall agree upon a Person to prepare an estimate of the costs and
expenses of such remediation, and the Purchase Price shall be adjusted downward
to reflect the estimate of such remediation.
16
SECTION
7 - CONDITIONS
TO OBLIGATIONS OF BUYER AND SELLER
7.1 Conditions
to Obligations of Buyer.
All
obligations of Buyer at the Closing are subject at Buyer's option to the
satisfaction or waiver on or prior to the Closing Date of each of the following
conditions:
(a) All
representations and warranties of Seller contained in this Agreement, if
specifically qualified by materiality, shall be true and accurate in all
respects, and, if not so qualified, shall be true and accurate in all material
respects, at and as of the Closing Date as though made at and as of that
time.
(b) 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) There
shall not have been any modification of any FCC License that could have a
Material Adverse Effect. Excluding any proceeding relating to the FCC Consent
or
disclosed on Schedule
3.4,
no
proceeding shall be pending the effect of which could be to revoke, cancel,
fail
to renew, suspend or modify adversely any FCC License.
(d) Except
for the Permitted Liens, the Real Property shall not be subject to any
exceptions that interfere with the permitted or intended use of the Real
Property by Buyer.
(e) Seller
has remedied any and all environmental and engineering issues identified by
Buyer pursuant and subject to the terms and conditions of Section
6.8.
(f) Seller
shall have delivered the items required to be delivered pursuant to Section
8.3.
(g) No
injunction, order, judgment or decree of any nature of any Governmental
Authority of competent jurisdiction shall be in effect that restrains or
prohibits the consummation of the transactions contemplated by this
Agreement.
(h) There
shall not have been a material adverse change to any of the Assets, Assumed
Liabilities or the Stations.
(i) The
FCC
Consent shall have been granted by Final Order.
17
7.2 Conditions
to Obligations of Seller.
All
obligations of Seller at the Closing hereunder are subject at Seller's option
to
the satisfaction or waiver on or prior to the Closing Date of each of the
following conditions:
(a) All
representations and warranties of Buyer contained in this Agreement, if
specifically qualified by materiality, shall be true and accurate in all
respects, and, if not so qualified, shall be true and accurate in all material
respects, at and as of the Closing Date as though made at and as of that
time.
(b) 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) Buyer
shall have delivered the items required to be delivered pursuant to Section
8.4.
(d) No
injunction, order, judgment or decree of any nature of any Governmental
Authority of competent jurisdiction shall be in effect that restrains or
prohibits the consummation of the transactions contemplated by this
Agreement.
SECTION
8 - CLOSING
AND CLOSING DELIVERIES
8.1 Closing.
(a) Subject
to the satisfaction or waiver (by the party for whose benefit the condition
is
imposed) of the conditions described in Article 7, the parties hereto shall
consummate the transactions contemplated hereby at the Closing, which shall
take
place as of 12:01a.m. Little Rock, Arkansas time on a date that is within ten
(10) Business Days following the date the FCC Consent becomes a Final Order
(or,
upon waiver of such Final Order condition by Buyer, in its sole discretion,
within ten (10) Business Days following the publication of the grant of the
FCC
Consent) and as Buyer shall specify in writing to Seller at least five (5)
Business Days in advance or, if Buyer fails to so specify, on the last date
in
the time period provided for in the foregoing (the “Closing
Date”).
(b) 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. If the regular broadcast transmission in the normal and usual
manner is interrupted for a continuous period of seventy-two
(72) hours
or
more at any time prior to the Closing solely as a result of the actions of
Seller, then Buyer, in its sole discretion, by providing written notice to
Seller, may (i) terminate this Agreement with no further liability or obligation
owed between the Parties, or (ii) postpone the Closing to a date that is fifteen
(15) days after the end of such interruption and, if applicable, Seller's
completion of the restoration and replacement of any Assets at Seller's sole
expense. If any Asset shall suffer any material damage or destruction prior
to
the Closing Date, Seller shall promptly notify Buyer in writing of such damage
and destruction, and shall advise Buyer in writing of the estimated cost to
complete such restoration, repair or replacement. If such restoration, repair
or
replacement exceeds $100,000
and
is
not accomplished prior to the Closing Date, as the same may be extended by
the
parties, Buyer may terminate this Agreement in its sole and absolute
discretion,
postpone the Closing until the restorations, repair or replacements are
accomplished to Buyer’s satisfaction, or proceed to consummate the transactions
contemplated in this Agreement and complete the restorations, repair or
replacements after the Closing, in which event, the Parties shall agree upon
a
Person to prepare an estimate of the costs and expenses of such restorations,
repair or replacements, and the Purchase Price shall be adjusted downward to
reflect the estimate of such restorations, repair or replacements.
18
8.2 Closing
Place.
The
Closing shall be held at such place that is agreed in writing by Buyer and
Seller, and in the absence of agreement, as determined by Buyer.
8.3 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) Duly
executed assignments and other conveyancing documents to convey and vest good
title in and to the Assets to Buyer, free and clear of all Liens, except for
Permitted Liens. Such documents shall include, without limitation, the
following:
(i)
An
Assignment and Assumption Agreement (the “Assignment
and Assumption Agreement”),
duly
executed by Seller;
(ii)
An
Assignment and Acceptance Agreement of the FCC Licenses (the “Assignment
and Acceptance Agreement”),
duly
executed by Licensee; and
(iii)
A
Xxxx of
Sale (the “Xxxx
of Sale”),
duly
executed by Seller.
(b) The
Required Consents in a form and substance acceptable to Buyer in Buyer’s sole
discretion, together with any other consents received prior to
Closing;
(c) A
certificate, dated as of the Closing Date, executed by Seller, certifying to
the
fulfillment of the conditions set forth in Sections
7.1(a)
and
(b);
(d) A
certificate, dated as of the Closing Date, executed by Seller, certifying that
the resolutions, as attached to such certificate, were duly adopted by the
Board
of Directors of Seller, authorizing and approving the execution of this
Agreement and the consummation of the transactions contemplated hereby and
that
such resolutions remain in full force and effect;
(e) Certificates
of incumbency for the officers of Seller duly authorized to execute and deliver
this Agreement and the agreements contemplated hereby;
(f) Standard
documentation (including, without limitation, certain affidavits of Seller)
that
may be reasonably requested of Seller by Buyer in connection with Buyer
obtaining a title insurance policy relating to the Real Property;
(g) Termination
statements and such other documentation as Buyer may reasonably require and
in
form reasonably acceptable to Buyer evidencing the discharge and release of
any
Liens (other than Permitted Liens) on the Assets;
(h) An
Acknowledgement of the Purchase Price;
19
(i) If
applicable, all forms and other documents required by the State or County in
which the Real Property is located to effectuate the transactions contemplated
hereby;
and
(j) Such
other documents as may reasonably be requested by Buyer
8.4 Deliveries
by Buyer.
Prior
to or on the Closing Date, Buyer shall deliver to Seller and Seller the
following, in form and substance reasonably satisfactory to Seller and its
counsel:
(a) The
Purchase Price, in accordance with Section
2.5
hereof,
(b) Appropriate
assumption and acceptance agreements pursuant to which Buyer shall assume and
undertake to perform Seller's obligations under the Assumed Contracts and under
the FCC Licenses to the extent such obligations arise after Closing, including,
without limitation, the following:
(i)
The
Assignment and Assumption Agreement, duly executed by Buyer;
(ii)
The
Xxxx
of Sale, duly executed by Buyer.
(iii)
Such
other documents as may reasonably be requested by Seller.
(c) A
certificate, dated as of the Closing Date, executed by Buyer, certifying to
the
fulfillment of the conditions set forth in Sections
7.2(a)
and
(b);
(d) A
certificate, dated as of the Closing Date, executed by Buyer, certifying that
the resolutions, as attached to such certificate, where duly adopted by the
Board of Directors of Buyer, authorizing and approving the execution of this
Agreement and the consummation of the transactions contemplated hereby and
that
such resolutions remain in full force and effect;
(e) Certificates
of incumbency for the officers of Buyer duly authorized to execute and deliver
this Agreement and the agreements contemplated hereby; and
(f) Such
other documents as may be reasonably requested by Seller.
SECTION
9 - TERMINATION
9.1 Termination
of Agreement.
This
Agreement may be terminated only as follows:
(a) at
any
time by mutual written consent of Seller, on the one hand, and Buyer, on the
other;
(b) by
Buyer
in the event of a breach by Seller of any representation, warranty, covenant
or
other obligation contained herein that (i) would give rise to the failure of
a
condition set forth in Section
7.1(a)
or
7.1(b)
and (ii)
has not been cured within thirty (30) days after the giving of written notice
to
Seller of such breach; provided,
however,
that the
Buyer is not then in default or breach in any material respect of its
obligations under this Agreement;
20
(c) by
Seller
in the event of a breach by Buyer of any representation, warranty, covenant
or
other obligation contained herein that (i) would give rise to the failure of
a
condition set forth in Section
7.2(a)
or
7.2(b)
and (ii)
cannot be or has not been cured within thirty (30) days after the giving of
written notice to Buyer of such breach; provided,
however,
that the
Seller is not then in default or breach in any material respect of its
obligations under this Agreement;
(d) by
any
party hereto, upon written notice to the other party, if any Governmental
Authority of competent jurisdiction shall have issued a final and permanent
order enjoining or otherwise prohibiting the consummation of the transactions
contemplated by this Agreement;
(e) by
Buyer,
in the event that Seller becomes or is declared insolvent or bankrupt, makes
an
assignment for the benefit of all or substantially all of its creditors, enters
into an agreement for the composition, extension or readjustment of all or
substantially all or of its obligations, or becomes the subject of any
proceeding related to its liquidation or insolvency or for the appointment
of a
receiver or similar officer and such proceeding is not dismissed within sixty
(60) days;
(f) by
Seller, in the event that Buyer becomes or is declared insolvent or bankrupt,
makes an assignment for the benefit of all or substantially all of its
creditors, enters into an agreement for the composition, extension or
readjustment of all or substantially all or of its obligations, or becomes
the
subject of any proceeding related to its liquidation or insolvency or for the
appointment of a receiver or similar officer and such proceeding is not
dismissed within sixty (60) days;
(g) by
Buyer
in accordance with Sections
6.8
or
8.1(b);
or
(h) by
Buyer,
upon written notice to Seller, in the event that the Closing has not taken
place
on or before the date that is twelve (12) months from the date on which the
Assignment Application was accepted for filing by the FCC. (other than as a
result of any failure on the part of Buyer to comply with or perform in any
material respect any covenant or obligations set forth in this
Agreement).
(i) In
addition, Seller may terminate this Agreement for any reason prior to the
Closing Date upon providing ten (10) days written notice to Buyer, if it is
otherwise not in breach or default of its obligations under this Agreement,
provided, however, that Seller shall reimburse Buyer within a reasonable period
of time for any and all reasonable and documented expenses Buyer incurred in
entering into this Agreement, including but not limited to attorneys fees and/or
bank processing fees. Seller agrees to exercise its right to terminate under
this section if it refinances its debt with its current lender.
21
9.2 Procedure
and Effect of Termination.
(a) In
the
event of termination of this Agreement by any party or parties hereto pursuant
to Section
9.1,
written
notice thereof shall be given promptly to the other party and this Agreement
shall terminate and the transactions contemplated hereby shall be abandoned
without further action by any of the parties hereto, but subject to and without
limiting any of the rights of the parties specified herein in the event a party
hereto is in default or breach in any material respect of its obligations under
this Agreement. In the event that this Agreement is terminated pursuant to
the
terms and subject to the conditions hereof, upon the Termination
Date:
(i)
Except
as
otherwise provided herein, none of the parties hereto nor any of their
respective partners, directors, officers, shareholders, employers, agents or
Affiliates (each, a “Related
Party”)
shall
have any liability or further obligation to the other party or any of their
respective Related Parties pursuant to this Agreement with respect to which
termination has occurred, except for the obligations of Seller and Buyer as
stated in Sections
6.3
and
10
and this
Section
9.2;
and
(ii)
All
filings, applications and other submissions relating to the transactions
contemplated hereby as to which termination has occurred shall, to the extent
practicable, be withdrawn from the agency or other Person to which
made.
(b) Upon
the
event of Termination, neither Party shall be liable to the other for any special
or punitive damages.
9.3 Attorneys'
Fees, Costs and Expenses.
If
Buyer
or Seller commences an action against the other to enforce any of the terms
of
this Agreement or because of the breach by Buyer or Seller of any of the terms
of this Agreement, the non-prevailing party shall pay to the prevailing party
its reasonable attorneys' fees, costs and expenses incurred in connection with
the prosecution or defense of such action. The term “prevailing party” means the
party obtaining substantially the relief sought, whether by compromise,
settlement or judgment.
SECTION
10 - SURVIVAL
OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION;
CERTAIN REMEDIES
10.1 Survival.
The
representations and warranties contained herein shall survive the Closing for
a
period of twelve (12) months after the Closing Date and shall terminate on
such
date except to the extent that any claims for indemnification in respect of
a
breach of any such representation or warranty is made on or before such date,
in
which case such representation or warranty shall survive until the resolution
of
such claim. Any claim for indemnification in respect of a covenant or agreement
hereunder to be performed before the Closing shall be made before the date
that
is twelve months after the Closing Date. The covenants and agreements contained
herein and to be performed to any extent after the Closing Date shall survive
the Closing for a period of twelve months year after the Closing Date and shall
terminate on such date and any claims for indemnification in respect of a breach
of such covenants to be performed in any respect after the Closing Date must
be
made on or before such date. The covenants and agreements that survive for
any
other period as specifically provided in this Agreement shall survive for the
period so specified.
Notwithstanding anything in the foregoing to the contrary, the twelve month
limitation shall not be applicable to claims arising under the Seller
Fundamental Representations which shall survive until the expiration of the
applicable statute of limitations for each respective claim.
22
10.2 Indemnification
by Seller.
(a) Subject
to paragraph (b) below, after the Closing, Seller hereby agrees to indemnify,
defend and hold Buyer, harmless against and with respect to, and shall reimburse
Buyer for, any and all Damages which Buyer may suffer or incur as a result
of or
in connection with:
(i)
any
breach or inaccuracy of any representation or warranty of Seller made in this
Agreement or any certificate, document or instrument prepared by Seller and
delivered to Buyer pursuant to the terms and subject to the conditions
hereof;
(ii)
any
failure by Seller to carry out, perform or otherwise fulfill or comply with
any
covenant, agreement, undertaking or obligation of Seller under this
Agreement;
(iii)
the
Retained Liabilities;
(iv)
any
Person claiming a broker’s or finder’s fee or commission, or similar payment or
remuneration in respect of the transactions contemplated herein;
and
(v)
any
suit,
action or other proceeding brought by any Governmental Authority or any other
Person arising out of, or related to, any of the matters referred to in the
foregoing clauses (i) through (iv) of this Section
10.2(a).
(b) Seller's
obligation to indemnify Buyer pursuant to Section
10.2(a)
shall be
subject to all of the following limitations:
(i)
Buyer
shall be entitled to indemnification only for those Damages arising with respect
to any claim as to which Buyer has given Seller written notice within the
appropriate time period set forth in Section
10.1
hereof
for such claim.
(ii)
The
parties agree that the payment of any and all claims made by Buyer for
indemnification hereunder, for whatever reason, other than for claims for
indemnification with respect to any Retained Liabilities, shall be limited
to an
aggregate amount equal to the Purchase Price.
23
10.3
Indemnification
by Buyer.
(a)
After
the
Closing, Buyer hereby agrees to indemnify, defend and hold Seller harmless
against and with respect to, and shall reimburse Seller for, any and all Damages
which Seller may suffer or incur as a result of or in connection
with:
(i)
any
breach or inaccuracy of any representation or warranty of Buyer made in this
Agreement or any certificate, document or instrument prepared by Buyer and
delivered to Seller pursuant to the terms and subject to the conditions
hereof;
(ii)
any
failure by Buyer to carry out, perform or otherwise fulfill or comply with
any
covenant, agreement, undertaking or obligation of Buyer under this
Agreement;
(iii)
the
Assumed Liabilities;
(iv)
any
Person claiming a broker’s or finder’s fee or commission, or similar payment or
remuneration in respect of the transactions contemplated herein;
and
(v)
any
suit,
action or other proceeding brought by any Governmental Authority or any other
Person arising out of, or related to, any of the matters referred to in the
foregoing clauses (i) through (iv).
(b) Seller
shall be entitled to indemnification pursuant to Section
10.3(a)
only for
those Damages arising with respect to any claim as to which Seller have given
Buyer written notice within the appropriate time period set forth in
Section
10.1
hereof
for such claim.
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 or parties hereto from which indemnification
is claimed (the “Indemnifying
Party”)
of any
claim, specifying in reasonable detail the factual basis for the claim, the
amount thereof, estimated in good faith, all with reasonable particularity
and
containing a reference to the provisions of this Agreement in respect of which
such indemnification claim shall have occurred. If the claim relates to an
action, suit or proceeding filed by another Person against Claimant, such notice
shall be given by Claimant within ten (10) Business Days after written notice
of
such action, suit or proceeding was given to Claimant.
(b) With
respect to claims solely between the parties, following receipt of notice from
the Claimant of a claim, the Indemnifying Party shall have thirty (30) days
to
make such investigation of the claim as the Indemnifying Party deems necessary
or desirable, and the Claimant agrees to make available to the Indemnifying
Party and 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 (30)-day period to the
validity and amount of such claim, the Indemnifying Party shall immediately
pay
to the Claimant the full amount of the claim, subject to the terms hereof.
If
the Claimant and the Indemnifying Party do not agree within the thirty (30)-day
period, the Claimant may seek appropriate remedy at law or equity, as
applicable, subject to the limitations hereof.
24
(c) With
respect to any claim by any other Person against the Claimant (a “Third
Party Claim”),
the
Indemnifying Party shall have the right at its own expense, to participate
in or
assume control of the defense of such claim, and the Claimant shall cooperate
fully with the Indemnifying Party, subject to reimbursement for actual
out-of-pocket expenses incurred by the Claimant as the result of a request
by
the Indemnifying Party. If the Indemnifying Party elects to assume control
of
the defense of any Third Party Claim, the Claimant shall have the right to
participate in the defense of such claim at its own expense. If the Indemnifying
Party does not elect to assume control or otherwise participate in the defense
of any Third Party Claim, then the Claimant may defend through counsel of its
own choosing and (so long as it gives the Indemnifying Party at least ten (10)
Business Days notice of the terms of the proposed settlement thereof and permits
the Indemnifying Party to then undertake the defense thereof) settle such claim,
action or suit and to recover from the Indemnifying Party the amount of such
settlement or of any judgment and the costs and expenses of such defense. The
Indemnifying Party shall not compromise or settle any Third Party Claim without
the prior written consent of the Claimant, which consent will not be
unreasonably withheld or delayed.
(d) If
a
claim, whether between the parties or by any other Person, requires immediate
action, the parties will make every effort to reach a decision with respect
thereto as expeditiously as possible.
(e) Subject
to the limitations set forth herein and without expanding the total liability
of
Buyer or Seller hereunder, the indemnification rights provided in this
Section
10
shall
extend to the Related Parties although for the purpose of the procedures set
forth in this Section
10.4,
any
indemnification claims by such Related Parties shall be made by and through
the
Claimant.
SECTION
11 - MISCELLANEOUS
11.1 Fees
and Expenses.
Except
as otherwise provided in this Agreement, each party hereto shall pay its own
expenses incurred in connection with the authorization, preparation, execution
and performance of this Agreement, including, without limitation, all fees
and
expenses of counsel, accountants, agents and representatives.
11.2 Notices.
All
notices, demands and requests required or permitted to be given under the
provisions of this Agreement shall be (i) in writing, (ii) delivered by personal
delivery or sent by commercial delivery service or certified mail, return
receipt requested, (iii) deemed to have been given 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:
(a) If
to
Seller:
EBC Southwest Florida, Inc.
#0
Xxxxxxxxxxx Xx., Xxxxx 000
Xxxxxx Xxxx, XX
Attention: Xxxx Xxxx, President
25
(b) If
to
Buyer:
Xxxxx Communications, LLC
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
11.2.
11.3 Benefit
and Binding Effect.
No
party hereto may assign this Agreement without the prior written consent of
the
other party hereto. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, heirs and
permitted assigns.
11.4 Further
Assurances.
Subject
to the terms and conditions of this Agreement, from time to time prior to,
at
and after the Closing Date, each party hereto will use commercially reasonable
efforts to take, or cause to be taken, all such actions and to do or cause
to be
done, all things necessary, proper or advisable under Applicable Law to
consummate and make effective the transactions contemplated by this
Agreement.
11.5 Governing
Law; Venue.
This
Agreement and the rights and obligations of the parties hereunder shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York without regard to its conflict of law rules.
11.6 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 hereto entitled to the benefits
thereof only by a written instrument signed by the party or parties granting
such waiver, but such waiver 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
11.6.
26
11.7 Severability.
If any
provision of this Agreement shall be invalid or unenforceable to any extent,
the
remainder of this Agreement and the application of such provision to other
Persons or circumstances shall not be affected thereby and shall be enforced
to
the greatest extent permitted by Applicable Law so long as the economic or
legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid or unenforceable, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of
the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the greatest extent
possible.
11.8 Specific
Performance.
The
parties recognize and agree that the Assets are unique and that if, prior to
Closing, Seller breaches this Agreement and refuses to perform under the
provisions hereof, Buyer would be damaged irreparably and the award of monetary
damages alone would not be adequate to compensate Buyer for its injury. Buyer
shall therefore be entitled to obtain specific performance of the terms of
this
Agreement, and to injunctive or other equitable relief as remedies or any such
breach or failure to perform. If any action for specific performance is brought
by Buyer to enforce this Agreement, Seller shall waive the defense that there
is
adequate remedy at law.
11.9 Entire
Agreement.
This
Agreement, the Schedules and Exhibits 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 of this Agreement. This Agreement supersedes
all
prior negotiations between the parties and cannot be amended, supplemented
or
changed except by an agreement in writing that is signed by the parties
hereto.
11.10 Counterparts.
This
Agreement maybe executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
document. Each party hereto agrees that the delivery of the Agreement by
facsimile or other electronic transmission will be deemed to be an original
of
the Agreement so transmitted.
11.11 Knowledge.
Buyer
or Seller, as applicable, will be deemed to have “knowledge” of a particular
matter, and the particular matter will be deemed to be “known” by Buyer or
Seller, as applicable, if any director, manager or officer of Buyer or Seller,
as applicable, or any Affiliate of Buyer or Seller, as applicable, providing
services to or for the benefit of the Assets, has actual knowledge of such
matter or would reasonably be expected to have knowledge of such matter
following reasonable inquiry of the appropriate employees and agents of Buyer
or
Seller, as applicable.
11.12 Interpretation
The
language used in this Agreement shall be deemed to be the language chosen by
the
parties to express their mutual intent. In the event that an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties, and no presumption or burden of proof
shall arise favoring or disfavoring any person or entity by virtue of the
authorship of any of the provisions of this Agreement.
[The
Remainder Of This Page Is Intentionally Left Blank]
27
IN
WITNESS WHEREOF,
this
Asset Purchase Agreement has been executed by the duly authorized officers
of
Buyer and Seller.
XXXXX
COMMUNICATIONS, LLC
|
EBC
SOUTHWEST FLORIDA, INC.
|
|
By:
Xxxxx X. Xxxxx
|
By:
Xxxxxxx Xxxx
|
|
Name:
Xxxxx X. Xxxxx
|
Name:
Xxxxxxx Xxxx
|
|
Title:
Member
|
Title:
President
|
For
the
limited purpose of his obligations under Section 4.8
/s/
Xxxxx X. Xxxxx
|
By:
Xxxxx X. Xxxxx
|
[Signature
page to Asset Purchase Agreement]
28
EXHIBIT
A
DEFINED
TERMS
Accounts
Receivable means
the
rights of Seller as of the Closing Date to payment for the sale of advertising
time and other goods and services by the Stations prior to the Effective
Time.
Adjustment
Report has
the
meaning ascribed thereto in Section
2.6(c).
Adjustment
Settlement Date
has the
meaning ascribed thereto in Section
2.6(e).
Affiliate
means,
with respect to any Person, any other Person that, directly or indirectly
through one or more intermediaries, Controls, is Controlled by or is under
common Control with such Person.
Agreement
has
the
meaning ascribed thereto in the preamble.
Allocation
has
the
meaning ascribed thereto in Section
2.7.
Applicable
Environmental Laws means
any
and all laws, statutes, regulations and judicial interpretations thereof of
the
United States, of any state in which the Assets, or any portion thereof, or
the
Stations are located, and of any other government or quasi-government authority
having jurisdiction, that relate to the prevention, abatement and elimination
of
pollution and/or protection of the environment, including the federal
Comprehensive Environmental Response, Compensation, and Liability Act, the
Resource Conservation and Recovery Act, the Clean Water Act, the Clean Air
Act,
the Safe Drinking Water Act, the Toxic Substances Control Act and the Hazardous
Materials Transportation Act, together with all state statutes serving any
similar or related purposes, as in effect on or prior to the date of this
Agreement.
Applicable
Law
means
any applicable constitution, treaty, statute, rule, regulation, ordinance,
order, directive, code, interpretation, judgment, decree, injunction, writ,
determination, award, permit, license, authorization, directive, requirement,
ruling or decision of, agreement with, or by a Governmental
Authority.
Assets
has
the
meaning ascribed thereto in Section
2.1.
Assignment
and Acceptance Agreement has
the
meaning ascribed thereto in Section
8.3(a)(ii).
Assignment
and Assumption Agreement
has the
meaning ascribed thereto in Section
8.3(a)(i).
Assignment
Application means
the
application to be filed with the FCC in order to obtain the consent of the
FCC
to the assignment of the FCC Licenses from Seller to Buyer.
Assumed
Contracts means
(i)
all Contracts listed on Schedule
3.7 and (ii)
any
Contracts entered into by Seller between the date of this Agreement and the
Closing Date that Buyer agrees in writing to assume; provided,
however,
that
Assumed Contracts shall in no event include Excluded Contracts and, provided,
further,
that the
Assumed Contracts shall in no event include any Employee Contract.
29
Assumed
Liabilities has
the
meaning ascribed thereto in Section
2.3(a).
Xxxx
of Sale
has the
meaning ascribed thereto in Section
8.3(a)(iv)
hereof.
Business
Day means
any
day excluding Saturdays, Sundays and any day that is a legal holiday under
the
laws of the United States or is a day on which federal banking institutions
located in or around Ft. Xxxxx, Florida are authorized or required by law or
other governmental action to close.
Buyer
has
the
meaning ascribed thereto in the Preamble.
Buyer
Employee
has the
meaning ascribed thereto in Section
5.8.
Claimant
has
the
meaning ascribed thereto in Section
10.4(a).
Closing
means
the
consummation of the purchase and sale of the Assets pursuant to this Agreement
in accordance with the provisions of Section
8.
Closing
Adjustment Amount has
the
meaning ascribed thereto in Section
2.6(b).
Closing
Adjustment Statement has
the
meaning ascribed thereto in Section
2.6(b).
Closing
Date has
the
meaning ascribed thereto in Section
8.1.
Code
means
the
Internal Revenue Code of 1986, as amended.
Communications
Act
means
the Communications Act of 1934, as amended, and the rules, regulations, and
policies of the FCC promulgated thereunder.
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, without limitation, any amendments
and
other modifications thereto).
Control
means
having the power to direct the affairs of a Person by reason of either (i)
owning or controlling the right to vote a sufficient number of shares of voting
stock or other voting interest of such Person or (ii) having the right to direct
the general management of the affairs of such Person by contract or
otherwise.
Damages
means
all
claims, demands, actions, causes of action, assessments, losses, investigations,
proceedings, damages, penalties, fines, costs, payments, expenses and judgments,
including, without limitation, interest and penalties and reasonable attorneys'
fees, disbursements and expenses. Notwithstanding any provision of this
Agreement to the contrary, Damages shall not include, and neither party shall
be
liable hereunder for, any incidental or consequential damages, or loss of
profits or opportunities, or any exemplary or punitive damages, regardless
of
the circumstances from which such damages arose.
Effective
Time
means
12:01 a.m., Little Rock, Arkansas time, on the Closing Date.
Employee
Contracts
has the
meaning ascribed thereto in Section
3.12.
30
Employee
Plan
means
any retirement, severance, medical, disability, life insurance or any other
employee benefit plan as defined in Section 3(3) of ERISA to which either of
the
Seller or any entity related to Seller (under the terms of Sections 414(b)
or
(c) of the Code) contributes or which Seller or any entity related to Seller
(under the terms of Sections 414(b) or (c) of the Code) sponsors or
maintains.
Employees
has the
meaning ascribed thereto in Section
3.12.
Environmental
Consultant
has the
meaning ascribed thereto in
Section 6.8(a).
ERISA
means
the Employee Retirement Income Security Act of 1974, as amended.
Excluded
Assets shall
have the meaning ascribed thereto in Section
2.2.
Excluded
Contracts shall
have the meaning ascribed thereto in Section
2.2(d).
FCC
shall
have the meaning ascribed thereto in the Preliminary Statement.
FCC
Consent means
action by the FCC granting its consent to the Assignment Application and the
consummation of the transactions contemplated thereby.
FCC
Licenses means
(i)
all licenses, permits, construction permits and other authorizations issued
by
or pending before the FCC necessary or useful for the business or operation
of
the Stations or the conduct of the Stations (including, without limitation,
the
rights in and to the Stations’ call signs), and (ii) those items listed in
Schedule
3.4.
Final
Adjustment
has the
meaning ascribed thereto in Section
2.6(d).
Final
Adjustment Amount has
the
meaning ascribed thereto in Section
2.6(e).
Final
Adjustment Statement has
the
meaning ascribed thereto in Section
2.6(e).
Final
Order means
an
action by the FCC or other regulatory authority having jurisdiction (i) with
respect to which action no timely request for stay, motion or petition for
reconsideration or rehearing, application or request for review or notice of
appeal or other judicial petition for review is pending and (ii) as to which
the
time for filing any such request, motion, petition, application, appeal or
notice and for the entry of orders staying, reconsidering or reviewing on the
FCC's or such other regulatory authority's own motion has expired.
Financial
Statements has
the
meaning ascribed thereto in Section
3.9.
Governmental
Authority means
any
government, any governmental entity, department, commission, board, agency
or
instrumentality and any court, tribunal or judicial or arbitral body, whether
federal, state or local.
Hazardous
Substance
means
petroleum, petroleum hydrocarbons or petroleum products, petroleum by-products,
radioactive materials, asbestos or asbestos-containing materials, gasoline,
diesel fuel, pesticides, lead or lead-containing materials, polychlorinated
biphenyls, and any other chemicals, materials, substances, or wastes which
are
defined as or included in the definitions of “hazardous substances,” “hazardous
materials,” “hazardous wastes,” or words of similar import under Applicable
Environmental Laws.
31
Holdings
has the
meaning ascribed thereto in the Preamble.
Indemnifying
Party
has the
meaning ascribed thereto in Section
10.4(a).
Independent
Auditor
has the
meaning ascribed thereto in Section
2.6(d).
Intangibles
means
(i)
all copyrights (including registrations and any applications for registration),
trademarks, trade names, service marks, service names, franchises, licenses,
software, computer programs and computer license interests, patents, permits,
jingles, logos, proprietary information, technical information and data and
other similar intangible property rights and interests applied for, issued
to or
owned by Seller or under which Seller is licensed or franchised and that are
used or useful in the business or operation of the Stations, and (ii) those
items listed on Schedule
3.8.
Internet
Websites means
all
domain leases, URLs and domain names of the Station, the right to use those
domain names in accordance with Applicable Law, the content located and publicly
accessible from those domain names that is not proprietary to Seller.
Licensee
has the
meaning ascribed thereto in the Preamble.
Lien
means,
with respect to any asset, any mortgage, lien, pledge, charge, security
interest, restriction or encumbrance of any kind, whether statutory or
otherwise, in respect of such asset.
Material
Adverse Effect means
an
adverse effect that is material to business or operation of the Stations and
the
Assets, taken as a whole, financially or otherwise.
Seller
has the
meaning ascribed thereto in the Preamble.
Permitted
Liens
means
(i) liens for Taxes not yet due and payable; (ii) liens for property Taxes
not
delinquent; and (iii) any Liens disclosed in Schedule
3.5
or
3.6.
Person
means an
individual, corporation, association, partnership, joint venture, trust, estate,
limited liability company, limited liability partnership or other entity or
organization.
Preliminary
Adjustment Statement
has the
meaning ascribed thereto in Section
2.6(a).
Purchase
Price has
the
meaning ascribed thereto in Section
2.4.
Real
Property
means
(i) all real property (owned or leased) and all improvements, fixtures and
fittings (such as towers and antennae) thereon used or useful in the business
and operation of the Stations, and (ii) the real property listed on Schedule
3.5.
Related
Party
has the
meaning ascribed thereto in Section
9.2(b)(i).
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Required
Consents
means
consents, approvals, waivers, clearances and estoppels, if applicable, to those
certain Assumed Contracts that may require consent to assign to Buyer or its
designee and such other consents, approvals, waivers, or clearances from
Governmental Authorities or third parties.
Retained
Liabilities
has the
meaning ascribed thereto in Section
2.3(b).
Seller
has the
meaning ascribed thereto in the Preamble.
Seller
Fundamental Representations
shall
mean Sections
3.1,
3.2,
3.3,
3.4,
3.10,
3.16
and
3.19.
Stations
has the
meaning ascribed thereto in the Preliminary Statement.
Tangible
Personal Property
means
(i) all machinery, equipment, computers, tools, vehicles, fixtures, furniture,
office equipment, inventory, spare parts, products, customer lists relating
to
the Stations, proprietary information, technical information, data, maps,
computer discs and tapes, plans, diagrams, blueprints and schematics and other
tangible personal property that is used or useful in the business or operation
of the Stations, and (ii) those items listed on Schedule
3.6.
Tax
means
any federal, state, local or foreign income, gross receipts, windfall profits,
severance, property, production, sales, use, license, excise, franchise,
capital, transfer, employment, withholding or other tax or governmental
assessment, together with any interest, additions or penalties with respect
thereto and any interest in respect of such additions or penalties.
Tax
Return
means
any tax return, declaration of estimated tax, tax report or other tax statement
or any other similar filing required to be submitted by Seller relating to
the
Stations to any governmental authority with respect to any Tax.
Termination
Date means
the
date on which a termination of this Agreement pursuant to the terms and subject
to the conditions of this Agreement shall be effective.
Third
Party Claim
has the
meaning ascribed thereto in Section
10.4(c).
Transfer
Taxes has
the
meaning ascribed thereto in Section
2.8.
WARN
Act
means
the Worker Adjustment and Retraining Notification Act.
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