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EXHIBIT 10.210
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ASSET PURCHASE AGREEMENT
BY AND BETWEEN
D P MEDIA OF BOSTON, INC.
AND
BOSTON UNIVERSITY COMMUNICATIONS, INC.
FOR
TELEVISION STATIONS
WABU(TV), BOSTON, MA,
WZBU(TV), VINEYARD HAVEN, MA,
WNBU(TV), CONCORD, NH,
AND
LOW POWER TELEVISION STATION
W67BA(TV), DENNIS, MA
* * *
APRIL 30, 1999
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS....................................................................................1
SECTION 2. PURCHASE AND SALE OF ASSETS....................................................................4
2.1 Agreement to Sell and Buy......................................................................4
2.2 Excluded Assets................................................................................5
2.3 Purchase Price.................................................................................6
2.4 Payment of Purchase Price......................................................................7
2.5 Assumption of Liabilities and Obligations......................................................7
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER.......................................................8
3.1 Organization, Standing, and Authority..........................................................8
3.2 Authorization and Binding Obligation...........................................................8
3.3 Absence of Conflicting Agreements..............................................................9
3.4 Governmental Licenses..........................................................................9
3.5 Title to and Condition of Real Property........................................................9
3.6 Title to and Condition of Tangible Personal Property..........................................10
3.7 Contracts.....................................................................................11
3.8 Consents......................................................................................11
3.9 Intangibles...................................................................................11
3.10 Financial Statements..........................................................................11
3.11 Insurance.....................................................................................12
3.12 Reports.......................................................................................12
3.13 Personnel.....................................................................................12
3.14 Taxes.........................................................................................14
3.15 Claims and Legal Actions......................................................................14
3.16 Environmental Matters.........................................................................15
3.17 Compliance with Laws..........................................................................16
3.18 Conduct of Business in Ordinary Course........................................................16
3.19 Transactions with Affiliates..................................................................17
3.20 Broker........................................................................................17
3.21 Full Disclosure...............................................................................17
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER.......................................................17
4.1 Organization, Standing, and Authority.........................................................17
4.2 Authorization and Binding Obligation..........................................................17
4.3 Absence of Conflicting Agreements.............................................................18
4.4 Broker........................................................................................18
4.5 Full Disclosure...............................................................................18
4.6 Consents......................................................................................18
4.7 Claims and Legal Actions......................................................................18
SECTION 5. OPERATIONS OF THE STATIONS PRIOR TO CLOSING...................................................19
5.1 Generally.....................................................................................19
5.2 Compensation..................................................................................19
5.3 Contracts.....................................................................................19
5.4 Disposition of Assets.........................................................................19
5.5 Encumbrances..................................................................................19
5.6 Licenses......................................................................................20
5.7 Rights........................................................................................20
5.8 Access to Information.........................................................................20
5.9 Maintenance of Assets.........................................................................20
5.10 Insurance.....................................................................................20
5.11 Consents......................................................................................20
5.12 Books and Records.............................................................................21
5.13 Notification..................................................................................21
5.14 Financial Information.........................................................................21
5.15 Compliance with Laws..........................................................................21
5.16 Financing Leases..............................................................................21
5.17 Programming...................................................................................21
5.18 Preservation of Business......................................................................21
5.19 Trade Agreements..............................................................................21
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS..............................................................22
6.1 FCC Consent...................................................................................22
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PAGE
6.2 Control of the Stations.......................................................................22
6.3 Risk of Loss..................................................................................23
6.4 Confidentiality...............................................................................23
6.5 Environmental Audit...........................................................................23
6.6 Engineering Study.............................................................................23
6.7 Cooperation...................................................................................24
6.8 Bulk Sales Law................................................................................24
6.9 Sales Tax Filings.............................................................................24
6.10 Access to Books and Records...................................................................24
6.11 Appraisal.....................................................................................24
6.12 Noncompetition Agreement......................................................................24
6.13 HSR Act Filing................................................................................24
6.14 Call Sign Change..............................................................................25
6.15 No Inconsistent Action........................................................................25
6.16 Studio Facilities.............................................................................25
6.17 Notices of Breach.............................................................................26
6.18 University Matters............................................................................26
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT CLOSING......................................26
7.1 Conditions to Obligations of Buyer............................................................26
7.2 Conditions to Obligations of Seller...........................................................27
SECTION 8. CLOSING AND CLOSING DELIVERIES................................................................28
8.1 Closing.......................................................................................28
8.2 Deliveries by Seller..........................................................................29
8.3 Deliveries by Buyer...........................................................................29
SECTION 9. TERMINATION...................................................................................30
9.1 Termination by Seller.........................................................................30
9.2 Termination by Buyer..........................................................................30
9.3 Rights on Termination.........................................................................31
9.4 Escrow Deposit................................................................................31
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PAGE
9.5 Disposition of WBPX(TV).......................................................................32
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; CERTAIN REMEDIES.................34
10.1 Representations and Warranties................................................................34
10.2 Indemnification by Seller.....................................................................34
10.3 Indemnification by Buyer and Its Subsidiary...................................................34
10.4 Procedure for Indemnification.................................................................35
10.5 Limitations...................................................................................36
10.6 Specific Performance..........................................................................36
10.7 Attorneys' Fees...............................................................................37
SECTION 11. MISCELLANEOUS.................................................................................37
11.1 Fees and Expenses.............................................................................37
11.2 Notices.......................................................................................37
11.3 Benefit and Binding Effect....................................................................38
11.4 Further Assurances............................................................................38
11.5 Governing Law.................................................................................38
11.6 Headings......................................................................................38
11.7 Gender and Number.............................................................................38
11.8 Entire Agreement..............................................................................38
11.9 Waiver of Compliance; Consents................................................................39
11.10 Press Release.................................................................................39
11.11 Consent to Jurisdiction.......................................................................39
11.12 Counterparts..................................................................................40
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LIST OF SCHEDULES
Schedule 2.2 -- Certain Excluded Assets
Schedule 3.3 -- Consents
Schedule 3.4 -- Licenses
Schedule 3.5 -- Real Property
Schedule 3.6 -- Tangible Personal Property
Schedule 3.7 -- Contracts
Schedule 3.9 -- Intangibles
Schedule 3.10 -- Financial Statements
Schedule 3.11 -- Insurance Policies
Schedule 3.13 -- Employee Matters
Schedule 3.16 -- Environmental Matters
Schedule 6.12 -- Form of Noncompetition Agreement
Schedule 8.2(a) -- Form of Xxxx of Sale
Schedule 8.2(b) -- Form of Estoppel Certificate
Schedule 8.2(f)(A) -- Form of Corporate Opinion of Seller's Counsel
Schedule 8.2(f)(B) -- Form of FCC Opinion of Seller's Counsel
Schedule 8.3(b) -- Forms of Assignment and Assumption Agreement
Schedule 8.3(d) -- Form of Opinion of Buyer's Counsel
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is dated as of the 30th day of April,
1999, by and between D P Media of Boston, Inc., a Florida corporation ("Buyer"),
and Boston University Communications, Inc., a Massachusetts corporation
("Seller").
R E C I T A L S
A. Seller is the licensee of and owns and operates television
stations WABU(TV), Channel 00, Xxxxxx, Xxxxxxxxxxxxx ("XXXX"); WZBU(TV), Channel
58, Vineyard Haven, Massachusetts ("WZBU"); WNBU(TV), Channel 00, Xxxxxxx, Xxx
Xxxxxxxxx ("XXXX"); and low power television station W67BA(TV), Channel 67,
Dennis, Massachusetts (individually, a "Station" and collectively, the
"Stations") pursuant to licenses issued by the Federal Communications Commission
("FCC").
B. Contemporaneously with the execution and delivery of this
Asset Purchase Agreement, Buyer and Seller have entered into the Time Brokerage
Agreement, pursuant to which Buyer agrees to provide programming for broadcast
on the Stations effective as of the Commencement Date, as defined in the Time
Brokerage Agreement (the "TBA Effective Date").
C. Seller desires to sell, and Buyer desires to buy,
substantially all the assets that are used or useful in the business or
operations of the Stations, for the price and on the terms and conditions set
forth in this Agreement.
A G R E E M E N T S
In consideration of the above recitals and of the mutual agreements and
covenants contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Buyer and Seller, intending to be bound legally, agree as follows:
SECTION 1. DEFINITIONS
The following terms, as used in this Agreement, shall have the meanings
set forth in this Section:
"Accounts Receivable" means all rights of Seller to payment arising
from or relating to the operations of the Stations, including rights to payment
for the sale of commercial announcements broadcast on the Stations.
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Buyer under this Agreement, as defined in Section 2.1.
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"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7 that
are specifically designated on Schedule 3.7 as Contracts that are to be assumed
by Buyer upon its purchase of the Stations, (ii) any Contracts entered into by
Seller between the date of this Agreement and the Closing Date that Buyer agrees
to assume pursuant to Section 5.3, and (iii) any Contracts entered into by
Seller in the ordinary course of business during the period from the date hereof
until the day prior to the TBA Effective Date which do not involve liabilities
or obligations in excess of $5,000 individually or $50,000 in the aggregate.
"Assumed Liabilities" has the meaning set forth in Section 2.5 hereof.
"Buyer's Accounts" means all Accounts Receivable which arise or accrue
on or after the TBA Effective Date other than the Studio Lease Receivables.
"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 Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to Buyer or
otherwise to consummate the transactions contemplated by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses, and
other agreements (including leases for personal or real property and employment
agreements), written or oral (including any amendments and other modifications
thereto) to which Seller is a party or which are binding upon Seller and which
relate to or affect the Assets or the business or operations of one or more
Stations, and (i) which are in effect on the date of this Agreement or (ii)
which are entered into by Seller between the date of this Agreement and the
Closing Date.
"Escrow Agent" means First Union National Bank of Florida.
"Escrow Agreement" means the Escrow Agreement dated as of the date
hereof among Buyer, Seller and the Escrow Agent.
"Excluded Assets" has the meaning set forth in Section 2.2 hereof.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the
assignment of the FCC Licenses to Buyer as contemplated by this Agreement.
"FCC Licenses" means all Licenses issued by the FCC to Seller in
connection with the business or operations of each Station.
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"Final Order" means an action by the FCC that has not been reversed,
stayed, enjoined, set aside, annulled, or suspended, and with respect to which
no requests are pending for administrative or judicial review, reconsideration,
appeal, or stay, and the time for filing any such requests and the time for the
FCC to set aside the action on its own motion have expired.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and the regulations of the Federal Trade Commission
thereunder.
"Intangibles" means all copyrights, trademarks, trade names, service
marks, service names, licenses, patents, permits, jingles, proprietary
information, technical information and data, machinery and equipment warranties,
and other similar intangible property rights and interests (and any goodwill
associated with any of the foregoing) applied for, issued to, or owned by Seller
or under which Seller is licensed or franchised, to the extent transferable to
Buyer, and which are used exclusively in the business and operations of one or
more Stations, together with any additions thereto between the date of this
Agreement and the Closing Date.
"Licenses" means all licenses, permits, and other authorizations issued
by the FCC, the Federal Aviation Administration, or any other federal, state, or
local governmental authorities to Seller in connection with the conduct of the
business or operations of one or more Stations, together with any additions
thereto between the date of this Agreement and the Closing Date.
"Purchase Price" means the purchase price specified in Section 2.3.
"Real Property" means all real property and interests in real property,
including fee estates, leaseholds and subleaseholds (other than the Studio
Lease), purchase options, easements, licenses, rights to access, and rights of
way, and all buildings and other improvements thereon, and other real property
interests owned or held by Seller which are used or useful in the business or
operations of one or more Stations, together with any additions thereto between
the date of this Agreement and the Closing Date.
"Seller's Accounts" means (i) all Accounts Receivable from the
operation of the Stations which arise or accrue prior to the TBA Effective Date,
(ii) all Studio Lease Receivables, (iii) all other amounts payable to Seller in
respect of the operation of one or more Stations (other than Buyer's Accounts),
and (iv) all amounts payable to Seller pursuant to the terms of this Agreement,
the Time Brokerage Agreement or any other agreement contemplated hereby or
thereby.
"Studio Lease" means the Lease between Xxxxxxx X. Xxxxxxx, Trustee of
the Xxxx Realty Trust and Arlington Broadcast Group, Inc., dated May 22, 1985,
pursuant to which Seller leases the WABU studio and office premises on Soldiers
Field Road, Boston, Massachusetts.
"Studio Lease Receivables" means any and all amounts now or hereafter
payable to Seller in respect of the Studio Lease, whether in connection with the
termination thereof or otherwise.
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"Tangible Personal Property" means all machinery, equipment, tools,
vehicles, furniture, leasehold improvements, office equipment, plant, inventory,
spare parts, and other tangible personal property owned by Seller which are used
principally in the conduct of the business or operations of one or more
Stations, together with any additions thereto between the date of this Agreement
and the Closing Date.
"Time Brokerage Agreement" means the Time Brokerage Agreement between
Buyer and Seller, dated as of the date hereof, with respect to the Stations, as
amended from time to time.
"To Seller's knowledge," "to the knowledge of Seller," "known to
Seller" or similar phrases mean, except as otherwise expressly provided herein,
to the actual knowledge of Seller following reasonable inquiry by the officers
of Seller, the Stations' General Manager or Chief Engineer, but without any
inquiry to or investigation by any third party.
SECTION 2. PURCHASE AND SALE OF ASSETS
2.1 AGREEMENT TO SELL AND BUY. Subject to the terms and conditions
set forth in this Agreement, Seller hereby agrees to sell, transfer, and deliver
to Buyer on the Closing Date, and Buyer agrees to purchase and accept from
Seller, all of Seller's right, title and interest in, to and under the following
tangible and intangible assets, together with any additions thereto between the
date of this Agreement and the Closing Date (collectively, the "Assets"), but in
each case excluding the assets described in Section 2.2, free and clear of any
claims, liabilities, security interests, mortgages, liens, pledges, conditions,
charges, or encumbrances of any nature whatsoever (except for liens for current
taxes not yet due and payable), including the following:
(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles;
(f) All of Seller's proprietary information, technical
information and data, machinery and equipment warranties, maps, computer discs
and tapes, plans, diagrams, blueprints, and schematics, including filings with
the FCC relating to the business and operation of each Station;
(g) The Buyer's Accounts;
(h) All choses in action of Seller relating to one or
more Stations, if and to the extent such choses in action relate to the
ownership, use or condition of the Assets following the Closing; and
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(i) All books and records relating to the business or
operations of each Station, including, to the extent in Seller's possession,
executed copies of the Assumed Contracts, and all records required by the FCC to
be kept by each Station.
2.2 EXCLUDED ASSETS. Notwithstanding any provision of this
Agreement to the contrary, the Assets shall exclude the following assets
(collectively, the "Excluded Assets"):
(a) All of Seller's cash on hand as of the Closing and
all other cash, cash equivalents or investments in any of Seller's bank, savings
or investment accounts; all of Seller's insurance policies, letters of credit,
or other similar items and cash surrender value in regard thereto; and all of
Seller's stocks, bonds, certificates of deposit, money market instruments,
mutual funds and other investments;
(b) All of Seller's corporate minute books, stock
transfer books and corporate records; all duplicated records of any books,
records, accounts and information of Seller relating to Seller's operation of
the Stations prior to the Closing; copies of all records prepared by or on
behalf of Seller in connection with the sale of the Stations; all records and
documents relating to any Excluded Assets; all of Seller's "off-the-shelf"
software which by its terms is not assignable; and all of Seller's rights under
or pursuant to this Agreement or any other document or instrument contemplated
hereby;
(c) Any pension, profit-sharing, or employee benefit
plans (including all assets of such plans), and any collective bargaining
agreements relating to the Stations or their employees;
(d) All property listed on Schedule 2.2 hereto;
(e) The Studio Lease and all of Seller's rights
thereunder;
(f) All of Seller's Accounts;
(g) All Tangible Personal Property of Seller disposed of
or consumed (including in respect of ordinary wear and tear) in the ordinary
course of business and in accordance with the terms hereof between the date
hereof and the Closing Date;
(h) All Contracts that expire in accordance with their
terms prior to the Closing Date or are terminated with the prior approval of
Buyer;
(i) All logos, slogans, copyrights, trademarks and
service marks relating to Trustees of Boston University, a corporation created
by an Act of the Massachusetts Legislature (the "University"), and all contracts
and other arrangements between Seller and the University, other than the program
contract relating to the Beanpot Tournament;
(j) BUCI Productions, Inc. and all rights and other
assets thereof, including, without limitation, the programs entitled "lil'
iguana" and "Story Shop"; and
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(k) The call letters "WABU".
2.3 PURCHASE PRICE. The Purchase Price for the Assets and the
covenants of Seller set forth in the Noncompetition Agreement referred to in
Section 6.12 shall be Forty Million Dollars ($40,000,000), adjusted as provided
below:
(a) Prorations. The Purchase Price shall be increased or
decreased as required to effectuate the proration of expenses, other than those
expenses of Buyer which Buyer is obligated to pay under the Time Brokerage
Agreement and those expenses of Seller for which Buyer is obligated to reimburse
Seller under the Time Brokerage Agreement. Except as otherwise provided in the
Time Brokerage Agreement, all expenses arising from the operation of the
Stations, including business and license fees, utility charges, real and
personal property taxes and assessments levied against the Assets, property and
equipment rentals, applicable copyright or other fees, sales and service
charges, taxes (except for taxes arising from the transfer of the Assets under
this Agreement), FCC annual regulatory fees and similar prepaid and deferred
items, shall be prorated between Buyer and Seller in accordance with the
principle that Seller shall be responsible for all expenses, costs, and
liabilities allocable to the period prior to the Closing Date (subject to
reimbursement by Buyer to the extent provided in the Time Brokerage Agreement),
and Buyer shall be responsible for all expenses, costs, and obligations
allocable to the period on and after the Closing Date. Notwithstanding the
preceding sentence, there shall be no adjustment for, and Seller shall remain
solely liable with respect to, any Contracts not included in the Assumed
Contracts and any other obligation or liability not being assumed by Buyer in
accordance with Section 2.5.
(b) Manner of Determining Adjustments. Any adjustments
and prorations pursuant to Section 2.3(a) will, insofar as feasible, be
determined and paid on the Closing Date, with final settlement and payment by
the appropriate party occurring no later than ninety (90) days after the Closing
Date or such other date as the parties shall mutually agree upon. The Purchase
Price, taking into account the adjustments and prorations pursuant to Section
2.3(a) will be determined finally in accordance with the following procedures:
(i) Seller shall prepare and deliver to Buyer
not later than five (5) business days before the Closing Date a
preliminary settlement statement which shall set forth Seller's good
faith estimate of the adjustments to the Purchase Price under Section
2.3(a). The preliminary settlement statement (1) shall contain all
information reasonably necessary to determine the adjustments to the
Purchase Price under Section 2.3(a), to the extent such adjustments can
be determined or estimated as of the date of the preliminary settlement
statement, and such other information as may be reasonably requested by
Buyer, and (2) shall be certified by Sellers to be true and complete in
all material respects to the best of Seller's knowledge as of the date
thereof. Buyer and Seller shall use their good faith efforts to agree
upon the adjustments under Section 2.3(a) hereof prior to the Closing.
The Purchase Price payable at Closing under Section 2.3 shall be
increased or decreased, as applicable, based on the adjustments set
forth in the preliminary settlement statement, except that any
adjustments set forth in the preliminary settlement statement to which
Buyer objects in good faith shall be deemed
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omitted from such preliminary settlement statement and shall instead be
determined as part of the post-closing adjustments under this Section
2.3(b).
(ii) No later than forty-five (45) days after the
Closing Date, Buyer will deliver to Seller a statement setting forth
Buyer's determination of the Purchase Price as adjusted pursuant to
Section 2.3(a). If Seller disputes the amount of the Purchase Price
determined by Buyer, it shall deliver to Buyer within forty-five (45)
days after its receipt of Buyer's statement a statement setting forth
its determination of the amount of the Purchase Price (the "Seller
Statement"). If Seller notifies Buyer of its acceptance of Buyer's
statement, or if Seller fails to deliver its statement within the
45-day period specified in the preceding sentence, Buyer's
determination of the Purchase Price shall be conclusive and binding on
the parties as of the last day of the 45-day period.
(iii) Buyer and Seller shall use good faith
efforts to resolve any dispute involving the determination of the
Purchase Price. If the parties are unable to resolve the dispute within
fifteen (15) days following the delivery of Seller's Statement, Buyer
and Seller shall jointly designate an independent certified public
accountant, who shall be knowledgeable and experienced in accounting
for television broadcasting stations within forty-five (45) days
following delivery of Seller's Statement, to resolve the dispute. If
Seller and Buyer fail to agree to the appointment of such certified
public accountant within said forty-five (45) day period, either party
may submit to the American Arbitration Association for the appointment
of such accountant under the commercial arbitration rules of the
American Arbitration Association. The accountant's resolution of the
dispute shall be final and binding on the parties, and a judgment may
be entered thereon in any court of competent jurisdiction. Any fees of
such accountant shall be split equally between the parties.
(iv) If the Purchase Price as finally determined
pursuant to this Section 2.3(b) exceeds the Purchase Price paid by
Buyer on the Closing Date (the "Estimated Purchase Price"), Buyer shall
pay to Seller, in immediately available funds within five days after
the date on which the Purchase Price is finally determined pursuant to
this Section 2.3(b), the difference between the Purchase Price and the
Estimated Purchase Price. If the Purchase Price as finally determined
pursuant to this Section 2.3(b) is less than the Estimated Purchase
Price, Seller shall pay to Buyer, in immediately available funds within
five days after the date on which the Purchase Price is finally
determined pursuant to this Section 2.3(b), the difference between the
Purchase Price and the Estimated Purchase Price.
2.4 PAYMENT OF PURCHASE PRICE. The Purchase Price, as adjusted,
shall be paid by Buyer to Seller at Closing by wire transfer of same-day funds
pursuant to wire instructions which shall be delivered by Seller to Buyer, at
least two (2) days prior to the Closing Date.
2.5 ASSUMPTION OF LIABILITIES AND OBLIGATIONS. As of the Closing
Date, Buyer shall assume and undertake to pay, discharge, and perform all
obligations and liabilities of Seller under the Licenses and the Assumed
Contracts insofar as they relate to the time on or after the
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Closing Date, and arise out of events related to Buyer's ownership of the Assets
or its operation of the Stations on or after the Closing Date (collectively, the
"Assumed Liabilities"); provided, however, that the total amount of obligations
and liabilities under the programming agreements listed in Schedule 3.7 (as in
effect on the date hereof), whether in cash, barter or otherwise, that Buyer is
required to assume at Closing shall in no event exceed Nine Million Dollars
($9,000,000) in the aggregate for all such programming agreements. Buyer shall
not assume any other obligations or liabilities of Seller, including (i) any
obligations or liabilities under any Contract not included in the Assumed
Contracts or relating to any Excluded Asset, (ii) any obligations or liabilities
under the Assumed Contracts relating to the period prior to the Closing Date,
(iii) any claims or pending litigation or proceedings relating to the operation
of any Station prior to the Closing, (iv) any obligations or liabilities arising
under capitalized leases or other financing agreements, (v) any obligations or
liabilities arising under agreements (other than any Assumed Contracts) entered
into other than in the ordinary course of business, (vi) any obligations or
liabilities of Seller under any employee pension, retirement, health and welfare
or other benefit plans or collective bargaining agreements, (vii) any obligation
to any employee of the Stations for severance benefits, vacation time, or sick
leave accrued prior to the Closing Date, or (viii) any obligations or
liabilities caused by, arising out of, or resulting from any action or omission
of Seller prior to the Closing, and all such obligations and liabilities shall
remain and be the obligations and liabilities solely of Seller.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 ORGANIZATION, STANDING, AND AUTHORITY. Seller is a corporation
duly organized, validly existing, and in good standing under the laws of The
Commonwealth of Massachusetts and is duly qualified to conduct business as a
foreign corporation in the State of New Hampshire. Seller has all requisite
power and authority (i) to own, lease, and use the Assets as now owned, leased,
and used, (ii) to conduct the business and operations of the Stations as now
conducted, and (iii) to execute and deliver this Agreement, the Escrow Agreement
and the documents contemplated hereby and thereby, and to perform and comply
with all of the terms, covenants, and conditions to be performed and complied
with by Seller hereunder and thereunder. Seller is not a participant in any
joint venture or partnership with any other person or entity with respect to any
part of the operations of any Station or any of the Assets.
3.2 AUTHORIZATION AND BINDING OBLIGATION. The execution, delivery,
and performance of this Agreement and the Escrow Agreement by Seller have been
duly authorized by all necessary actions on the part of Seller and, to the
extent required, its sole shareholder. This Agreement and the Escrow Agreement
have been duly executed and delivered by Seller and constitute the legal, valid,
and binding obligations of Seller, enforceable against it in accordance with
their respective terms except as the enforceability of this Agreement and the
Escrow Agreement may be affected by bankruptcy, insolvency, or similar laws
affecting creditors' rights generally, and by judicial discretion in the
enforcement of equitable remedies.
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3.3 ABSENCE OF CONFLICTING AGREEMENTS. Subject to obtaining the
Consents listed on Schedule 3.3 and the expiration or termination of the waiting
period under the HSR Act, the execution, delivery, and performance of this
Agreement and the Escrow Agreement and the documents contemplated hereby and
thereby (with or without the giving of notice, the lapse of time, or both): (i)
do not require the consent of any third party; (ii) will not conflict with any
provision of the Articles of Organization or Bylaws of Seller; (iii) will not
conflict with, result in a breach of, or constitute a default under, any law,
judgment, order, ordinance, injunction, decree, rule, regulation, or ruling of
any court or governmental instrumentality; (iv) will not conflict with,
constitute grounds for termination of, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license, or permit to which
Seller is a party or by which Seller may be bound; and (v) will not create any
claim, liability, mortgage, lien, pledge, condition, charge, or encumbrance of
any nature whatsoever upon any of the Assets.
3.4 GOVERNMENTAL LICENSES. Schedule 3.4 includes a true and
complete list of the Licenses. Seller has delivered to Buyer true and complete
copies of the Licenses (including any amendments and other modifications
thereto). The Licenses have been validly issued, and Seller is the authorized
legal holder thereof. The Licenses listed on Schedule 3.4 comprise all of the
licenses, permits, and other authorizations required from any governmental or
regulatory authority for the lawful conduct of the business and operations of
each Station in the manner and to the full extent they are now conducted, and
none of the Licenses is subject to any restriction or condition not set forth on
the face thereof that would limit the full operation of any Station as now
operated, other than conditions or restrictions generally applicable to
television broadcasting stations or generally applicable to television
broadcasting stations in the Boston market. The Licenses are in full force and
effect, and the conduct of the business and operations of each Station is in
accordance therewith. Seller has no reason to believe that any of the Licenses
would not be renewed by the FCC or other granting authority in the ordinary
course. Schedule 3.4 includes an accurate and complete list of all cable systems
for which Seller made a must-carry election for the current must-carry election
period and on which one of the Stations is currently carried. Schedule 3.4 also
includes a list of those cable systems in the Boston, Massachusetts market on
which none of the Stations is currently carried. All agreements with cable
systems regarding carriage of the Stations' signals and copyright
indemnification are set forth in Schedule 3.7.
3.5 TITLE TO AND CONDITION OF REAL PROPERTY. Set forth on Schedule
3.5 is a list of all Real Property as to which Seller is a party to a real
property lease, license or other Contract in connection with the operation of
one or more Stations, other than the Studio Lease (collectively, "Leased
Properties"), together with a brief description thereof (each, a "Real Estate
Lease"). Seller has provided to Buyer a correct and complete copy of the Studio
Lease. Schedule 3.5 includes a complete copy of each Real Estate Lease and any
amendments, renewals or assignments thereof. Each Real Estate Lease is in full
force and effect and is valid, binding and enforceable in accordance with its
terms, except as such enforceability may be affected by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and by judicial discretion
in the enforcement of equitable remedies. There is not under any Real Estate
Lease any material default by Seller thereunder and, to Seller's knowledge, any
material default
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thereunder by any other party thereto. No event has occurred and is continuing
which, with due notice or lapse of time or both, would constitute a material
default or event of default by Seller under any Real Estate Lease. Seller's
possession of the Leased Properties has not been disturbed and no claim has been
asserted against Seller adverse to Seller's interests in the Leased Properties.
Except as set forth in Schedule 3.5, to Seller's knowledge, each structure
located on each Leased Property has been adequately maintained and is in good
condition and repair consistent with the uses to which it is presently being
put. Except as set forth on Schedule 3.5, Seller's use of the Leased Properties,
and, to Seller's knowledge, all structures, improvements and fixtures on the
Leased Properties and the current use of the Leased Properties by other parties,
conforms in all material respects, to any and all applicable federal, state and
local laws, reclamation laws, zoning, land use, subdivision, wetlands, building,
health and safety and other ordinances, laws, rules and regulations. Except as
set forth on Schedule 3.5, no notice from any governmental body or other person
has been served upon, or received by, Seller and, to Seller's knowledge, no such
notice has been served upon or received by any other party that owns or occupies
the Leased Properties, claiming any violation of any such ordinance, law, rule
or regulation, or requiring any substantial work, repairs, reclamation,
construction, alterations or installation on or in connection with any Leased
Property or any structure, improvement or fixture thereon which has not been
complied with in all material respects. Except as set forth on Schedule 3.5, no
notice from any governmental body or other person has been served upon or
received by Seller claiming that any right of access or other right enjoyed by
Seller as a result of its leasehold interests in the Leased Properties is being
modified or terminated in any material respect. To Seller's knowledge, there is
no violation of any covenant, restriction or other agreement or understanding,
oral or written, affecting or relating to title or use of any Leased Property.
To Seller's knowledge, there are no pending or threatened condemnation or
similar proceedings or assessments affecting any of the Leased Properties,
lawsuits by adjoining landowners or others, nor, to Seller's knowledge, is any
such proceeding contemplated by any person or governmental authority.
3.6 TITLE TO AND CONDITION OF TANGIBLE PERSONAL PROPERTY. Schedule
3.6 lists all material items of Tangible Personal Property. The Tangible
Personal Property listed on Schedule 3.6 comprises all material items of
tangible personal property necessary to conduct the business and operations of
each Station as now conducted. Except as described in Schedule 3.6, Seller owns
and has good title to each item of Tangible Personal Property, and none of the
Tangible Personal Property owned by Seller is subject to any security interest,
mortgage, pledge, conditional sales agreement, or other lien or encumbrance,
except for liens for current taxes not yet due and payable. Each item of
Tangible Personal Property is available for immediate use in the business and
operations of the Station or Stations to which such item relates. All items of
transmitting and studio equipment included in the Tangible Personal Property (i)
have been maintained in a manner consistent with generally accepted standards of
good engineering practice, and (ii) will permit each Station and any auxiliary
broadcast facilities related to such Station to operate in accordance with the
terms of the FCC Licenses and the rules and regulations of the FCC, and with all
other applicable federal, state, and local statutes, ordinances, rules, and
regulations.
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3.7 CONTRACTS. Schedule 3.7 is a true and complete list of all
Contracts, except contracts with advertisers for the sale of advertising time on
the Stations for cash at prevailing rates and which have not been prepaid and
which may be canceled by Seller without penalty on not more than thirty days'
notice. Seller has delivered to Buyer true and complete copies of all written
Contracts, true and complete memoranda of all oral Contracts (including any
amendments and other modifications to such Contracts), and a schedule
summarizing Seller's obligations under trade and barter agreements relating to
each Station. Other than the Contracts listed on Schedule 3.7 and the
advertising contracts described in the first sentence of this Section 3.7,
Seller requires no contract, lease, or other agreement to enable it to carry on
its business as now conducted. All of the Assumed Contracts are in full force
and effect, and are valid, binding, and enforceable in accordance with their
terms. There is not under any Assumed Contract any default by Seller or, to
Seller's knowledge, (i) any other party thereto or (ii) any event that, after
notice or lapse of time or both, could reasonably be expected to constitute a
default. Seller has not been notified in writing of any intention by any party
to any Assumed Contract (i) to terminate such contract or amend the terms
thereof, (ii) to refuse to renew the Assumed Contract upon expiration of its
term, or (iii) to renew the Assumed Contract upon expiration only on terms and
conditions which are more onerous than those now existing. Except for the need
to obtain the Consents listed in Schedule 3.3, Seller has full legal power and
authority to assign its rights under the Assumed Contracts to Buyer in
accordance with this Agreement, and such assignment will not affect the
validity, enforceability, or continuation of any of the Assumed Contracts.
3.8 CONSENTS. Except for the FCC Consent provided for in Section
6.1, the other Consents described in Schedule 3.3, and the expiration or
termination of the waiting period under the HSR Act, no consent, approval,
permit, or authorization of, or declaration to or filing with any governmental
or regulatory authority, or any other third party is required (i) for Seller to
consummate this Agreement and the transactions contemplated hereby, or (ii) to
permit Seller to assign or transfer the Assets to Buyer.
3.9 INTANGIBLES. Schedule 3.9 is a true and complete list of all
Intangibles (exclusive of those listed in Schedule 3.4), all of which are valid
and in good standing and uncontested. Seller has delivered to Buyer copies of
all documents establishing or evidencing all Intangibles. Seller has not
received any written assertion from any third party that Seller is infringing
upon or otherwise acting adversely to any trademarks, trade names, service
marks, service names, copyrights, patents, patent applications, know-how,
methods or processes owned by any other person or persons, and there is no claim
or action pending, or to the knowledge of Seller threatened, with respect
thereto. The Intangibles listed on Schedule 3.9 comprise all intangible property
interests necessary to conduct the business and operations of the Stations as
now conducted.
3.10 FINANCIAL STATEMENTS. Schedule 3.10 hereto contains true and
complete copies of financial statements including balance sheets, statements of
operations and a statement of cash flow for the fiscal year ending June 30, 1998
(the "FYE Statements") and for the eight-month period ending February 28, 1999
(the "Interim Statements" and, together with the FYE Statements, the "Financial
Statements"). The Financial Statements have been prepared from the
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books and records of Seller, have been prepared in accordance with generally
accepted accounting principles consistently applied (except that the Interim
Statements do not contain certain footnotes and are subject to year-end
adjustments required under GAAP), reflect the books, records, and accounts of
the Stations (which books, records, and accounts are complete and correct in all
material respects), and present fairly the financial condition of the Stations
as at their respective dates and the results of operations for the periods then
ended. None of the Financial Statements fails to disclose any material
contingent liabilities required to be reflected thereon in accordance with
generally accepted accounting principles.
3.11 INSURANCE. Schedule 3.11 is a true and complete list of all
insurance policies of Seller that insure any part of the Assets or the business
or operations of the Stations. All policies of insurance listed in Schedule 3.11
are in full force and effect. The insurance policies listed in Schedule 3.11
insure the Assets and the business and operations of the Stations in accordance
with reasonable industry standards. During the past three years, no insurance
policy of Seller on the Assets or any Station has been canceled by the insurer
and no application of Seller for insurance has been rejected by any insurer.
3.12 REPORTS. All returns, reports, and statements that each
Station is currently required to file with the FCC or with any other
governmental agency have been filed, and all reporting requirements of the FCC
and other governmental authorities having jurisdiction over Seller and any
Station have been complied with. All of such returns, reports, and statements
are substantially complete and correct as filed. Seller has timely paid to the
FCC all annual regulatory fees payable with respect to the FCC Licenses.
3.13 PERSONNEL.
(a) All of Seller's Employee Plans and Compensation
Arrangements are listed in Schedule 3.13, and complete and accurate copies of
any such written Employee Plans and Compensation Arrangements (or related
insurance policies) have been furnished to Buyer, along with copies of any
employee handbooks or similar documents describing such Employee Plans and
Compensation Arrangements. Descriptions of any unwritten Employee Plans or
Compensation Arrangements also are provided in Schedule 3.13. Schedule 3.13 also
contains a true and complete list of all employees of each Station, their job
description, date of hire, salary and amount and date of last salary increase.
(b) Each Employee Plan and Compensation Arrangement has
been administered in compliance with its own terms and in material compliance
with the provisions of ERISA, the Code, the Age Discrimination in Employment Act
and any other applicable Federal or state laws. Seller is not aware of the
existence of any governmental audit or examination of any Employee Plan or
Compensation Arrangement or of any facts which would lead it to believe that any
such audit or examination is pending or threatened. There exists no action, suit
or claim (other than routine claims for benefits) with respect to any Employee
Plan or Compensation Arrangement pending or, to the best knowledge of Seller,
threatened against any of such plans or arrangements.
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(c) Seller does not contribute to and is not required to
contribute to any Multi-employer Plan with respect to the employees of the
Stations, and neither Seller nor any other trade or business under common
control with Seller (within the meaning of Sections 414(b), (c), (m) or (o) of
the Code) has incurred or reasonably expects to incur any "withdrawal
liability," as defined under Section 4201 et seq. of ERISA.
(d) Except as described in Schedule 3.13, neither Seller
nor any other trade or business under common control with Seller (within the
meaning of Sections 414(b), (c), (m) or (o) of the Code) sponsors, maintains or
contributes to any Employee Plan or Compensation Arrangement that provides
retiree medical or retiree life insurance coverage to former employees of Seller
at the Stations.
(e) Except as described in Schedule 3.13, with respect to
each Employee Plan and, to the extent applicable, each Compensation Arrangement:
(i) each Employee Plan that is intended to be tax-qualified, and each amendment
thereto, is the subject of a favorable determination letter, and no plan
amendment that is not the subject of a favorable determination letter would
affect the validity of an Employee Plan's letter; (ii) no prohibited
transaction, within the definition of section 4975 of the Code or Title 1, Part
4 of ERISA, has occurred which would subject Seller to any liability; and (iii)
all contributions, premiums or payments accrued, in whole or in part, under each
Employee Plan or Compensation Arrangement or with respect thereto as of the
Closing will be paid by the Seller prior to the Closing, including, but not
limited to, contributions thereto with respect to the plan year ending
immediately prior to the Closing.
(f) For purposes of this Agreement, the following terms
shall have the meaning indicated: (i) "Employee Plan" shall mean any pension,
profit-sharing, deferred compensation, vacation, bonus, incentive, medical,
vision, dental, disability, life insurance or any other employee benefit plan as
defined in Section 3(3) of ERISA to which Seller or any entity related to Seller
(under the terms of Section 414(b), (c), (m) or (o) of the Code) contributes or
to which Seller or any entity related to Seller (under the terms of Sections
414(b), (c), (m) or (o) of the Code) sponsors, maintains or otherwise is bound
which provides benefits to persons employed or previously employed at the
Stations; (ii) "Code" shall mean the Internal Revenue Code of 1986, as amended,
any successor thereto and any regulations promulgated thereunder; (iii)
"Compensation Arrangement" shall mean any plan or compensation arrangement other
than an Employee Plan, whether written or unwritten, which provides to
employees, former employees, officers, directors and shareholders of Seller or
any entity related to Seller (under the terms of Section 414(b), (c), (m) or (o)
of the Code) employed or previously employed at the Stations any compensation or
other benefits, whether deferred or not, in excess of base salary or wages,
including, but not limited to, any bonus or incentive plan, stock rights plan,
deferred compensation arrangement, life insurance, stock purchase plan,
severance pay plan and any other employee fringe benefit plan; (iv) "ERISA"
shall mean the Employee Retirement Income Security Act of 1974, as amended, any
successor thereto and any regulations promulgated thereunder; and (v)
"Multi-employer Plan" means a plan, as defined in ERISA Section 3(37), to which
Seller or any entity related to Seller (under the terms of Section 414(b) or (c)
of the Code) contributes or is required to contribute.
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(g) Seller is not a party to or subject to any collective
bargaining agreements with respect to any Station. Except as set forth on
Schedule 3.13, Seller has no written or oral contracts of employment with any
employee of any Station. Seller has complied in all material respects with all
laws, rules, and regulations relating to the employment of labor, including
those related to wages, hours, collective bargaining, occupational safety,
discrimination, and the payment of social security and other payroll related
taxes, and Seller has not received any notice alleging that it has failed to
comply in any material respect with any such laws, rules, or regulations. No
controversies, disputes, or proceedings are pending or, to the best of Seller's
knowledge, threatened, between Seller and any employee (singly or collectively)
of any Station. No labor union or other collective bargaining unit represents or
claims to represent any of the employees of any Station. To the best of Seller's
knowledge, there is no union campaign being conducted to represent any employees
of any Station or to solicit cards from employees to authorize a union to
request a National Labor Relations Board certification election with respect to
any employees at any Station.
3.14 TAXES. Seller has filed or caused to be filed all federal
income tax returns and all other federal, state, county, local, or city tax
returns which are required to be filed, and it has paid or caused to be paid all
taxes shown on those returns or on any tax assessment received by it to the
extent that such taxes have become due, or has set aside on its books adequate
reserves (segregated to the extent required by generally accepted accounting
principles) with respect thereto. There are no governmental investigations or
other legal, administrative, or tax proceedings pursuant to which Seller is or
could reasonably be expected to be made liable for any taxes, penalties,
interest, or other charges, the liability for which could reasonably be expected
to extend to Buyer as transferee of the business of the Stations, and no event
has occurred that could reasonably be expected to impose on Buyer any transferee
liability for any taxes, penalties, or interest due or to become due from
Seller.
3.15 CLAIMS AND LEGAL ACTIONS. Except for any FCC rulemaking
proceedings generally affecting the broadcasting industry, there is no claim,
legal action, counterclaim, suit, arbitration, governmental investigation or
other legal, administrative, or tax proceeding, nor any order, decree or
judgment, in progress or pending, or to the knowledge of Seller threatened,
against Seller with respect to its ownership or operation of any Station or
otherwise against the Assets or the business or operations of any Station, or
which questions the validity or propriety of this Agreement, the Time Brokerage
Agreement or any other agreement, document or instrument to be executed and
delivered by Seller pursuant hereto, or which seeks to delay or enjoin any of
the transactions contemplated hereby or thereby, or which, if adversely
determined, would reasonably be expected to prevent Seller from consummating, or
have a material adverse effect on Seller's ability to consummate, the
transactions contemplated hereby or thereby. In particular, but without limiting
the generality of the foregoing, there are no applications, complaints or
proceedings pending or, to the best of its knowledge, threatened (i) before the
FCC relating to the business or operations of any Station other than rule making
proceedings which affect the television industry generally, (ii) before any
federal or state agency relating to the business or operations of any Station
involving charges of illegal discrimination under any federal or state
employment laws or regulations, or (iii) before any federal, state, or local
agency
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relating to the business or operations of any Station involving zoning issues
under any federal, state, or local zoning law, rule, or regulation.
3.16 ENVIRONMENTAL MATTERS. Except in each case as would not (i)
create any lien on any of the Assets, (ii) impair in any material respect
Buyer's use of the Assets or Buyer's operation of one or more Stations after the
Closing or (iii) impose any liability on Buyer in excess of $25,000 as
transferee of the Assets, and except as set forth on Schedule 3.16:
(a) Seller has complied in all material respects with all
laws, rules, and regulations of all federal, state, and local governments (and
all agencies thereof) concerning the environment, public health and safety, and
employee health and safety, and no charge, complaint, action, suit, proceeding,
hearing, investigation, claim, demand, or notice has been filed or commenced
against Seller in connection with its ownership or operation of any Station
alleging any failure to comply with any such law, rule, or regulation.
(b) To the best of Seller's knowledge, Seller has no
liability relating to its ownership and operation of any Station under any law,
rule, or regulation of any federal, state, or local government (or agency
thereof) concerning release or threatened release of hazardous substances,
public health and safety, or pollution or protection of the environment.
(c) To the best of Seller's knowledge, Seller has no
liability relating to its ownership and operation of any Station (and Seller has
not handled or disposed of any substance, arranged for the disposal of any
substance, or owned or operated any property or facility in any manner that
could form the basis for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand (under the common law or
pursuant to any statute) against Seller giving rise to any such liability) for
damage to any site, location, or body of water (surface of subsurface) or for
illness or personal injury.
(d) To the best of Seller's knowledge, Seller has no
liability relating to its ownership and operation of any Station under any law,
rule, or regulation of any federal, state, or local government (or agency
thereof) concerning employee health and safety.
(e) To the best of Seller's knowledge, Seller has no
liability relating to its ownership and operation of any Station for any illness
or personal injury to any employee.
(f) In connection with its ownership or operation of each
Station, Seller has obtained and been in compliance in all material respects
with all of the terms and conditions of all permits, licenses, and other
authorizations which are required under, and has complied with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables which are contained in, all federal,
state, and local laws, rules, and regulations (including all codes, plans,
judgments, orders, decrees, stipulations, injunctions, and charges thereunder)
relating to public health and safety, worker health and safety, and pollution or
protection of the environment, including laws relating to emissions, discharges,
releases, or threatened releases of pollutants, contaminants, or chemical,
industrial, hazardous, or toxic materials or wastes into ambient air, surface
water, ground water, or lands or otherwise relating
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to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes.
(g) No pollutant, contaminant, or chemical, industrial,
hazardous, or toxic material or waste has ever been manufactured, buried,
stored, spilled, leaked, discharged, emitted, or released by Seller in
connection with its ownership and operation of any Station or, to the best of
Seller's knowledge, by any other party on any Real Property.
(h) For the purpose of this Section 3.16, the phrase "to
the best of Seller's knowledge" means to Seller's actual knowledge following a
reasonable investigation by appropriate employees of Seller with respect to the
use of the Assets and the operation of each Station, but without the performance
of any environmental survey or assessment by an environmental consultant or any
other inquiry to or investigation by any third party.
3.17 COMPLIANCE WITH LAWS. Seller has complied in all material
respects with the Licenses and all federal, state, and local laws, rules,
regulations, and ordinances applicable or relating to the ownership and
operation of each Station. Neither the ownership or use of the properties of any
Station nor the conduct of the business or operations of any Station conflicts
with the rights of any other person or entity.
3.18 CONDUCT OF BUSINESS IN ORDINARY COURSE. Since the date of the
Interim Statements, Seller has conducted the business and operations of each
Station only in the ordinary course and has not:
(a) Suffered any material adverse change in the business,
assets, or properties of any Station, including any damage, destruction, or loss
affecting any assets used or useful in the conduct of the business of any
Station;
(b) Made any material increase in compensation payable or
to become payable to any of the employees of any Station, or any bonus payment
made or promised to any employee of any Station, or any material change in
personnel policies, employee benefits, or other compensation arrangements
affecting the employees of any Station, other than as reflected on Schedule
3.13;
(c) Made any sale, assignment, lease, or other transfer
of any Station's properties other than in the normal and usual course of
business with suitable replacements being obtained therefor;
(d) Canceled any debts owed to or claims held by Seller
with respect to any Station, except in the normal and usual course of business;
(e) Suffered any material write-down of the value of any
Assets or any material write-off as uncollectable of any Accounts Receivable of
any Station; or
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(f) Transferred or granted any right under, or entered
into any settlement regarding the breach or infringement of, any license,
patent, copyright, trademark, trade name, franchise, or similar right, or
modified any existing right relating to any Station.
3.19 TRANSACTIONS WITH AFFILIATES. Other than (i) receipt by Seller
of various general and administrative overhead services from the University or
other affiliates of Seller, including legal, accounting and finance services and
employee benefits which, individually and in the aggregate, do not impose any
material liability or obligation on Seller, (ii) the provision by Seller to its
affiliate, BUCI Productions, Inc., of certain funding and support services, all
as previously disclosed by Seller to Buyer, or (iii) as otherwise set forth in
the notes to Seller's FYE Statements, Seller has not been involved in any
business arrangement relating to any Station with any affiliate of Seller, and
no affiliate of Seller owns any property or right, tangible or intangible, which
is required for the conduct of the business of any Station. As used in this
paragraph, "affiliate" has the meaning set forth in Rule 12b-2 promulgated under
the Securities and Exchange Act of 1934.
3.20 BROKER. Neither Seller nor any person acting on Seller's
behalf has incurred any liability for any finders' or brokers' fees or
commissions in connection with the transactions contemplated by this Agreement.
3.21 FULL DISCLOSURE. No representation or warranty made by Seller
in this Agreement or in any Exhibit or Schedule hereto contains any untrue
statement of a material fact, or omits any material fact required to make the
statements contained herein or therein not misleading.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 ORGANIZATION, STANDING, AND AUTHORITY. Buyer is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Florida and at Closing will be duly qualified to conduct business as a
foreign corporation in The Commonwealth of Massachusetts and State of New
Hampshire. Buyer has all requisite power and authority to execute and deliver
this Agreement and the Escrow Agreement and the documents contemplated hereby
and thereby, and to perform and comply with all of the terms, covenants, and
conditions to be performed and complied with by Buyer hereunder and thereunder.
4.2 AUTHORIZATION AND BINDING OBLIGATION. The execution, delivery,
and performance of this Agreement and the Escrow Agreement by Buyer have been
duly authorized by all necessary actions on the part of Buyer. This Agreement
and the Escrow Agreement have been duly executed and delivered by Buyer and
constitute the legal, valid, and binding obligations of Buyer, enforceable
against Buyer in accordance with their respective terms except as the
enforceability of this Agreement and the Escrow Agreement may be affected by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally
and by judicial discretion in the enforcement of equitable remedies.
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4.3 ABSENCE OF CONFLICTING AGREEMENTS. Subject to obtaining the
Consents and the expiration or termination of the waiting period under the HSR
Act, the execution, delivery, and performance by Buyer of this Agreement and the
Escrow Agreement and the documents contemplated hereby and thereby (with or
without the giving of notice, the lapse of time, or both): (i) do not require
the consent of any third party; (ii) will not conflict with the Articles of
Incorporation or Bylaws of Buyer; (iii) will not conflict with, result in a
breach of, or constitute a default under, any law, judgment, order, injunction,
decree, rule, regulation, or ruling of any court or governmental
instrumentality; or (iv) will not conflict with, constitute grounds for
termination of, result in a breach of, constitute a default under, or accelerate
or permit the acceleration of any performance required by the terms of, any
agreement, instrument, license, or permit to which Buyer is a party or by which
Buyer may be bound, such that Buyer could not acquire or operate the Assets.
4.4 BROKER. Neither Buyer nor any person acting on Buyer's behalf
has incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement, except for a
commission payable by Buyer to Media Venture Partners to be paid in full by
Buyer, and as to which obligation Buyer hereby indemnifies Seller.
4.5 FULL DISCLOSURE. No representation or warranty made by Buyer
in this Agreement or in any Exhibit or Schedule hereto contains any untrue
statement of a material fact, or omits to state any material fact required to
make the statements contained herein or therein not misleading.
4.6 CONSENTS. Except for the FCC Consent provided for in Section
6.1 and the expiration or termination of the waiting period under the HSR Act,
no consent, approval, permit, or authorization of, or declaration to or filing
with any governmental or regulatory authority, or any other third party is
required (i) for Buyer to consummate this Agreement and the transactions
contemplated hereby, or (ii) to permit Buyer to purchase or accept the Assets
from Seller.
4.7 CLAIMS AND LEGAL ACTIONS. Except for any FCC rulemaking
proceedings generally affecting the broadcasting industry, there is no claim,
legal action, counterclaim, suit, arbitration, governmental investigation or
other legal, administrative, or tax proceeding, nor any order, decree or
judgment, in progress or pending, or, to the knowledge of Buyer, threatened,
against Buyer with respect to its assets, its business or its operations, or
with respect to its proposed ownership or operation of any Station (whether
under the Time Brokerage Agreement or otherwise), or which questions the
validity or propriety of this Agreement, the Time Brokerage Agreement or any
other agreement, document or instrument to be executed and delivered by Buyer
pursuant hereto, or which seeks to delay or enjoin any of the transactions
contemplated hereby or thereby, or which, if adversely determined, would
reasonably be expected to prevent Buyer from consummating, or have a material
adverse effect on Buyer's ability to consummate, the transactions contemplated
hereby or thereby.
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SECTION 5. OPERATIONS OF THE STATIONS PRIOR TO CLOSING
Except to the extent that responsibility for any of the following
actions or matters is delegated in whole or part to Buyer under the Time
Brokerage Agreement, Seller agrees that, between the date of this Agreement and
the Closing Date:
5.1 GENERALLY. Seller shall operate each Station diligently in the
ordinary course of business in accordance with its past practices (except where
such conduct would conflict with the following covenants or with Seller's other
obligations under this Agreement), and in accordance with the other covenants
in this Section 5.
5.2 COMPENSATION. Seller shall not increase the compensation,
bonuses, or other benefits payable or to be payable to any person employed in
connection with the conduct of the business or operations of any Station,
except in accordance with past practices.
5.3 CONTRACTS. Except with the prior approval of Buyer, which
approval shall not be unreasonably withheld or delayed, and except for
Contracts, other than Contracts involving trade or barter arrangements, entered
into by Seller in the ordinary course of business during the period from the
date hereof until the day prior to the TBA Effective Date which do not involve
liabilities or obligations in excess of $5,000 individually and $50,000 in the
aggregate, Seller will not enter into any contract or commitment relating to
any Station or the Assets, or amend or terminate any Contract, other than as
expressly provided in Schedule 3.7, the Studio Lease and any other Contract
that is not included in the Assumed Contracts, or waive any material right
thereunder, or incur any obligation (including obligations relating to the
borrowing of money or the guaranteeing of indebtedness) that will be binding on
Buyer after Closing. Seller shall notify Buyer in writing of any approval
requested by Seller pursuant to this Section 5.3. Buyer shall respond to any
such request in writing as soon as practicable but in no event later than ten
(10) business days following Buyer's receipt of such request from Seller. If
Buyer fails to respond to Seller's request on or before the end of such period,
Seller's request shall be deemed to have been approved by Buyer. Prior to the
Closing Date, Seller shall deliver to Buyer a list of all Assumed Contracts
entered into between the date of this Agreement and the Closing Date, together
with copies of such Assumed Contracts.
5.4 DISPOSITION OF ASSETS. Seller shall not sell, assign, lease, or
otherwise transfer or dispose of any of the Assets, except where no longer used
or useful in the business or operations of the Stations or in connection with
the acquisition of replacement property of equivalent kind and value.
5.5 ENCUMBRANCES. Seller shall not create, assume or permit to exist
any claim, mortgage, lien, pledge, condition, charge, or encumbrance of any
nature whatsoever upon the Assets, except for (i) liens disclosed on Schedule
3.5 and Schedule 3.6, which shall be removed prior to the Closing Date, (ii)
liens for current taxes not yet due and payable, and (iii) mechanics' liens and
other similar liens, which shall be removed prior to the Closing Date.
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5.6 LICENSES. Seller shall not cause or permit, by any act or
failure to act, any of the Licenses to expire or to be revoked, suspended, or
modified, or take any action that could cause the FCC or any other governmental
authority to institute proceedings for the suspension, revocation, or adverse
modification of any of the Licenses. Seller shall not fail to prosecute with
reasonable diligence any applications to any governmental authority in
connection with the operation of any Station.
5.7 RIGHTS. Seller shall not waive any material right relating to
any Station or any of the Assets. Seller shall not cause, by any act or failure
to act, any cable system located within the Stations' Designated Market Area to
refuse to carry any Station's signal.
5.8 ACCESS TO INFORMATION. Seller shall give Buyer and its counsel,
accountants, engineers, and other authorized representatives reasonable access
to the Assets and to all other properties, equipment, books, records,
Contracts, and documents relating to the Stations during normal business hours
for the purpose of audit and inspection, including inspections incident to the
environmental study described in Section 6.5 and the engineering study
described in Section 6.6, and will furnish or cause to be furnished to Buyer or
its authorized representatives all information with respect to the affairs and
business of the Stations that Buyer may reasonably request (including any
financial reports and operations reports produced with respect to the affairs
and business of the Stations).
5.9 MAINTENANCE OF ASSETS. Seller shall maintain all of the Assets
in accordance with past practices (ordinary wear and tear excepted), and use,
operate, and maintain all of the Assets in a reasonable manner and in
accordance with the terms of the FCC Licenses, all rules and regulations of the
FCC and generally accepted standards of good engineering practice. Seller shall
maintain inventories of spare parts and expendable supplies at levels
consistent with past practices. If any loss, damage, impairment, confiscation,
or condemnation of or to any of the Assets occurs, other than any loss, damage
or impairment resulting from actions taken (or not taken, although required to
be taken) by Buyer under the Time Brokerage Agreement, Seller shall repair,
replace, or restore the Assets to their prior condition as represented in this
Agreement as soon thereafter as possible, and Seller shall use the proceeds of
any claim under any insurance policy solely to repair, replace, or restore any
of the Assets that are lost, damaged, impaired, or destroyed.
5.10 INSURANCE. Seller shall maintain the existing insurance
policies on the Stations and the Assets.
5.11 CONSENTS. Seller shall use its best efforts to obtain the
Consents and the estoppel certificates described in Section 8.2(b), without any
change in the terms or conditions of any Assumed Contract or License that could
be less advantageous in any material respect to the Station to which such
Assumed Contract or License relates than those pertaining under the Assumed
Contract or License as in effect on the date of this Agreement. Seller shall
promptly advise Buyer of any difficulties experienced in obtaining any of the
Consents and of any conditions proposed, considered, or requested for any of
the Consents. Upon Buyer's request, Seller shall cooperate with Buyer and use
commercially reasonable efforts to obtain from the
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lessors under each Real Property lease such estoppel certificates and consents
to the collateral assignment of the lessee's interest under each such lease as
Buyer's lenders may reasonably request.
5.12 BOOKS AND RECORDS. Seller shall maintain its books and records
relating to the Stations in accordance with past practices.
5.13 NOTIFICATION. Seller shall promptly notify Buyer in writing of
any unusual or material developments with respect to the business or operations
of any Station, and of any material change in any of the information contained
in Seller's representations and warranties contained in Section 3 of this
Agreement.
5.14 FINANCIAL INFORMATION. Seller shall furnish to Buyer within
twenty days after the end of each month ending between the date of this
Agreement and the Closing Date a statement of income and expense and a
statement of operating cash flow for the month just ended and such other
financial information (including information on payables and receivables) as
Buyer may reasonably request. All financial information delivered by Seller to
Buyer pursuant to this Section shall be prepared from the books and records of
Seller, shall reflect the books, records, and accounts of the Stations, and
shall present fairly the financial condition of the Stations as at their
respective dates and the results of operations for the periods then ended.
5.15 COMPLIANCE WITH LAWS. Seller shall comply in all material
respects with all laws, rules, and regulations applicable or relating to the
ownership and operation of each Station.
5.16 FINANCING LEASES. Seller will satisfy at or prior to Closing
all outstanding obligations under capital and financing leases with respect to
any of the Assets and obtain good title to the Assets leased by Seller pursuant
to those leases so that those Assets shall be transferred to Buyer at Closing
free of any interest of the lessors.
5.17 PROGRAMMING. Seller shall not make any material changes in the
Stations' broadcast hours or make any material change in the Stations'
programming policies, except such changes as in the good faith judgment of the
Seller are required by the public interest.
5.18 PRESERVATION OF BUSINESS. Seller shall use its best efforts to
preserve the business of the Stations and the Stations' present relationships
with suppliers and others having business relations with them, to the end that
the business, operations, and prospects of the Stations shall be unimpaired at
the Closing Date. The ordinary and customary operating practices of the
Stations shall be maintained.
5.19 TRADE AGREEMENTS. Seller shall take such actions as are
required to reduce Seller's obligations under the trade and barter agreements
listed in Attachment C to Schedule 3.7 hereto (the "Existing Trade Agreements")
so that the total obligations of Seller under the Existing Trade Agreements as
of the TBA Effective Date shall not exceed the total value of all goods or
services to be received by Seller under the Existing Trade Agreements.
Notwithstanding any provision of this Agreement or the Time Brokerage Agreement
to the contrary, Buyer shall not be required to assume on the TBA Effective
Date or the Closing Date
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any of Seller's obligations under the Existing Trade Agreements to the extent
such obligations, as of the TBA Effective Date or Closing Date, exceed the
value of goods or services to be received by Seller under the Existing Trade
Agreements, as of the TBA Effective Date or Closing Date.
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC CONSENT.
(a) The assignment of the FCC Licenses in connection with the
purchase and sale of the Assets pursuant to this Agreement shall be subject to
the prior consent and approval of the FCC.
(b) Seller and Buyer shall promptly prepare an appropriate
application for the FCC Consent and shall file the application with the FCC
within five (5) business days of the execution of this Agreement. The parties
shall prosecute the application with all reasonable diligence and otherwise use
their commercially reasonable efforts to obtain a grant of the application as
expeditiously as practicable. Each party agrees to comply with any condition
imposed on it by the FCC Consent, except that no party shall be required to
comply with a condition if (1) the condition was imposed on it as the result of
a circumstance the existence of which does not constitute a breach by the party
of any of its representations, warranties, or covenants under this Agreement,
and (2) compliance with the condition would have a material adverse effect upon
it. Buyer and Seller shall oppose any requests for reconsideration or judicial
review of the FCC Consent. If the Closing shall not have occurred for any
reason within the original effective period of the FCC Consent, and neither
party shall have terminated this Agreement under Section 9, the parties shall
jointly request one or more extensions of the effective period of the FCC
Consent. No extension of the FCC Consent shall limit the exercise by either
party of its rights under Section 9.
(c) Seller acknowledges that Buyer's portion of the application
for the FCC Consent shall include a request for temporary waiver of the FCC's
so-called duopoly rule (47 C.F.R. 73.3555(b)) to permit Buyer's common
ownership of WABU and Buyer's existing Television Station WBPX(TV), Norwell,
Massachusetts, pending Buyer's disposition of WBPX(TV) and/or a commitment that
Buyer will, on or before the Closing Date, assign to an independent trustee the
licenses issued by the FCC for WBPX(TV) and transfer to the trustee such other
assets of WBPX(TV) as the FCC may require pending Buyer's disposition of
WBPX(TV) (collectively, the "Waivers"). Buyer shall use all commercially
reasonable efforts, at its sole expense, to prosecute the Waivers.
6.2 CONTROL OF THE STATIONS. Prior to Closing, Buyer shall not,
directly or indirectly, control, supervise, direct, or attempt to control,
supervise, or direct, the operations of the Stations; such operations,
including complete control and supervision of all programs, employees, and
policies of each Station, shall be the sole responsibility of Seller until the
Closing.
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6.3 RISK OF LOSS.
(a) The risk of any loss, damage, impairment, confiscation, or
condemnation of any of the Assets, other than any loss, damage or impairment
resulting from actions taken (or not taken, although required to be taken) by
Buyer pursuant to the Time Brokerage Agreement, from any cause whatsoever shall
be borne by Seller at all times prior to the Closing.
(b) If any damage or destruction of the Assets or any other
event occurs (other than as a result of actions taken, or not taken although
required to be taken, by Buyer under the Time Brokerage agreement) which (i)
causes WABU to cease broadcasting operations for a period of three or more
consecutive days or (ii) prevents in any material respect signal transmission
by WABU in the normal and usual manner and Seller fails to restore or replace
the Assets so that normal and usual transmission is resumed within seven days
of the damage, destruction or other event, Buyer, in its sole discretion, may
(x) terminate this Agreement forthwith without any further obligations
hereunder upon written notice to Seller, in which event all funds held by the
Escrow Agent pursuant to the Escrow Agreement, including all interest and other
proceeds from the investment of such funds, shall be immediately returned to
Buyer, (y) postpone the Closing for a period not to exceed thirty (30) days,
during which period Seller shall complete the restoration and replacement of
the Assets prior to the Closing Date, or (z) proceed to consummate the
transaction contemplated by this Agreement and complete the restoration and
replacement of the Assets after the Closing Date, in which event Seller shall
deliver to Buyer all insurance proceeds received in connection with such
damage, destruction or other event.
6.4 CONFIDENTIALITY. Except as necessary for the consummation of the
transaction contemplated by this Agreement, including Buyer's obtaining of
financing related hereto, and except as and to the extent required by law,
including, without limitation, disclosure requirements of federal or state
securities laws and the rules and regulations of securities markets, each party
will keep confidential any information obtained from the other party in
connection with the transactions contemplated by this Agreement. If this
Agreement is terminated, each party will return to the other party all
information obtained by the such party from the other party in connection with
the transactions contemplated by this Agreement.
6.5 ENVIRONMENTAL AUDIT. Buyer may, at its option and expense,
retain an environmental consultant to be selected by Buyer to perform a Phase I
environmental survey of the properties of each Station. If the survey discloses
any material environmental hazard or material possibility of future liability
for environmental damages or clean-up costs, Buyer shall so notify Seller as
soon as practicable, and in any event prior to June 1, 1999.
6.6 ENGINEERING STUDY. Buyer may, at its option and expense, retain
an engineering firm to conduct a proof of performance study of each Station and
to prepare a report on such Station's compliance with customary engineering
practices and all applicable FCC rules, regulations, prescribed practices, and
technical standards. If the survey discloses any material deficiencies in the
operations or equipment of any Station, Buyer shall so notify Seller as soon as
practicable, and in any event prior to June 1, 1999.
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6.7 COOPERATION. Buyer and Seller shall cooperate fully with each
other and their respective counsel and accountants in connection with any
actions required to be taken as part of their respective obligations under this
Agreement, and Buyer and Seller shall execute such other documents as may be
necessary and desirable to the implementation and consummation of this
Agreement, and otherwise use their commercially reasonable efforts to
consummate the transaction contemplated hereby and to fulfill their obligations
under this Agreement. Notwithstanding the foregoing, neither party shall have
any obligation (i) to expend funds to obtain any of the Consents or (ii) to
agree to any adverse change in any License or Assumed Contract to obtain a
Consent required with respect thereto.
6.8 BULK SALES LAW. Any loss, liability, obligation, or cost
suffered by Seller or Buyer as the result of the failure of Seller or Buyer to
comply with the provisions of any bulk sales law applicable to the transfer of
the Assets as contemplated by this Agreement shall be borne by Seller.
6.9 SALES TAX FILINGS. Seller (with the assistance of Buyer's staff
under the Time Brokerage Agreement) shall continue to file Massachusetts and
New Hampshire sales tax returns that are due prior to the Closing with respect
to the Stations in accordance with Seller's past practices and shall
concurrently deliver copies of all such returns to Buyer.
6.10 ACCESS TO BOOKS AND RECORDS. Seller shall provide Buyer access
and the right to copy for a period of three (3) years from the Closing Date (or
such longer period as may be required for tax purposes) any books and records
relating to the Assets that are not included in the Assets. Buyer shall provide
Seller access and the right to copy for a period of three (3) years from the
Closing Date (or such longer period as may be required for tax purposes) any
books and records relating to the Assets.
6.11 APPRAISAL. Buyer and Seller agree to allocate the Purchase Price
for tax and recording purposes in accordance with an appraisal to be conducted
by an appraisal firm selected and paid for by Buyer with experience in the
valuation and appraisal of television station assets.
6.12 NONCOMPETITION AGREEMENT. At Closing, Buyer and Seller shall
enter into a Noncompetition Agreement in the form of Schedule 6.12 and Eight
Hundred Thousand Dollars ($800,000) of the Purchase Price shall be allocated to
the covenants of Seller set forth therein on the Closing Date.
6.13 HSR ACT FILING. Seller and Buyer agree to (a) file, or cause to
be filed, with the U.S. Department of Justice ("DOJ") and Federal Trade
Commission ("FTC") all filings, if any, which are required in connection with
the transactions contemplated hereby under the HSR Act within ten (10) business
days of the date of this Agreement; (b) submit to the other party, prior to
filing, their respective HSR Act filings to be made hereunder, and to discuss
with the other any comments the reviewing party may have; (c) cooperate with
each other in connection with such HSR Act filings, which cooperation shall
include furnishing the other with any information or documents in such party's
possession that may be reasonably required in connection with such filings; (d)
promptly file, after any request by the FTC or DOJ, any information or documents
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requested by the FTC or DOJ; and (e) furnish each other with any correspondence
from or to, and notify each other of any other communications with, the FTC or
DOJ which relates to the transactions contemplated hereunder, and to the extent
practicable, to permit each other to participate in any conferences with the FTC
or DOJ.
6.14 CALL SIGN CHANGE. Upon request of Buyer, Seller shall apply to
the FCC for authority to change the call letters of the Stations (with the
consent of the FCC) to such call letters that Buyer shall reasonably designate
and shall request that such change shall be effective as of the TBA Effective
Date or such other date specified by Buyer. Seller must coordinate with Buyer
any proposed changes to the call letters of the Stations before taking any
action to change such letters.
6.15 NO INCONSISTENT ACTION. Neither party shall take any action that
is inconsistent with its obligations under this Agreement or the Time Brokerage
Agreement or that could hinder or delay the consummation of the transactions
contemplated by this Agreement. Without limiting the generality of the
foregoing, Seller covenants that neither it nor any of its directors, officers
or agents will, (a) solicit, initiate or encourage the submission of any
proposal or offer relating to any (i) liquidation, dissolution or
recapitalization, (ii) merger or consolidation, (iii) acquisition or sale of
securities, (iv) transfer or assignment of any FCC License (v) sale, lease or
disposition of substantially all of the assets of Seller, or (vi) similar
transaction or business combination, in each case involving Seller or (b)
participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in any
other manner any effort or attempt by any party to do or seek any of the
foregoing. Seller shall notify Buyer as soon as practicable if any party makes
any proposal with respect to any of the foregoing. Notwithstanding any other
provision in this Agreement to the contrary, in the event that either party
violates its obligations in this Section 6.15, the other party shall have the
right to seek specific performance of the violating party's obligations
hereunder.
6.16 STUDIO FACILITIES.
(a) Buyer, its employees and agents shall be permitted to
access and occupy the Stations' existing studio and office facilities leased by
Seller pursuant to the Studio Lease and to use and operate the Assets,
including all broadcasting facilities and equipment, located thereon; provided,
however, that Buyer shall be required to vacate such facilities, upon ninety
(90) days' written notice from Seller that is provided to Buyer no sooner than
the TBA Effective Date (such date of termination is the "Termination Date"). If
the Closing has not occurred as of the Termination Date, Buyer shall remove the
Assets from the premises leased by Seller under the Studio Lease and deliver
such Assets to Buyer's replacement studio and office building, if such building
is available on the Termination Date, or store such Assets in an appropriate
storage facility. All Assets removed by Buyer from the Studio Lease premises
shall be returned to Seller promptly following any termination of this
Agreement in accordance with its terms.
(b) Buyer shall keep Seller informed of Buyer's actions with
respect to obtaining a replacement studio and office building for the Stations.
If this Agreement is terminated in accordance with its terms, Seller shall have
the right to notify Buyer no later than
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ten (10) business days following such termination of Seller's election either
to (i) assume, effective as of the date of such termination, any lease entered
into by Buyer for a replacement studio and office facility for the Stations
(the "New Studio Lease"), in which event Buyer shall assign the New Studio
Lease to Seller pursuant to an assignment and assumption agreement reasonably
acceptable to Buyer and Seller, or (ii) occupy and use any such facility for a
period not to exceed ninety (90) days from the termination of this Agreement in
exchange for Seller's reimbursement of the rent and other payments made by
Buyer pursuant to the terms of the New Studio Lease for such 90-day period, in
which event Buyer shall permit Seller to so occupy such facility and shall
cooperate with Seller in connection therewith. Unless the New Studio Lease by
its terms permits such assignment without the landlord's consent, Buyer shall
use its best efforts to obtain the prior approval of the landlord under any New
Studio Lease to the assignment and assumption of the New Studio Lease pursuant
to Section 6.16(b)(i).
6.17 NOTICES OF BREACH. Buyer shall notify Seller in writing promptly
upon the occurrence of any event known to Buyer that would cause or constitute
a material breach of any of Seller's representations or warranties in Section 3
hereof. Seller shall notify Buyer in writing promptly upon the occurrence of
any event known to Seller that would cause or constitute a material breach of
any of Buyer's representations or warranties in Section 4 hereof.
6.18 UNIVERSITY MATTERS.
(a) As of the TBA Effective Date, Buyer will establish for WABU
an intern program for University students that is consistent with Buyer's
conduct of the business and operation of WABU.
(b) At the University's request, Buyer shall cooperate with the
University and, after taking Buyer's own business interests into account,
consider broadcasting on the Stations University commencement exercises and
intercollegiate sports programs. After taking the University's own business
interests into account, the University will first offer any such programming to
Buyer. Buyer shall thereafter notify the University as soon as reasonably
practicable whether Buyer shall broadcast any such programs.
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT CLOSING
7.1 CONDITIONS TO OBLIGATIONS OF BUYER. All obligations of Buyer at
the Closing are subject at Buyer's option to the fulfillment prior to or at the
Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations and
warranties of Seller contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time.
(b) Covenants and Conditions. Seller shall have performed and
complied in all material respects with all covenants, agreements, and
conditions required by this Agreement to be performed or complied with by it
prior to or on the Closing Date.
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(c) Consents. All Consents required for Seller's performance
hereunder shall have been obtained and delivered to Buyer without any adverse
change in the terms or conditions of any Assumed Contract or any governmental
license, permit, or other authorization.
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Buyer of any material conditions not already
specified on the FCC Licenses or that need not be complied with by Buyer under
Section 6.1 hereof, Seller shall have complied with any conditions imposed on
it by the FCC Consent, and the FCC Consent shall have become a Final Order;
provided, however, that Buyer acknowledges that Buyer shall not be permitted to
refuse to perform its obligations at the Closing as a result of the imposition
of any condition in the FCC Consent that requires Buyer to dispose of WBPX(TV).
(e) Governmental Authorizations. Seller shall be the holder of
all Licenses and there shall not have been any modification of any License that
could reasonably be expected to have an adverse effect on any Station or the
conduct of its business and operations. No proceeding shall be pending or
threatened the effect of which could be to revoke, cancel, fail to renew,
suspend, or modify adversely any License.
(f) Deliveries. Seller shall have made or stand willing to make
all the deliveries to Buyer set forth in Section 8.2.
(g) Adverse Change. Between the date of this Agreement and the
Closing Date, there shall have been no material adverse change in the assets or
properties of the Stations, including any material damage, destruction, or loss
affecting any such assets or properties used or useful in the conduct of the
business of the Stations other than as a result of actions taken (or not taken,
although required to be taken) by Buyer pursuant to the Time Brokerage
Agreement.
(h) HSR Act. The waiting period under the HSR Act shall have
expired without unresolved action by the DOJ or the FTC to prevent the Closing.
(i) Time Brokerage Agreement. The Time Brokerage Agreement
shall be in full force and effect, and Seller shall have complied in all
material respects with its obligations thereunder.
(j) Satellite Authorizations. The FCC shall have granted to
Buyer all waivers and authorizations required to operate WZBU and WNBU as
satellite stations of WABU pursuant to Section 73.3555, Note 5, of the FCC's
Rules (47 C.F.R. ss. 73.3555, Note 5) and such grants shall have become Final
Orders.
(k) Legal Proceedings. No injunction, restraining order or
decree of any nature of any court or governmental authority of competent
jurisdiction shall be in effect which restrains or prohibits Buyer from
consummating the transactions at the Closing.
7.2 CONDITIONS TO OBLIGATIONS OF SELLER. All obligations of Seller
at the Closing are subject at Seller's option to the fulfillment prior to or at
the Closing Date of each of the following conditions:
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(a) Representations and Warranties. All representations and
warranties of Buyer contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time.
(b) Covenants and Conditions. Buyer shall have performed and complied
in all material respects with all covenants, agreements, and conditions
required by this Agreement to be performed or complied with by it prior to or
on the Closing Date.
(c) Deliveries. Buyer shall have made or stand willing to make all
the deliveries set forth in Section 8.3.
(d) FCC Consent. The FCC Consent shall have been granted without the
imposition on Seller of any material conditions that need not be complied with
by Seller under Section 6.1 hereof and Buyer shall have complied with any
conditions imposed on it by the FCC Consent. All other consents required for
Buyer's performance hereunder shall have been obtained and delivered to Seller.
(e) HSR Act. The waiting period under the HSR Act shall have expired
without unresolved action by the DOJ or the FTC to prevent the Closing.
(f) Time Brokerage Agreement. The Time Brokerage Agreement shall be
in full force and effect, and Buyer shall have complied in all material
respects with its obligations thereunder.
(g) Legal Proceedings. No injunction, restraining order or decree of
any nature of any court or governmental authority of competent jurisdiction
shall be in effect which restrains or prohibits Seller from consummating the
transactions at the Closing.
SECTION 8. CLOSING AND CLOSING DELIVERIES
8.1 CLOSING.
(a) Closing Date. Subject to the satisfaction or waiver of all other
conditions precedent to the holding of the Closing, the Closing shall take
place at 10:00 a.m. on a date, to be set by Buyer on at least five days'
written notice to Seller, that is (1) not earlier than the first business day
after the FCC Consent is granted, and (2) not later than ten business days
following the date upon which the FCC Consent has become a Final Order, subject
to satisfaction or waiver of all other conditions precedent to the holding of
the Closing. If Buyer fails to specify the date for Closing prior to the fifth
business day after the date upon which the FCC Consent becomes a Final Order,
the Closing shall take place on the tenth business day after the date upon
which the FCC Consent becomes a Final Order.
(b) Closing Place. The Closing shall be held at the offices of Xxxxx,
Xxxxxxxx & Tannenwald, P.C., 0000 Xxxxx Xxxxxx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000, or any other place that is agreed upon by Buyer and
Seller.
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8.2 DELIVERIES BY SELLER. Prior to or on the Closing Date, Seller
shall deliver to Buyer the following, in form and substance reasonably
satisfactory to Buyer and its counsel:
(a) Transfer Documents. A duly executed xxxx of sale dated as of
the Closing Date substantially in the form of Schedule 8.2(a) hereto, motor
vehicle titles, assignment, and other transfer documents which shall be
sufficient to vest good and marketable title to the Assets in the name of
Buyer, free and clear of all claims, liabilities, security interests,
mortgages, liens, pledges, conditions, charges or encumbrances, except for
liens for current taxes not yet due and payable;
(b) Estoppel Certificates. Estoppel certificates of the lessors
of all leasehold and subleasehold interests included in the Real Property
Leases that are obtained pursuant to Section 5.11, substantially in the form of
Schedule 8.2(b) hereto;
(c) Consents. A manually executed copy of any instrument
evidencing receipt of any Consent;
(d) Officer's Certificate. A certificate, dated as of the
Closing Date, executed on behalf of Seller by an officer of Seller, certifying
(1) that the representations and warranties of Seller contained in this
Agreement are true and complete in all material respects as of the Closing Date
as though made on and as of that date; and (2) that Seller has in all material
respects performed and complied with all of its obligations, covenants, and
agreements set forth in this Agreement to be performed and complied with on or
prior to the Closing Date;
(e) Licenses, Contracts, Business Records, Etc. Copies of all
Licenses, Assumed Contracts, blueprints, schematics, working drawings, plans,
projections, engineering records, and all files and records used by Seller in
connection with its operations;
(f) Opinion of Counsel. Opinions of Seller's counsel dated as of
the Closing Date, substantially in the forms of Schedule 8.2(f)(A) and
8.2(f)(B) hereto; and
(g) Noncompetition Agreement. The Noncompetition Agreement in
the form of Schedule 6.12, duly executed on behalf of Seller.
8.3 DELIVERIES BY BUYER. Prior to or on the Closing Date, Buyer
shall deliver to Seller the following, in form and substance reasonably
satisfactory to Seller and its counsel:
(a) Purchase Price. The Purchase Price as provided in Sections
2.3 and 2.4;
(b) Assumption Agreements. Assumption Agreements dated as of the
Closing Date substantially in the form of Schedule 8.3(b) hereto, pursuant to
which Buyer shall assume and undertake to perform the Assumed Liabilities;
(c) Officer's Certificate. A certificate, dated as of the
Closing Date, executed on behalf of Buyer by an officer of Buyer, certifying
(1) that the representations and warranties of Buyer contained in this
Agreement are true and complete in all material respects as of the
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Closing Date as though made on and as of that date, and (2) that Buyer has in
all material respects performed and complied with all of its obligations,
covenants, and agreements set forth in this Agreement to be performed and
complied with on or prior to the Closing Date;
(d) Opinion of Counsel. An opinion of Buyer's counsel dated as
of the Closing Date, substantially in the form of Schedule 8.3(d) hereto.
(e) Noncompetition Agreement. The Noncompetition Agreement in
the form of Schedule 6.12 duly executed by Buyer and the payment of Eight
Hundred Thousand Dollars ($800,000) to Seller thereunder.
SECTION 9. TERMINATION
9.1 TERMINATION BY SELLER. This Agreement may be terminated by
Seller and the purchase and sale of the Stations abandoned, if Seller is not
then in material default hereunder, upon written notice to Buyer, upon the
occurrence of any of the following:
(a) Conditions. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of Seller set
forth in this Agreement have not been satisfied or waived in writing by Seller.
(b) Judgments. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that would
prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred by
December 31, 2000.
(d) Breach. Without limiting Seller's rights under the other
provisions of this Section 9, if Buyer has failed to cure any material breach
of any of its representations, warranties or covenants under this Agreement or
the Time Brokerage Agreement within thirty days after Buyer received written
notice of such breach from Seller.
9.2 TERMINATION BY BUYER. This Agreement may be terminated by Buyer
and the purchase and sale of the Stations abandoned, if Buyer is not then in
material default, upon written notice to Seller, upon the occurrence of any of
the following:
(a) Conditions. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of Buyer set
forth in this Agreement have not been satisfied or waived in writing by Buyer.
(b) Judgments. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that would
prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred by
December 31, 2000.
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(d) Interruption of Service. If any damage or destruction of the
Assets occurs and, as a result thereof, Buyer is permitted to terminate this
Agreement pursuant to Section 6.3(b) hereof.
(e) Environmental Hazards. Upon written notice to Seller given
no later than July 1, 1999, if Buyer shall have notified Seller on or before
June 1, 1999 of material environmental hazards or the material possibility of
environmental damages or clean-up costs, as indicated in the environmental
study described in Section 6.5, and the cause thereof shall not have been
remedied prior to June 30, 1999.
(f) Technical Deficiencies. Upon written notice to Seller given
no later than July 1, 1999, if Buyer shall have notified Seller on or before
June 1, 1999 of material deficiencies in the operations or equipment of any
Station, as indicated in the engineering study described in Section 6.6, and
the cause thereof shall not have been remedied prior to June 30, 1999.
(g) Breach. Without limiting Buyer's rights under the other
provisions of this Section 9, if Seller has failed to cure any material breach
of any of its representations, warranties or covenants under this Agreement or
the Time Brokerage Agreement within thirty days after Seller received written
notice of such breach from Buyer.
9.3 RIGHTS ON TERMINATION. If this Agreement is terminated pursuant
to Section 9.1 or Section 9.2 and neither party is in material breach of this
Agreement, the parties hereto shall not have any further liability to each
other with respect to the purchase and sale of the Assets. If this Agreement is
terminated by Seller due to Buyer's material breach of this Agreement, then the
payment to Seller of the Escrow Fund (as defined below) pursuant to Section 9.4
below shall be liquidated damages and shall constitute full payment and the
exclusive remedy for any damages suffered by Seller by reason of Buyer's
material breach of this Agreement. Seller and Buyer agree in advance that
actual damages would be difficult to ascertain and that the amount of the
Escrow Fund is a fair and equitable amount to reimburse Seller for damages
sustained due to Buyer's material breach of this Agreement. If this Agreement
is terminated by Buyer pursuant to Section 9.2(d), (e) or (f), and Seller is
not (other than in connection with matters related to the events and
circumstances associated with such termination provisions) in material default
of its representations, warranties or covenants hereunder, the Escrow Fund
shall be returned to Buyer, and Seller shall have no further obligation or
liability to Buyer hereunder. Except as set forth in the immediately preceding
sentence, if this Agreement is terminated by Buyer due to Seller's material
breach of this Agreement, Buyer shall have all rights and remedies available at
law or equity.
9.4 ESCROW DEPOSIT. Buyer has deposited with the Escrow Agent the
sum of Two Million Dollars ($2,000,000) in accordance with the Escrow
Agreement. All such funds deposited with the Escrow Agent shall be held and
disbursed in accordance with the terms of the Escrow Agreement and the
following provisions:
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(a) At the Closing, all amounts held by the Escrow Agent pursuant to
the Escrow Agreement, including any interest or other proceeds from the
investment of funds held by the Escrow Agent (the "Escrow Fund"), shall be
disbursed to or at the direction of Buyer.
(b) If this Agreement is terminated pursuant to Section 9.1 or 9.2 and
Buyer is not in material breach of this Agreement, the Escrow Fund shall be
disbursed to or at the direction of Buyer.
(c) If this Agreement is terminated by Seller due to Buyer's material
breach of this Agreement or because of Buyer's inability to obtain financing as
of the Closing Date, then (i) the Escrow Fund shall be disbursed to or at the
direction of Seller or, if Seller shall have received the First Advance
pursuant to Section 9.5 below, the First Advance shall be retained by Seller,
in either case as liquidated damages under Section 9.3 above, and (ii) if
Seller shall have received the Second Advance pursuant to Section 9.5 below,
Seller shall immediately return the Second Advance to Buyer.
9.5 DISPOSITION OF WBPX(TV).
(a) Buyer shall use commercially reasonable efforts to dispose
of WBPX(TV) as soon as practicable but in no event later than the expiration of
any deadline imposed by the FCC for such disposition, as such deadline may be
extended by the FCC. Notwithstanding the requirement in the preceding sentence,
if (i) the FCC shall require Buyer to dispose of WBPX(TV) prior to or
concurrently with Buyer's purchase of one or more of the Stations (the
"Disposition Requirement"), (ii) Buyer shall not have satisfied the Disposition
Requirement on or before the date the Closing is scheduled to occur pursuant to
Section 8.1(a) (the "Initial Closing Date"), and (iii) each of the conditions
set forth in Section 7.1 (other than any condition relating to the Disposition
Requirement) shall have been satisfied prior to or on the Initial Closing Date,
Buyer and Seller shall jointly instruct the Escrow Agent to deliver to Seller
by wire transfer of same-day funds the Escrow Fund (as defined in Section
9.4(a)) (such payment is the "First Advance"). If Buyer fails to execute and
deliver the instructions for the First Advance as required by the preceding
sentence or if Seller does not receive the Escrow Fund from the Escrow Agent
(or an amount equal thereto from Buyer) within five (5) business days from the
Initial Closing Date, this Agreement may be terminated by Seller, if Seller is
not then in material default hereunder, upon written notice to Buyer, and the
Escrow Fund shall be disbursed to or at the direction of Seller as liquidated
damages under Section 9.3.
(b) In consideration for the payment of the First Advance to
Seller, Seller shall not be permitted to terminate this Agreement as a result
of Buyer's failure to satisfy the Disposition Requirement, and the deadline for
Buyer's satisfaction of the Disposition Requirement shall be extended until the
date that is six (6) months from the Initial Closing Date (the "First Extension
Deadline"), during which period Buyer shall continue to use commercially
reasonable efforts to satisfy the Disposition Requirement as soon as
practicable but in no event later than the First Extension Deadline. If Buyer
shall not have satisfied the Disposition Requirement on or before the First
Extension Deadline and each of the conditions set forth in Section 7.1 (other
than any condition relating to the Disposition Requirement) shall have been
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satisfied prior to or on the First Extension Deadline, Buyer shall pay to
Seller by wire transfer of same-day funds (in accordance with wire transfer
instructions provided by Seller to Buyer) Five Million Dollars ($5,000,000)
(such payment is the "Second Advance") no later than three (3) business days
following the First Extension Deadline. If Buyer fails to pay the Second
Advance as required by the preceding sentence, this Agreement may be terminated
by Seller, if Seller is not then in material default hereunder, upon written
notice to Buyer, and Seller shall be permitted to retain the Escrow Fund as
liquidated damages under Section 9.3.
(c) In consideration for the payment of the Second Advance to
Seller, Seller shall not be permitted to terminate this Agreement as a result
of Buyer's failure to satisfy the Disposition Requirement, and the deadline for
Buyer's satisfaction of the Disposition Requirement shall be extended until the
date that is the later of (i) six (6) months from the First Extension Deadline
and (ii) the upset date specified in Sections 9.1(c) and 9.2(c) (such later
date is the "Second Extension Deadline"), during which period Buyer shall
continue to use commercially reasonable efforts to satisfy the Disposition
Requirement as soon as practicable but in no event later than the Second
Extension Deadline. If Buyer shall not have satisfied the Disposition
Requirement on or before the Second Extension Deadline and each of the
conditions set forth in Section 7.1 (other than any condition relating to the
Disposition Requirement) shall have been satisfied prior to or on the Second
Extension Deadline, Seller shall have the right to terminate this Agreement, if
Seller is not then in material default hereunder, upon written notice to Buyer,
in which event Seller shall be permitted to retain the First Advance and Second
Advance as liquidated damages under Section 9.3.
(d) The entire amount of the First Advance and Second Advance
received by Seller shall be applied as a credit toward the Purchase Price
payable by Buyer to Seller at the Closing. If Buyer terminates this Agreement
in accordance with Section 9.2 at any time following Seller's receipt of the
First Advance or the First Advance plus the Second Advance, as the case may be,
Seller shall return to Buyer no later than five (5) business days following
Seller's receipt of Buyer's notice of termination an amount equal to the First
Advance or the First Advance plus the Second Advance, as the case may be. Any
amount that Seller fails to pay pursuant to the preceding sentence shall bear
interest at the rate of ten percent (10%) per annum from the date such amount
is due until paid in full. Notwithstanding any provision of this Agreement to
the contrary, Buyer shall have no further obligation hereunder to dispose of
WBPX(TV) at any time following a change in the FCC's rules and regulations or
the issuance of a ruling by the FCC that would permit Buyer to simultaneously
own and operate the Stations and WBPX(TV).
(e) If Seller fails to join with Buyer in requesting any
required extension of the effective period of the FCC Consent that is
consistent with the provisions of this Section 9.5 or opposes any such
extension, Buyer shall have no further obligation under this Section 9.5,
Seller shall return to Buyer an amount equal to the First Advance or the First
Advance plus the Second Advance, as the case may be, and Buyer shall be
entitled to exercise all rights and remedies under this Agreement, including,
without limitation, the right to seek specific performance pursuant to Section
10.6. Nothing in this Section 9.5 shall limit Buyer's right to seek specific
performance pursuant to Section 10.6.
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SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION;
CERTAIN REMEDIES
10.1 REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained in this Agreement shall be deemed continuing
representations and warranties and shall survive the Closing for a period of
eighteen months. Any investigations by or on behalf of any party hereto shall
not constitute a waiver as to enforcement of any representation, warranty, or
covenant contained in this Agreement. No notice or information delivered by
Seller shall affect Buyer's right to rely on any representation or warranty
made by Seller or relieve Seller of any obligations under this Agreement as the
result of a breach of any of its representations and warranties.
10.2 INDEMNIFICATION BY SELLER. Notwithstanding the Closing, and
regardless of any investigation made at any time by or on behalf of Buyer or
any information Buyer may have, Seller hereby agrees to indemnify and hold
Buyer harmless against and with respect to, and shall reimburse Buyer for:
(a) Any and all losses, liabilities, or damages resulting from
any untrue representation, breach of warranty, or nonfulfillment of any
covenant by Seller contained in this Agreement or in any certificate, document,
or instrument delivered to Buyer under this Agreement.
(b) Any and all obligations of Seller not assumed by Buyer
pursuant to this Agreement, including any liabilities arising at any time under
any Contract not included in the Assumed Contracts.
(c) Any loss, liability, obligation, or cost resulting from the
failure of the parties to comply with the provisions of any bulk sales law
applicable to the transfer of the Assets.
(d) Any and all losses, liabilities, or damages resulting from
the operation or ownership of any Station prior to the Closing, including any
liabilities arising under the Licenses or the Assumed Contracts which relate to
events occurring prior the Closing Date, except to the extent that any such
losses, liabilities or damages result from any action taken (or not taken,
although required to be taken) by Buyer under the Time Brokerage Agreement.
(e) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including reasonable legal fees
and expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
10.3 INDEMNIFICATION BY BUYER AND ITS SUBSIDIARY. Notwithstanding the
Closing, and regardless of any investigation made at any time by or on behalf
of Seller or any information Seller may have, each of Buyer and, in
consideration of the assignment by Buyer to Buyer's wholly-owned, direct
subsidiary, D P Media License of Boston, Inc. ("D P License"), of all of
Buyer's rights under this Agreement concerning the acquisition of the FCC
Licenses, DP License
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agrees to, jointly and severally, indemnify and hold Seller harmless against
and with respect to, and shall reimburse Seller for:
(a) Any and all losses, liabilities, or damages resulting from
any untrue representation, breach of warranty, or nonfulfillment of any
covenant by Buyer contained in this Agreement or in any certificate, document,
or instrument delivered to Seller under this Agreement.
(b) Any and all Assumed Liabilities.
(c) Any and all losses, liabilities, or damages resulting from
the operation or ownership of any Station or Asset on or after the Closing.
(d) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
10.4 PROCEDURE FOR INDEMNIFICATION. The procedure for indemnification
shall be as follows:
(a) The party claiming indemnification (the "Claimant") shall
promptly give notice to the party from which indemnification is claimed (the
"Indemnifying Party") of any claim, whether between the parties or brought by a
third party, specifying in reasonable detail the factual basis for the claim.
If the claim relates to an action, suit, or proceeding filed by a third party
against Claimant, such notice shall be given by Claimant within five 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 days to make such investigation of the claim as the Indemnifying
Party deems necessary or desirable. For the purposes of such investigation, the
Claimant agrees to make available to the Indemnifying Party and/or its
authorized representatives the information relied upon by the Claimant to
substantiate the claim. If the Claimant and the Indemnifying Party agree at or
prior to the expiration of the thirty-day period (or any mutually agreed upon
extension thereof) to the validity and amount of such claim, the Indemnifying
Party shall immediately pay to the Claimant the full amount of the claim. If
the Claimant and the Indemnifying Party do not agree within the thirty-day
period (or any mutually agreed upon extension thereof), the Claimant may seek
appropriate remedy at law or equity or under the arbitration provisions of this
Agreement, as applicable.
(c) With respect to any claim by a third party as to which the
Claimant is entitled to indemnification under this Agreement, the Indemnifying
Party shall have the right at its own expense, to participate in or assume
control of the defense of such claim, and the Claimant shall cooperate fully
with the Indemnifying Party, subject to reimbursement for 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,
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the Claimant shall have the right to participate in the defense of such claim
at its own expense. If the Indemnifying Party does not elect to assume control
or otherwise participate in the defense of any third party claim, it shall be
bound by the results obtained by the Claimant with respect to such claim.
(d) If a claim, whether between the parties or by a third party,
requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
(e) The indemnifications rights provided in Sections 10.2 and
10.3 shall extend to the shareholders, directors, officers, employees, and
representatives of any Claimant although for the purpose of the procedures set
forth in this Section 10.4, any indemnification claims by such parties shall be
made by and through the Claimant.
10.5 LIMITATIONS.
(a) No claim may be made against an Indemnifying Party pursuant
to its indemnification obligations set forth in Section 10.2 or 10.3 with
respect to any individual item of damage unless and until (i) the amount of
damages actually incurred by Claimant for any individual matter exceeds $5,000
and (ii) the aggregate of all such damages actually incurred by the Claimant
exceeds $200,000 (the "Threshold Amount") and, at such time as the Claimant's
damages exceed in the aggregate the Threshold Amount, the Claimant shall be
entitled to indemnification for the entire amount of such damages in excess of
$100,000. In the case of any claim for indemnification made by a Claimant to an
Indemnifying Party in which the Claimant asserts for the first time that the
Threshold Amount has been or will be exceeded after or upon satisfaction of the
claim for which the Claimant seeks indemnification, the Claimant shall set
forth in reasonable detail the damages, including the basis therefor, which
have exceeded or which, together with the claim being made, will exceed the
Threshold Amount. The Indemnifying Party's obligation to indemnify the Claimant
and hold it harmless under Section 10.2 or 10.3 shall in no event exceed in the
aggregate $5,000,000. Notwithstanding the foregoing, the limitations set forth
in this Section 10.5(a) shall not apply to claims for indemnification under
Sections 3.13, 3.14, 3.20, 4.4, 10.2(b), 10.2(c), 10.2(d), 10.3(b) and 10.3(c)
hereof or claims for fraud, including claims for costs and expenses incurred in
enforcing such claims.
(b) For purposes of determining the amount of damages incurred
by a Claimant, such damages shall be net of any insurance payment actually
received by the Claimant in compensation for the same damages for which
indemnification is sought and shall be reduced by the amount of any tax
benefits to be realized by the Claimant with respect to the matter which was
the basis for the damages for which indemnification is sought.
10.6 SPECIFIC PERFORMANCE. The parties recognize that if Seller
breaches this Agreement and refuses to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled, in addition to any other
remedies that may be available, including money damages, to
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obtain specific performance of the terms of this Agreement. If any action is
brought by Buyer to enforce this Agreement, Seller shall waive the defense that
there is an adequate remedy at law.
10.7 ATTORNEYS' FEES. In the event of a default by either party which
results in a lawsuit or other proceeding for any remedy available under this
Agreement, the prevailing party shall be entitled to reimbursement from the
other party of its reasonable legal fees and expenses.
SECTION 11. MISCELLANEOUS
11.1 FEES AND EXPENSES. Any federal, state, or local sales or
transfer tax arising in connection with the conveyance of the Assets by Seller
to Buyer pursuant to this Agreement shall be paid by Seller. Buyer and Seller
shall each pay one-half of (i) all fees payable to the Escrow Agent, (ii) all
filing fees required by the FTC under the HSR Act, and (iii) all filing fees
required by the FCC in connection with the FCC Consent. Except as otherwise
provided in this Agreement, each party shall pay its own expenses incurred in
connection with the authorization, preparation, execution, and performance of
this Agreement and the Time Brokerage Agreement, including all fees and
expenses of counsel, accountants, agents, and representatives. Buyer shall pay
at the Closing all brokerage fees and commissions payable to Media Venture
Partners, and each party shall be responsible for all fees or commissions
payable to any other finder, broker, advisor, or similar person retained by or
on behalf of such party.
11.2 NOTICES. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall be (a) in
writing, (b) delivered by personal delivery, or sent by commercial delivery
service or registered or certified mail, return receipt requested, (c) deemed
to have been given on the date of personal delivery or the date set forth in
the records of the delivery service or on the return receipt, and (d) addressed
as follows:
If to Seller: Xxxxxx X. Xxxxxx, President
Boston University Communications, Inc.
0000 Xxxxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
With a copy to: Xxxxxx X. Xxxxx, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
If to Buyer: Roslyck Xxxxxx, President
D P Media of Boston, Inc.
c/o D P Media, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
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With a copy to: Xxxx X. Xxxxxxxx, Esq.
Xxxxx Xxxxxxxx & Tannenwald, P.C.
0000 Xxxxx Xxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
or to any other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
11.2.
11.3 BENEFIT AND BINDING EFFECT. Neither party hereto may assign this
Agreement without the prior written consent of the other party hereto;
provided, however, that Buyer may assign its rights and obligations under this
Agreement, in whole or in part, without seeking or obtaining Seller's prior
approval, to one or more subsidiaries or commonly controlled affiliates of
Buyer or any other party that Buyer reasonably determines is legally and
financially qualified to perform Buyer's obligations hereunder, so long as, in
connection with any such assignment, D P Media, Inc. guarantees the full and
prompt performance by such assignee of Buyer's obligations hereunder. Buyer may
collaterally assign its rights and interests hereunder to its senior lenders
without seeking or obtaining Seller's prior approval. Upon any permitted
assignment by Buyer or Seller in accordance with this Section 11.3, all
references to "Buyer" herein shall be deemed to be references to Buyer's
assignee and all references to "Seller" herein shall be deemed to be references
to Seller's assignee, as the case may be. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
11.4 FURTHER ASSURANCES. The parties shall take any actions and
execute any other documents that may be necessary or desirable to the
implementation and consummation of this Agreement, including, in the case of
Seller, any additional bills of sale, deeds, or other transfer documents that,
in the reasonable opinion of Buyer, may be necessary to ensure, complete, and
evidence the full and effective transfer of the Assets to Buyer pursuant to
this Agreement.
11.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED, AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO THE CHOICE OF LAW PROVISIONS THEREOF).
11.6 HEADINGS. The headings in this Agreement are included for ease
of reference only and shall not control or affect the meaning or construction
of the provisions of this Agreement.
11.7 GENDER AND NUMBER. Words used in this Agreement, regardless of
the gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine, or neuter, and any other number,
singular or plural, as the context requires.
11.8 ENTIRE AGREEMENT. This Agreement, the schedules, hereto, and all
documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively
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represent the entire understanding and agreement between Buyer and Seller with
respect to the subject matter hereof. This Agreement supersedes all prior
negotiations between the parties and cannot be amended, supplemented, or
changed except by an agreement in writing that makes specific reference to this
Agreement and which is signed by the party against which enforcement of any
such amendment, supplement, or modification is sought.
11.9 WAIVER OF COMPLIANCE; CONSENTS. Except as otherwise provided in
this Agreement, any failure of any of the parties to comply with any
obligation, representation, warranty, covenant, agreement, or condition herein
may be waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, representation,
warranty, covenant, agreement, or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any party hereto, such
consent shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in this Section 11.9.
11.10 PRESS RELEASE. Neither party shall publish any press release,
make any other public announcement or otherwise communicate with any news media
concerning this Agreement or the transactions contemplated hereby without the
prior written consent of the other party; provided, however, that nothing
contained herein shall prevent either party from promptly making all filings
with governmental authorities as may, in its judgement be required or advisable
in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
11.11 CONSENT TO JURISDICTION. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of the United States District Court for
the Southern District of New York and the New York County Supreme Court for the
State of New York for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby. Each of
the parties hereto agrees, to the extent permitted under applicable rules of
procedure, to commence any action, suit or proceeding relating hereto either in
the United States District Court for the Southern District of New York, or if
such suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the New York County Supreme Court for the State of
New York. Each of the parties hereto further agrees that service of any
process, summons, notice or document by U.S. certified mail, return receipt
requested, or overnight delivery service (with confirmation of receipt) to such
party's respective address set forth above shall be effective service of
process for any action, suit or proceeding in New York with respect to any
matters to which it has submitted to jurisdiction in this Section 11.11. Each
of the parties hereto irrevocably and unconditionally waives any objection to
the laying of venue of any action, suit or proceeding arising out of this
Agreement or the transactions contemplated hereby in (i) the New York County
Supreme Court for the State of New York, or (ii) the United States District
Court for the Southern District of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient form.
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11.12 COUNTERPARTS. This Agreement may be signed in counterparts with
the same effect as if the signature on each counterpart were upon the same
instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
D P MEDIA OF BOSTON, INC.
By: /s/
--------------------------------
Name:
Title:
BOSTON UNIVERSITY COMMUNICATIONS, INC.
By:
--------------------------------
Name:
Title:
48
IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
D P MEDIA OF BOSTON, INC.
By:
--------------------------------
Name:
Title:
BOSTON UNIVERSITY COMMUNICATIONS, INC.
By: /s/
--------------------------------
Name:
Title:
49
D P MEDIA LICENSE OF
BOSTON, INC. HEREBY JOINS
IN THE EXECUTION OF THIS
ASSET PURCHASE AGREEMENT
FOR THE PURPOSE OF
AGREEING TO THE PROVISIONS
OF SECTION 10 HEREOF.
D P MEDIA LICENSE OF BOSTON, INC.
By: /s/ Roslyck Xxxxxx
------------------------------
Name: Roslyck Xxxxxx
Title: President
