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EXHIBIT 10.209
ASSET PURCHASE AGREEMENT
BY AND AMONG
XXXXXX COMMUNICATIONS CORPORATION
AND
D P MEDIA, INC.; D P MEDIA OF BATTLE CREEK, INC.; D P MEDIA LICENSE OF BATTLE
CREEK, INC.; D P MEDIA OF BOSTON, INC.; D P MEDIA LICENSE OF BOSTON, INC.; D P
MEDIA OF MARTINSBURG, INC.; D P MEDIA LICENSE OF MARTINSBURG, INC.; D P MEDIA OF
MILWAUKEE, INC.; D P MEDIA LICENSE OF MILWAUKEE, INC.; D P MEDIA OF XXXXXXX
XXXXXX, INC.; D P MEDIA LICENSE OF XXXXXXX XXXXXX, INC.; D P MEDIA OF ST. LOUIS,
INC.; D P MEDIA LICENSE OF ST. LOUIS, INC.; RDP COMMUNICATIONS, INC.; RDP
COMMUNICATIONS OF INDIANAPOLIS, INC.; RDP COMMUNICATIONS LICENSE OF
INDIANAPOLIS, INC.; CAP COMMUNICATIONS, INC.; CAP COMMUNICATIONS OF NEW LONDON,
INC.; CAP COMMUNICATIONS LICENSE OF NEW LONDON, INC.; CAP COMMUNICATIONS OF
BOSTON, INC.; CHANNEL 66 OF TAMPA, INC.; AND CHANNEL 46 OF BOSTON, INC.
NOVEMBER 21, 1999
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS....................................................................................3
SECTION 2. PURCHASE AND SALE OF ASSETS...................................................................11
2.1 Agreement to Sell and Buy.....................................................................11
2.2 Excluded Assets...............................................................................11
2.3 Assumption of Liabilities and Obligations.....................................................12
2.4 Purchase Price................................................................................12
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLERS.....................................................16
3.1 Organization, Standing, and Authority.........................................................16
3.2 Authorization and Binding Obligation..........................................................16
3.3 Absence of Conflicting Agreements.............................................................16
3.4 Licenses......................................................................................17
3.5 Contracts.....................................................................................17
3.6 Consents......................................................................................18
3.7 Reports.......................................................................................18
3.8 Taxes.........................................................................................18
3.9 Claims and Legal Actions......................................................................19
3.10 Compliance with Laws..........................................................................19
3.11 Insurance.....................................................................................19
3.12 Real Property Interests.......................................................................19
3.13 Title to Properties...........................................................................19
3.14 Financial Statements..........................................................................19
3.15 Undisclosed Liabilities.......................................................................20
3.16 Accounts Receivable...........................................................................20
3.17 Capital.......................................................................................20
3.18 Tangible Personal Property....................................................................21
3.19 Loan Documents................................................................................21
3.20 Environmental Matters.........................................................................21
3.21 Personnel and Benefits; Labor.................................................................22
3.22 Intangibles...................................................................................24
3.23 Full Disclosure...............................................................................24
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER.......................................................24
4.1 Organization, Standing, and Authority.........................................................24
4.2 Authorization and Binding Obligation..........................................................24
4.3 Absence of Conflicting Agreements.............................................................25
4.4 Buyer Qualifications..........................................................................25
4.5 Full Disclosure...............................................................................25
SECTION 5. OPERATIONS PRIOR TO CLOSING...................................................................25
5.1 Generally.....................................................................................25
5.2 Compensation..................................................................................25
5.3 Contracts.....................................................................................25
5.4 Disposition of Assets.........................................................................26
5.5 Encumbrances..................................................................................26
5.6 Rights........................................................................................26
5.7 Insurance.....................................................................................26
5.8 Access to Information.........................................................................26
5.9 Consents......................................................................................26
5.10 Books and Records.............................................................................26
5.11 Compliance with Laws..........................................................................26
5.12 Mergers.......................................................................................26
5.13 Indebtedness and Obligations..................................................................26
5.14 Amendments....................................................................................27
5.15 Securities....................................................................................27
5.16 Maintenance of Assets.........................................................................27
5.17 Preservation of Business......................................................................27
5.18 Licenses......................................................................................27
5.19 No Inconsistent Action........................................................................27
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS..............................................................28
6.1 FCC Consents..................................................................................28
6.2 Risk of Loss..................................................................................28
6.3 Confidentiality...............................................................................29
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TABLE OF CONTENTS
(continued)
PAGE
6.4 Cooperation...................................................................................29
6.5 Restricted Payment............................................................................29
6.6 HSR Act Filing................................................................................29
6.7 Environmental Reports.........................................................................30
6.8 Stock Purchase................................................................................30
6.9 Fair Market Value Determination...............................................................30
6.10 Boston Purchase...............................................................................31
6.11 Cure..........................................................................................32
6.12 Control of the Station........................................................................32
6.13 Sales Tax Filings.............................................................................32
6.14 Access to Books and Records...................................................................32
6.15 Appraisal.....................................................................................33
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLERS AT CLOSING.....................................33
7.1 Conditions to Obligations of Buyer............................................................33
7.2 Conditions to Obligations of Sellers..........................................................34
SECTION 8. CLOSING AND CLOSING DELIVERIES................................................................34
8.1 Closing.......................................................................................34
8.2 Deliveries by Sellers.........................................................................35
8.3 Deliveries by Buyer...........................................................................36
SECTION 9. TERMINATION...................................................................................36
9.1 Termination by Sellers........................................................................36
9.2 Termination by Buyer..........................................................................37
9.3 Rights on Termination.........................................................................38
9.4 Option........................................................................................38
9.5 Limitation....................................................................................39
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; CERTAIN REMEDIES.................39
10.1 Representations and Warranties................................................................39
10.2 Indemnification by Sellers....................................................................40
10.3 Indemnification by Buyer......................................................................40
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TABLE OF CONTENTS
(continued)
PAGE
10.4 Procedure for Indemnification.................................................................41
10.5 Limitations on Indemnification................................................................42
10.6 Specific Performance..........................................................................42
10.7 Attorneys' Fees...............................................................................42
SECTION 11. MISCELLANEOUS.................................................................................42
11.1 Fees and Expenses.............................................................................42
11.2 Arbitration...................................................................................42
11.3 Notices.......................................................................................43
11.4 Benefit and Binding Effect....................................................................44
11.5 Further Assurances............................................................................44
11.6 Governing Law.................................................................................45
11.7 Headings......................................................................................45
11.8 Gender and Number.............................................................................45
11.9 Entire Agreement..............................................................................45
11.10 Waiver of Compliance; Consents................................................................45
11.11 Press Release.................................................................................45
11.12 Consent to Jurisdiction and Service of Process................................................45
11.13 No Recourse...................................................................................46
11.14 Revised Schedules.............................................................................46
11.15 Counterparts..................................................................................46
11.16 Time Brokerage Agreement Fee..................................................................47
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LIST OF SCHEDULES AND EXHIBITS
Schedule 2.2 -- Excluded Assets
Schedule 3.3 -- Sellers' Consents
Schedule 3.4 -- Licenses
Schedule 3.5 -- Contracts
Schedule 3.8 -- Tax Matters
Schedule 3.9 -- Litigation
Schedule 3.11 -- Insurance
Schedule 3.12 -- Real Property
Schedule 3.13 -- Exception to Title
Schedule 3.15 -- Liabilities
Schedule 3.18 -- Tangible Personal Property
Schedule 3.21 -- Personnel and Benefits; Labor
Schedule 3.22 -- Intangibles
Schedule 4.3 -- Buyer's Consents
Schedule 8.2(h) -- Opinion of Sellers' Counsel
Schedule 8.3(d) -- Opinion of Buyer's Counsel
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is dated as of the 21st day of November,
1999, by and among D P MEDIA, INC., a Florida corporation (the "Company"); each
subsidiary of the Company listed under the heading "Sellers" on the signature
pages hereto (such subsidiaries, together with the Company, are individually, a
"Seller" and collectively, the "Sellers"), and XXXXXX COMMUNICATIONS
CORPORATION, a Delaware corporation ("Buyer").
R E C I T A L S
A. The Company owns all of the issued and outstanding capital
stock of:
(i) D P Media of Xxxxxxx Xxxxxx, Inc., a Florida corporation
("D P Xxxxxxx Xxxxxx"), which, in turn, owns all of the issued and outstanding
capital stock of D P Media License of Xxxxxxx Xxxxxx, Inc., a Florida
corporation ("Raleigh License"), which, together with D P Xxxxxxx Xxxxxx owns
and operates television station WRPX(TV), Rocky Mount, North Carolina
("WRPX(TV)"), pursuant to licenses issued to Raleigh License by the Federal
Communications Commission ("FCC");
(ii) D P Media of Martinsburg, Inc., a Florida corporation ("D
P Martinsburg"), which, in turn, owns all of the issued and outstanding capital
stock of D P Media License of Martinsburg, Inc., a Florida corporation
("Martinsburg License"), which, together with D P Martinsburg, owns and operates
television station WWPX(TV), Martinsburg, West Virginia ("WWPX(TV)"), pursuant
to licenses issued to Martinsburg License by the FCC;
(iii) D P Media of St. Louis, Inc., a Florida corporation ("D
P St. Louis"), which, in turn, owns all of the issued and outstanding capital
stock of D P Media License of St. Louis, Inc., a Florida corporation ("St. Louis
License"), which, together with D P St. Louis, owns and operates television
station WPXS(TV), Mt. Xxxxxx, Illinois, and low power television station K40FF,
St. Louis, Missouri (collectively, "WPXS(TV)"), pursuant to licenses issued to
St. Louis License by the FCC;
(iv) D P Media of Battle Creek, Inc., a Florida corporation
("D P Battle Creek"), which, in turn, owns all of the issued and outstanding
capital stock of D P Media License of Battle Creek, Inc., a Florida corporation
("Battle Creek License"), which, together with D P Battle Creek, owns and
operates television station WZPX(TV), Battle Creek, Michigan ("WZPX(TV)"),
pursuant to licenses issued to Battle Creek License by the FCC;
(v) D P Media of Milwaukee, Inc., a Florida corporation ("D P
Milwaukee"), which, in turn, owns all of the issued and outstanding capital
stock of D P Media License of Milwaukee, Inc., a Florida corporation ("Milwaukee
License"), which, together with D P Milwaukee, owns and operates television
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station WPXE(TV), Kenosha, Wisconsin ("WPXE(TV)"), pursuant to licenses issued
to Milwaukee License by the FCC;
(vi) RDP Communications, Inc., a Florida corporation ("RDP"),
which, in turn, owns all of the issued and outstanding capital stock of RDP
Communications of Indianapolis, Inc., a Florida corporation ("RDP
Indianapolis"), which, in turn, is the owner of all of the issued and
outstanding capital stock of RDP Communications License of Indianapolis, Inc., a
Florida corporation ("Indianapolis License"), which, together with RDP
Indianapolis, owns and operates television station WIPX(TV), Bloomington,
Indiana ("WIPX(TV)"), pursuant to licenses issued to Indianapolis License by the
FCC;
(vii) CAP Communications, Inc., a Florida corporation ("CAP"),
which, in turn, owns all of the issued and outstanding capital stock of CAP
Communications of New London, Inc., a Florida corporation ("CAP New London"),
which, in turn, owns all of the issued and outstanding capital stock of CAP
Communications License of New London, Inc., a Florida corporation ("New London
License"), which, together with CAP New London, owns and operates television
station WHPX(TV), New London, Connecticut ("WHPX(TV)"), pursuant to licenses
issued to New London License by the FCC;
(viii) CAP, which, in turn, also owns all of the issued and
outstanding capital stock of CAP Communications of Boston, Inc., a Florida
corporation ("CAP Boston"), which, in turn, owns all of the issued and
outstanding capital stock of Channel 66 of Tampa, Inc., a Florida corporation
("Channel 66"), which, in turn, owns all of the issued and outstanding capital
stock of Channel 46 of Boston, Inc., a Florida corporation ("Norwell License"),
which, together with CAP Boston and Channel 66, own and operate television
station WWDP(TV), Norwell, Massachusetts ("WWDP(TV)"), pursuant to licenses
issued to Norwell License by the FCC; and
(ix) D P Media of Boston, Inc., a Florida corporation ("D P
Boston"), which, in turn, owns all of the issued and outstanding capital stock
of D P Media License of Boston, Inc., a Florida corporation ("Boston License"),
which is the proposed assignee of the licenses issued by the FCC for television
stations WBPX(TV), Boston, Massachusetts ("WBPX(TV)"), WDPX(TV), Vineyard Haven,
Massachusetts ("WDPX(TV)"), WPXG(TV), Concord; New Hampshire ("WPXG(TV)"), and
low power television station W33BZ, Dennis, Massachusetts ("W33BZ").
B. Buyer shall loan to the Company One Hundred Five Million Nine
Hundred Ninety-Seven Thousand Sixteen and 37/100 Dollars ($105,997,016.37)
pursuant to the terms of a Credit Agreement dated as of the date hereof between
Buyer and the Company (the "Credit Agreement"), and the Company shall deliver to
Buyer its Promissory Note in the principal amount of such loan (the "Note").
C. Buyer and National Broadcasting Company, Inc. ("NBC") are
parties to an Investment Agreement dated as of September 15, 1999, which
requires, among other things, that Buyer obtain NBC's consent to the
transactions contemplated by this Agreement and various agreements contemplated
hereby. Subject to the condition described in Section 6.9, NBC has provided such
consent.
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X. Xxxxxxx desire to sell, and Buyer desires to buy,
substantially all of the assets 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, Buyer and Sellers 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:
"AAA" means the American Arbitration Association.
"Accounts Receivable" means the rights of Sellers as of the Closing
Date to payment for (i) the sale of advertising and program time broadcast on
the Stations prior to the Closing Date, and (ii) other goods and services
provided by Sellers with respect to the Stations prior to the Closing Date.
"Affiliate" means (a) any Person that directly or indirectly, through
one or more intermediaries, controls, is controlled by or is under common
control with another Person, or (b) an officer or director of an affiliate
within the meaning of (a) above.
"Appraisal Trigger Date" has the meaning set forth in Section 9.4(b).
"Arbitration Panel" has the meaning set forth in Section 2.4.
"Assets" means the assets of Sellers as specified in Section 2.2.
"Asset Subsidiaries" means D P Raleigh Xxxxxx, X X Martinsburg, D P St.
Louis, D P Battle Creek, D P Milwaukee, D P Boston, RDP Indianapolis, CAP New
London, CAP Boston and Channel 66 collectively, and "Asset Subsidiary" means any
one of the Asset Subsidiaries individually.
"Assumed Contracts" means (i) those Contracts listed on SCHEDULE 3.5
that are specifically designated as Contracts that will be assumed by Buyer at
Closing, (ii) Contracts entered into in the ordinary course of business with
advertisers for the sale of advertising or program time on the Stations for cash
at rates consistent with past practices and which may be cancelled by the
Stations without penalty on not more than thirty (30) days' notice, (iii) other
Contracts entered into by the Company or any Subsidiary between the date hereof
and the Closing Date in the ordinary course of business consistent with past
practices that do not involve obligations or liabilities in excess of Five
Thousand Dollars ($5,000) for each such Contract or Fifty Thousand Dollars
($50,000) for all such Contracts in the aggregate, and (iv) Contracts entered
into by Sellers between the date hereof and Closing that Buyer agrees to assume
in writing (the Contracts described in clauses (ii), (iii) and (iv) are
collectively, the "Permitted Contracts").
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"Battle Creek License" has the meaning set forth in the Recitals.
"Borrower's Security Agreement" means the Security and Pledge Agreement
dated as of November 21, 1999, by and between the Company and Buyer.
"Boston Affiliation Agreement" means the PAX TV Network Affiliation
Agreement dated as of the date hereof, by and between Xxxxxx Communications
Corporation d/b/a PAX NET, Inc. and D P Boston and Boston License.
"Boston Escrow Agreement" means the Escrow Agreement dated as of April
30, 1999, by and among D P Boston, Boston University Communications, Inc. and
First Union National Bank.
"Boston License" has the meaning set forth in the Recitals.
"Boston Purchase Agreement" means the Asset Purchase Agreement dated as
of April 30, 1999, by and between D P Boston and Boston University
Communications, Inc.
"Boston Purchase Documents" means collectively, the Boston Purchase
Agreement, the Boston Escrow Agreement and the Boston Time Brokerage Agreement.
"Boston Time Brokerage Agreement" means the Time Brokerage Agreement
dated as of April 30, 1999, by and between D P Boston and Boston University
Communications, Inc.
"Boston University" has the meaning set forth in Section 6.10.
"Buyer" has the meaning set forth in the Preamble.
"Buyer Ancillary Agreements" means the Time Brokerage Agreements,
Boston Affiliation Agreement, Loan Documents, and all other agreements and
instruments to be executed and delivered by Buyer pursuant hereto.
"Cancelled Debt" has the meaning set forth in Section 2.3.
"CAP" has the meaning set forth in the Recitals.
"CAP Boston" has the meaning set forth in the Recitals.
"CAP New London" has the meaning set forth in the Recitals.
"Cash Balance" has the meaning set forth in Section 2.4.
"Channel 66" has the meaning set forth in the Recitals.
"Claimant" has the meaning set forth in Section 10.4.
"Closing" means the consummation of the purchase and sale of the Assets
pursuant to this Agreement in accordance with the provisions of Section 8.
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"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
"Company" has the meaning set forth in the Preamble.
"Company Material Adverse Effect," when used in Section 3 hereof, means
one or more events or circumstances that have resulted or could reasonably be
expected to result in loss, liability or damages with respect to the Assets or
the business, operations or financial condition of one or more Stations in an
amount in excess of Twenty-Five Thousand Dollars ($25,000) and, when used in
clause (iii) of Section 7.1(a), Section 7.1(e) and Section 9.2(g) hereof, means
one or more events or circumstances that have resulted or could reasonably be
expected to result in loss, liability or damages with respect to the Assets or
the business, operations or financial condition of one or more Stations in an
amount in excess of Two Hundred Fifty Thousand Dollars ($250,000), provided that
any loss, liability or damages to the Assets or to one or more of the Stations
directly or indirectly attributable to Buyer or an Affiliate of Buyer under one
or more of the Time Brokerage Agreements, the Programming Agreement or under the
Boston Affiliation Agreement, as defined below, shall not constitute a Company
Material Adverse Effect.
"Company Member" has the meaning set forth in Section 2.4(a).
"Consents" means all consents, permits, approvals or notices to or
filings with governmental authorities and other third parties necessary to
transfer the Assets to Buyer or otherwise to consummate the transactions
contemplated by this Agreement.
"Contracts" means, other than the Company's Lease Agreement for its
corporate headquarters located in Palm Beach, Florida, 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 the Company or any
Subsidiary is a party or which are binding upon the Company or any Subsidiary
and which relate to or affect the Assets or the business or operations of the
Stations, and (i) which are in effect on the date of this Agreement or (ii)
which are entered into by the Company or any Subsidiary between the date of this
Agreement and the Closing Date in accordance with Section 5.3 hereof.
"Deficit Capital Amount" has the meaning set forth in Section 3.17.
"DOJ" means the United States Department of Justice.
"D P Battle Creek" has the meaning set forth in the Recitals.
"D P Boston" has the meaning set forth in the Recitals.
"D P Martinsburg" has the meaning set forth in the Recitals.
"D P Milwaukee" has the meaning set forth in the Recitals.
"D P Xxxxxxx Xxxxxx" has the meaning set forth in the Recitals.
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"D P St. Louis" has the meaning set forth in the Recitals.
"DPC Trust" means The Xxxxx Xxxxxx Irrevocable Children's Trust,
Roslyck Xxxxxx as sole Trustee.
"Existing Phase I Reports" has the meaning set forth in Section 6.7.
"Fair Market Value" has the meaning set forth in Section 6.9.
"FCC" has the meaning set forth in the Recitals.
"FCC Consents" means actions by the FCC granting its consents to the
assignment of the FCC Licenses from the applicable License Subsidiary to Buyer.
"FCC Licenses" means all Licenses issued by the FCC to the Company or
any Subsidiary in connection with the business or operations of the Stations.
"Final Order" and "Final Orders" mean an action or actions by the FCC
that have 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 or actions on
its own motion have expired.
"Financial Statements" has the meaning set forth in Section 3.14.
"FTC" means the United States Federal Trade Commission.
"GAAP" means generally accepted accounting principles, as in effect
from time to time, applied on a consistent basis.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"Indemnifying Party" has the meaning set forth in Section 10.4.
"Indemnity Period" has the meaning set forth in Section 10.1.
"Independent Member" has the meaning set forth in Section 2.4(a).
"Indianapolis License" has the meaning set forth in the Recitals.
"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 applied for, issued
to, or owned by the Company or any Subsidiary or under which the Company or any
Subsidiary is licensed or franchised and that are used or useful in the business
and operations of any Station, together with any additions thereto between the
date of this Agreement and the Closing Date.
"IRS" means the United States Internal Revenue Service.
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"JLP Trust" means The Private Capital Group of STI Capital Management,
N.A. as Trustee of The Xxxxx Xxxxxx Xxxxxx Support Trust dated November 1, 1994.
"Licenses" means all licenses, permits, and other authorizations issued
by the FCC, the Federal Aviation Administration, or any other federal, state, or
local governmental authority in connection with the conduct of the business or
operations of the Stations, together with any additions thereto between the date
of this Agreement and the Closing Date.
"License Subsidiaries" means Raleigh License, Martinsburg License, St.
Louis License, Battle Creek License, Milwaukee License, Indianapolis License,
New London License, Boston License and Norwell License collectively, and
"License Subsidiary" means
any one of the License Subsidiaries individually.
"Limited Recourse Agreement" means the Limited Recourse Guaranty and
Pledge Agreement dated as of November 21, 1999, made by the shareholders of the
Company to and with Buyer.
"Loan Documents" means collectively, the Credit Agreement, Note,
Borrower's Security Agreement, Limited Recourse Agreement, Subordination
Agreement and Subsidiary Guaranty.
"Martinsburg License" has the meaning set forth in the Recitals.
"Milwaukee License" has the meaning set forth in the Recitals.
"NBC" means the National Broadcasting Company, Inc.
"NBC Advisors" has the meaning set forth in Section 6.9.
"NBC Member" has the meaning set forth in Section 2.4(a).
"NBC Valuation Report" has the meaning set forth in Section 6.9.
"NBC Valuation Report Deadline" has the meaning set forth in Section
6.9.
"New Liabilities" has the meaning set forth in Section 11.14.
"New London License" has the meaning set forth in the Recitals.
"Norwell License" has the meaning set forth in the Recitals.
"Note" has the meaning set forth in the Recitals.
"Option" has the meaning set forth in Section 9.4(a).
"Option Purchase Agreement" has the meaning set forth in
Section 9.4(a).
"Panel Valuation Report" has the meaning set forth in Section 2.4.
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"Party" and "Parties" have the meanings set forth in Section 2.4.
"Permitted Contracts" has the meaning set forth in the definition of
"Assumed Contracts."
"Person" means an individual, corporation, association, partnership,
joint venture, trust, estate, limited liability company, limited liability
partnership, or other entity or organization.
"Petition" has the meaning set forth in Section 8.1.
"Phase II Report" has the meaning set forth in Section 6.7.
"Prepayment" has the meaning set forth in Section 2.4(d).
"Programming Agreement" means the Programming Agreement dated as of
June 7, 1999, between Buyer D/B/A PAXNET, Inc. and Norwell License.
"Purchase Price" means the purchase price specified in Section 2.3.
"Raleigh License" has the meaning set forth in the Recitals.
"Real Property Interests" means, other than the Company's interests in
its corporate headquarters located in Palm Beach, Florida, all interests in real
property, including fee estates, leaseholds and subleaseholds, purchase options,
easements, licenses, rights to access, and rights of way, and all buildings and
other improvements thereon, owned or held by any Subsidiary that are used or
useful in the business or operations of any Station, together with any additions
thereto between the date of this Agreement and the Closing Date.
"Reduction Notice" has the meaning set forth in Section 11.14.
"RDP" has the meaning set forth in the Recitals.
"RDP Indianapolis" has the meaning set forth in the Recitals.
"RPC Trust" means The Roslyck Xxxxxx Irrevocable Children's Trust,
Xxxxx Xxxxxx as sole Trustee.
"Second Option Period" has the meaning set forth in Section 9.4(b).
"Seller" and "Sellers" have the meanings set forth in the Preamble.
"Seller Ancillary Agreements" means the Time Brokerage Agreements,
Boston Affiliation Agreement, Loan Documents, and all other agreements and
instruments to be executed and delivered by Sellers thereto or hereto.
"Sellers Statement" has the meaning set forth in Section 2.4(f).
"Signing Date" has the meaning set forth in Section 11.14.
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"St. Louis License" has the meaning set forth in the Recitals.
"Stations" means collectively, WRPX(TV), WWPX(TV), WPXS(TV), WZPX(TV),
WPXE(TV), WIPX(TV), WHPX(TV), and WWDP(TV) collectively, and "Station" means any
one of the Stations individually.
"Subordination Agreement" means the Subordination Agreement dated as of
November 21, 1999, by and among Sellers, Buyer and the shareholders of the
Company.
"Subsidiaries" means collectively, RDP, CAP, the Asset Subsidiaries and
License Subsidiaries and "Subsidiary" means RDP, CAP, any Asset Subsidiary or
License Subsidiary, individually.
"Subsidiary Guaranty" means the Subsidiary Guaranty, Security and
Pledge Agreement dated as of November 21, 1999, made by Sellers to and with
Buyer.
"Tangible Personal Property" means, other than the tangible personal
property located at the Company's corporate headquarters in Palm Beach, Florida,
all machinery, equipment, tools, vehicles, furniture, leasehold improvements,
office equipment, plant, inventory, spare parts, and other tangible personal
property owned or held by the Company and any Subsidiary that is used or useful
in the conduct of the business or operations of any Station, together with any
additions thereto between the date of this Agreement and the Closing Date.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means all
federal, state, local or foreign income, gross receipts, windfall profits,
severance, property, production, sales, use, license, excise, franchise,
capital, transfer, employment, withholding and other taxes and assessments,
together with any interest, additions or penalties with respect thereto and any
interest with respect to such additions or penalties.
"Tax Returns" means all federal, state, local and foreign income and
franchise Tax returns and Tax reports (including any attached schedules) and
other Tax statements and other similar filings required to be filed, including,
any information return, claim for refund, amended return or declaration of
estimated Tax.
"Termination Notice" has the meaning set forth in Section 11.14.
"Time Brokerage Agreements" means collectively, the Time Brokerage
Agreement dated as of November 21, 1999, between Raleigh License and a
subsidiary of Buyer; the Time Brokerage Agreement dated as of November 21, 1999,
between Martinsburg License and a subsidiary of Buyer; the Time Brokerage
Agreement dated as of November 21, 1999, between St. Louis License and a
subsidiary of Buyer; the Time Brokerage Agreement dated as of November 19, 1999,
between Battle Creek License and a subsidiary of Buyer; the Time Brokerage
Agreement dated as of November 21, 1999, between Milwaukee License and a
subsidiary of Buyer; the Time Brokerage Agreement dated as of November 21, 1999,
between Indianapolis License and a subsidiary of Buyer; the Time Brokerage
Agreement dated as of November 21, 1999, between New London License and a
subsidiary of Buyer; and the Time Brokerage Agreement dated as of November 21,
1999, between Norwell License and a subsidiary of Buyer.
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"Time Brokerage Agreements Fee" has the meaning set forth in Section
11.16.
"TLP Trust" means The Private Capital Group of STI Capital Management,
N.A. as Trustee of The Xxxx Xxxxxx Xxxxxx Support Trust dated November 1, 1994.
"To the best knowledge of the Company" means to the actual knowledge of
Xxxxx Xxxxxx, Roslyck Xxxxxx or Xxxxxx Xxxx following reasonable inquiry.
"Trust Agreements" means collectively, the Trust Agreement for the TLP
Trust; the Trust Agreement for the JLP Trust; the Trust Agreement for the DPC
Trust; the Trust Agreement for the RPC Trust.
"Trusts" means collectively, the DPC Trust, the JLP Trust, the RPC
Trust and the TLP Trust.
"Updated Reports" has the meaning set forth in Section 6.7.
"Verified Capital Amount" has the meaning set forth in Section 3.17.
"W33BZ" has the meaning set forth in the Recitals.
"WBPX(TV)" has the meaning set forth in the Recitals.
"WDPX(TV)" has the meaning set forth in the Recitals.
"WEBZ(FM) Distribution" has the meaning set forth in Section 2.2(a).
"WHPX(TV)" has the meaning set forth in the Recitals.
"WIPX(TV)" has the meaning set forth in the Recitals.
"WPXE(TV)" has the meaning set forth in the Recitals.
"WPXG(TV)" has the meaning set forth in the Recitals.
"WPXS(TV)" has the meaning set forth in the Recitals.
"WRPX(TV)" has the meaning set forth in the Recitals.
"WWDP(TV)" has the meaning set forth in the Recitals.
"WWPX(TV)" has the meaning set forth in the Recitals.
"WZPX(TV)" has the meaning set forth in the Recitals.
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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, each Seller hereby agrees to sell, transfer, and
deliver to Buyer on the Closing Date, and Buyer agrees to purchase on the
Closing Date, all of the tangible and intangible assets used or useful in
connection with the conduct of the business or operations of each Station,
together with any additions thereto between the date of this Agreement and the
Closing Date, but excluding the assets described in Section 2.2, free and clear
of any claims, liabilities, security interests, mortgages, liens, pledges,
conditions, charges, or encumbrances of any nature whatsoever, other than liens
granted to Buyer pursuant to the Loan Documents, including the following:
(a) the Tangible Personal Property;
(b) the Real Property Interests;
(c) the Licenses;
(d) the Assumed Contracts;
(e) the Intangibles;
(f) all of the Company's and each Subsidiary'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 any
Station;
(g) all choses in action of the Company and each Subsidiary
relating to any Station;
(h) all books and records of each Station, including
executed copies of the Contracts and all records required by the FCC to be
kept by each Station;
(i) all Accounts Receivable arising on or prior to the
Closing Date; and
(j) the Company's and each Subsidiary's cash, cash
equivalents, and marketable securities on hand as of the Closing, and all
other cash in any of the Company's and each Subsidiary's bank accounts any and
all insurance policies, bonds, letters of credit, or other similar items, any
cash surrender value in regard thereto, and any and all claims receivable under
any and all insurance policies.
2.2 EXCLUDED ASSETS. The Assets shall exclude the following
assets:
(a) any amount paid to D P Media of Panama City, Inc. and D
P Media License of Panama City, Inc. upon the assignment of the licenses for
radio station WEBZ(FM), Panama City, Florida, to Jacor Licensee of Louisville
II, Inc. (the "WEBZ(FM) Distribution");
(b) all or any portion of the Time Brokerage Agreements Fee;
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(c) all books and records that any Seller is required by law
to retain and that pertain to such Seller's corporate organization;
(d) any pension, profit-sharing or employee benefit plans,
and any collective bargaining agreements; and
(e) all property listed on SCHEDULE 2.2 hereto.
2.3 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 Sellers under the Licenses and the Assumed
Contracts insofar as they relate to the time on and after the Closing Date, and
arise out of events related to Buyer's ownership of the Assets or its operation
of a Station on or after the Closing Date. Buyer shall not assume any other
obligations or liabilities of Seller, including (i) any obligations or
liabilities under any Contract not included in the Assumed Contracts, (ii) any
obligations or liabilities under the Assumed Contracts relating to the period
prior to the Closing Date, unless such obligation relates to Buyer's programming
of the Stations under the Time Brokerage Agreements, the Programming Agreement
or the Boston Affiliation Agreement, (iii) any claims or pending litigation or
proceedings relating to the operation of a Station prior to the Closing, unless
such obligation relates to Buyer's programming of the Stations under the Time
Brokerage Agreements, the Programming Agreement or the Boston Affiliation
Agreement, (iv) any obligations or liabilities arising under capitalized leases
or other financing agreements, (v) any obligations or liabilities arising under
agreements entered into other than in the ordinary course of business, (vi) any
obligations or liabilities of any Seller under any employee pension, retirement,
health and welfare or other benefit plans or collective bargaining agreements,
(vii) any obligation to any employee of any Station 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 any Seller prior to the Closing, and all such obligations
and liabilities shall remain and be the obligations and liabilities solely of
Sellers.
2.4 PURCHASE PRICE.
(a) AMOUNT. The purchase price for the Assets (the "Purchase
Price") shall be determined in accordance with the provisions of this
Section 2.4(a).
(i) NEGOTIATED PRICE. As soon as practicable following
the date hereof, NBC shall notify the Company in writing of a proposed purchase
price for the Stations, and thereafter the Company and NBC shall negotiate in
good faith and use commercially reasonable efforts to agree upon, no later than
December 30, 1999, the purchase price for the Assets. Buyer and the Company
agree that, commencing on the date hereof, NBC and NBC's Advisors shall have the
access rights set forth in Section 6.9 for the purpose of negotiating the
purchase price as contemplated by this Section 2.4(a)(i). If NBC and the Company
agree upon the purchase price on or before December 30, 1999, such purchase
price shall be set forth in an amendment to this Agreement signed by Buyer,
Sellers and NBC. Buyer, Sellers and NBC agree that such agreed upon purchase
price shall be the Purchase Price for all purposes under this Agreement and the
remaining provisions of this Section 2.4(a) shall have no force or effect.
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(ii) ARBITRATION PANEL. If, on or before December 30,
1999, NBC and the Company have not agreed on the purchase price and this
Agreement has not been amended in accordance with the procedure set forth in
Section 2.4(a)(i), NBC, Buyer and the Company (individually, a "Party" and
collectively, the "Parties") agree that the Purchase Price shall be determined
by a panel of three (3) individuals (the "Arbitration Panel"). NBC shall select
one member of the Arbitration Panel (the "NBC Member"), the Company shall select
one member of the Arbitration Panel (the "Company Member"), and the third member
of the Arbitration Panel (the "Independent Member") shall be selected by the NBC
Member and the Company Member. Both the NBC Member and the Company Member shall
be selected by January 14, 2000, and each Party shall provide to the other
prompt written notice of the identity of its designee. If the NBC Member and the
Company Member have not selected the Independent Member on or before January 28,
2000, the Independent Member shall be selected no later than February 11, 2000,
in accordance with the procedures for the selection of independent arbitrators
set forth in the Commercial Arbitration Rules of the American Arbitration
Association ("AAA"). Any request to the AAA for the selection of the Independent
Member may be submitted by either the NBC Member or the Company Member after
January 28, 2000, and shall be submitted to the AAA in Washington, D.C. Each
member of the Arbitration Panel, whether selected by the Parties, jointly by the
NBC Member and the Company Member or designated by the AAA, shall have
experience in the valuation of broadcast properties, but, other than the
Independent Member, need not be a professional arbitrator, and shall not be, or
have been during the past twelve (12) months, an employee, officer, director of,
or a consultant or provider of other services to, any Party or any Affiliate of
any Party.
(iii) VALUATION MATERIALS. On or before February 18,
2000, each Party shall submit to the Arbitration Panel such Party's proposed
fair market value of the Assets and any written materials that such Party deems
appropriate to support such value. Each Party shall simultaneously furnish to
the other Parties a copy of all such written materials submitted to the
Arbitration Panel. At any time on or before March 10, 2000, the Arbitration
Panel may request additional written information from any Party with respect to
such Party's valuation proposal, which information must be submitted to the
Arbitration Panel within five (5) business days after the request. Each Party
shall simultaneously furnish to the other Parties a copy of any such additional
written information.
(iv) PURCHASE PRICE DETERMINATION. The Purchase Price
shall be the value of the Stations as of the date hereof as determined by the
Arbitration Panel, taking into account the written submissions supplied by the
Parties pursuant to Section 2.4(a)(iii). The value of the Stations shall be
determined on a going-concern basis taking into account all relevant factors,
including among other things, the value of the Stations' Assets (but not the
assets listed in Section 2.2 hereof), the Stations' obligations and liabilities,
including the Stations' obligations and liabilities under their existing
affiliation and services agreements, the Verified Capital Amount, the return the
Company could have reasonably expected, the circumstances under which Buyer and
Sellers entered into this Agreement, and exclusive of any brokers' fees or
commissions. Such value shall be determined in accordance with standard
appraisal techniques in use at the time of the determination, taking into
account applicable market and economic factors in effect as of the date hereof
and such other factors that might reasonably affect the sales price of the
Stations. The value shall not be reduced by any portion of the indebtedness
represented by the Note. The Arbitration Panel shall notify each Party in
writing of the value of the Stations determined in accordance with the
requirements of this Section 2.4(a) as soon as practicable, but in no event
later than April 7, 2000, and shall specify in reasonable detail the basis for
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such determination (the "Panel Valuation Report"). The Arbitration Panel's
determination of the Purchase Price shall be final and binding upon the Parties
for all purposes under this Agreement. The cost and expenses of the Arbitration
Panel shall be paid one-half by Buyer and one-half by Sellers.
(b) PURCHASE PRICE COLLARS. Notwithstanding the requirements of
Section 2.4(a), but subject to the requirements of Section 3.17, (i) if the
Purchase Price determined by the Arbitration Panel is less than the sum of the
principal amount of the Note and Seven Million Five Hundred Thousand Dollars
($7,500,000), the Purchase Price shall be the sum of such amounts, and (ii) if
the Purchase Price determined by the Arbitration Panel is more than the sum of
the principal amount of the Note and Twenty-Five Million Dollars ($25,000,000),
the Purchase Price shall be the sum of such amounts.
(c) PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid by
Buyer to Sellers at Closing as follows:
(i) Upon the Closing, the entire outstanding indebtedness of
the Company to Buyer, including amounts for principal interest and other
obligations under the Note, shall be forgiven by Buyer and the entire amount of
such indebtedness (the "Cancelled Debt") shall be applied as a credit against
the payment of the Purchase Price.
(ii) Upon the Closing, Buyer shall pay to Sellers by wire
transfer of immediately available funds pursuant to wire instructions provided
by Sellers to Buyer at least two (2) business days prior to Closing an amount in
cash equal to the Purchase Price less the amount of the Cancelled Debt (the
"Cash Balance") adjusted as provided in Sections 2.4(d) and (e) below.
(d) PREPAYMENTS UNDER PROGRAMMING AGREEMENTS. For each Contract
regarding the sale of program time on any Station in effect at Closing that
cannot be cancelled by the applicable Station upon thirty (30) days notice or
less and for which any Seller has received payment thereunder for any portion of
the period following the Closing Date (the amount of such payment is the
"Prepayment"), an amount equal to the Prepayment shall be applied as a partial
credit against the Cash Balance payable to Sellers at Closing.
(e) PRORATIONS. The Purchase Price shall be increased or decreased
as required to effectuate the proration of expenses with respect to the business
or operations of the Stations, other than those expenses for which Buyer is
obligated to reimburse Sellers under the Time Brokerage Agreements. All expenses
arising from the operation of a Station, including business and license fees,
utility charges, real and personal property taxes and assessments levied against
the Assets, property and equipment rentals, applicable copyright or other fees,
sales and service charges, taxes (except for taxes arising from the transfer of
the Assets under this Agreement), FCC annual regulatory fees and similar prepaid
and deferred items, shall be prorated between Buyer and Sellers in accordance
with the principle that Sellers 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 Agreements),
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 Sellers shall remain
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solely liable with respect to, any Contracts not included in the Assumed
Contracts, subject to Section 2.3, and any other obligation or liability not
being assumed by Buyer in accordance with Section 2.3.
(f) DETERMINATION OF ADJUSTMENTS. The Cash Balance, taking into
account the adjustments contemplated by Section 2.4(d) and (e), will be
determined in accordance with the following procedures:
(i) Sellers shall prepare and deliver to Buyer not later
than three (3) business days before the Closing Date a preliminary settlement
statement which shall set forth Sellers' good faith estimate of the adjustment
to the Cash Balance under Section 2.4(d) and (e). The preliminary settlement
statement shall contain all information reasonably necessary to determine the
adjustment to the Cash Balance under Section 2.4(d) and (e), to the extent such
adjustment 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. Buyer and Sellers shall use their good faith efforts to agree upon the
adjustments under Section 2.4(d) and (e) prior to the Closing. The Cash Balance
payable at Closing 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 omitted from such preliminary settlement
statement and shall instead be determined as part of the post-closing
adjustments under this Section 2.4(f).
(ii) No later than forty-five (45) days after the Closing
Date, Buyer shall deliver to Sellers a statement setting forth Buyer's
determination of the adjustments to the Cash Balance pursuant to this Section
2.4(f). If Sellers dispute Buyer's determination of such adjustments, Sellers
shall deliver to Buyer within forty-five (45) days after their receipt of
Buyer's statement a statement setting forth their determination of the amount of
the adjustments (the "Sellers Statement"). If Sellers notify Buyer of their
acceptance of Buyer's statement, or if Sellers fail to deliver the Sellers
Statement within the 45-day period specified in the preceding sentence, Buyer's
determination of the adjustments shall be conclusive and binding on the parties
as of the last day of the 45-day period.
(iii) Buyer and Sellers shall use good faith efforts to
resolve any dispute involving the determination of the adjustments required by
this Section 2.4(f). If the parties are unable to resolve the dispute within
fifteen (15) days following the delivery of the Sellers Statement, Buyer and
Sellers 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 Sellers Statement,
to resolve the dispute. If Sellers 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 Cash Balance as finally determined pursuant to
this Section 2.4(f) exceeds the Cash Balance paid by Buyer on the Closing Date
(the "Estimated Cash Balance"), Buyer shall pay to Sellers, in immediately
available funds within five days after the date on which the Cash Balance is
finally determined pursuant to this Section 2.4(f), the difference between the
Cash Balance as finally determined and the Estimated Cash Balance. If the Cash
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Balance as finally determined pursuant to this Section 2.4(f) is less than the
Estimated Cash Balance, Sellers shall pay to Buyer, in immediately available
funds within five (5) days after the date on which the Cash Balance is finally
determined pursuant to this Section 2.4(f), the difference between the Cash
Balance as finally determined and the Estimated Cash Balance.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers, jointly and severally, hereby represent and warrant to Buyer
as follows:
3.1 ORGANIZATION, STANDING, AND AUTHORITY. The Company is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Florida. Each Subsidiary is duly organized, validly
existing, and in good standing under the laws of the State of Florida and each
Asset Subsidiary is qualified to do business as a foreign corporation in each
jurisdiction in which the ownership of its respective Assets or the conduct of
its respective business or operations requires such qualification. Each Seller
has all requisite power and authority (i) to own, lease, and use its respective
Assets as now owned, leased, and used, and (ii) to execute and deliver this
Agreement and to perform and comply with all of the terms, covenants, and
conditions to be performed and complied with by it hereunder.
3.2 AUTHORIZATION AND BINDING OBLIGATION. The execution, delivery
and performance of this Agreement and the Seller Ancillary Agreements by each
Seller, as applicable, have been duly authorized and approved by all necessary
action of such Seller and do not require any further authorization or consent.
This Agreement and each Seller Ancillary Document are legal, valid and binding
agreements of each Seller, as applicable, enforceable in accordance with their
respective terms, except in each case as such enforceability may be limited by
bankruptcy, moratorium, insolvency, reorganization or other similar laws
affecting or limiting the enforcement of creditors' rights generally and except
as such enforceability is subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
3.3 ABSENCE OF CONFLICTING AGREEMENTS. Subject to obtaining the
Consents listed on SCHEDULE 3.3 and the FCC Consents, subject to providing the
Trusts with sufficient notice of the Closing under Florida law, and subject to
the termination or expiration of the waiting period under the HSR Act applicable
to the transactions contemplated hereby, the execution, delivery, and
performance of this Agreement and the Seller Ancillary Agreements (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
Trust Agreements or the Articles of Incorporation or Bylaws of the Company or
any Subsidiary; (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
applicable to the Company or any Subsidiary; (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
the Company or any Subsidiary is a party or by which the Company or any
Subsidiary may be bound, except for such conflicts, terminations, breaches,
defaults or accelerations that have not had and could not reasonably be expected
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to have a Company Material Adverse Effect; 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 LICENSES. SCHEDULE 3.4 is a true and complete list of each FCC
License and each other License that is material to the business or operations of
each Station. Sellers shall deliver to Buyer true and complete copies of the
Licenses (including any amendments and other modifications thereto), except
Licenses of auxiliary stations, listed on SCHEDULE 3.4. The Licenses listed on
SCHEDULE 3.4 have been validly issued to the respective License Subsidiary
identified on SCHEDULE 3.4, and each such License Subsidiary is the authorized
legal holder thereof. The Licenses listed on SCHEDULE 3.4 comprise all of the
Licenses 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, except for such Licenses the failure of
which to obtain have not had and could not reasonably be expected to have a
Company Material Adverse Effect. None of the Licenses listed on SCHEDULE 3.4 is
subject to any restriction or condition that would limit the operation of any
Station as now operated, other than such restrictions or conditions that appear
on the face of such Licenses or are generally applicable to television
broadcasting stations under the rules and regulations of the FCC. The Licenses
listed on SCHEDULE 3.4 are in full force and effect, and the conduct of the
business and operations of each Station is in accordance therewith, except for
such noncompliance that have not had and could not reasonably be expected to
have a Company Material Adverse Effect. Sellers have no reason to believe that
any of the FCC Licenses would not be renewed by the FCC in the ordinary course.
No action is pending or, to the best knowledge of the Company, threatened by or
before the FCC to revoke, terminate or modify in any materially adverse respect
any of the FCC Licenses, and there is no order to show cause, notice of
violation, notice of apparent liability or notice of forfeiture outstanding or,
to the best knowledge of the Company, threatened with respect to any Station.
Except as set forth on SCHEDULE 3.4, Sellers require no waiver of any FCC rule
or policy to obtain the FCC Consents.
3.5 CONTRACTS. SCHEDULE 3.5 is a true and complete list of all
Contracts, other than Contracts entered into by any Seller in the ordinary
course of business, prior to the date hereof (i) for the sale of advertising
time on the Stations for cash at rates consistent with past practices that can
be terminated by a Station without premium or penalty on no more than thirty
(30) days notice (it being understood that SCHEDULE 3.5 shall include a list of
all long-form advertising and other program time sales Contracts in effect on
the date hereof) and (ii) other than the Contracts described in clause (i),
Contracts that do not involve obligations or liabilities in excess of Five
Thousand Dollars ($5,000) for each such Contract and Fifty Thousand Dollars
($50,000) for all such Contracts in the aggregate. The Company shall deliver to
Buyer true and complete copies of all written Contracts and true and complete
memoranda of all oral Contracts (including any amendments and other
modifications to such Contracts) listed on SCHEDULE 3.5. Other than the
Contracts listed on SCHEDULE 3.5 or any other Schedule to this Agreement and the
Contracts that are not required to be listed on SCHEDULE 3.5, and except as
noted on SCHEDULE 3.5, neither the Company nor any Subsidiary requires any
contract, lease, or other agreement to enable it to carry on its business as now
conducted. All of the Contracts are in full force and effect. There is not under
any Contract any default by the Company or any Subsidiary or, to the best
knowledge of the Company, any other party thereto or any event that, after
notice or lapse of time, or both, could constitute a default, except for such
defaults that have not had and could not reasonably be expected to have a
Company Material Adverse Effect. The Company is not aware of any intention by
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any party to any Contract (i) to terminate such contract or amend the terms
thereof, (ii) to refuse to renew the Contract upon expiration of its term, or
(iii) to renew the Contract upon expiration only on terms and conditions which
are more onerous than those now existing.
3.6 CONSENTS. Except for Consents described in SCHEDULE 3.3, the
FCC Consents and the expiration or termination of any waiting period required
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) to consummate this Agreement and the
transactions contemplated hereby, (ii) to permit Sellers to assign or transfer
the Assets to Buyer, or (iii) to enable Buyer to conduct the business and
operations of each Station in essentially the same manner as such business and
operations are now conducted.
3.7 REPORTS. All material returns, reports, and statements
required to be filed by the Company or any Subsidiary with the FCC have been
filed, and all reporting requirements of the FCC and other governmental
authorities having jurisdiction over the Company, each Subsidiary and each
Station have been complied with by the Company or such Subsidiary, except for
such noncompliance that have not had and could not reasonably be expected to
have a Company Material Adverse Effect. All of such returns, reports, and
statements are substantially complete and correct as filed. All annual
regulatory fees payable with respect to the FCC Licenses have been timely paid
to the FCC.
3.8 TAXES.
(a) The Company has filed or has caused to be filed in a
timely manner all required Tax Returns with the appropriate governmental
authorities in all jurisdictions in which such Tax Returns are required to be
filed by the Company and its Subsidiaries (except Tax Returns listed on SCHEDULE
3.8 for which the filing date has been extended and such extension period has
not expired), and all Taxes shown on such Tax Returns have been properly accrued
or paid to the extent such Taxes have become due and payable. The Company shall
deliver to Buyer true, correct and complete copies of the Tax Returns (in the
form filed) listed in SCHEDULE 3.8. The Financial Statements reflect an adequate
reserve in accordance with GAAP (without regard to any amounts reserved for
deferred taxes) for all unpaid Taxes payable by the Company and its Subsidiaries
for all Tax periods and portions thereof through the date of such Financial
Statements.
(b) Except as disclosed in SCHEDULE 3.8, the Company and its
Subsidiaries have not executed any waiver or extension of any statute of
limitations on the assessment or collection of any Tax or with respect to any
liability arising therefrom. Except as disclosed in SCHEDULE 3.8, none of the
federal, state or local income Tax Returns filed by the Company and its
Subsidiaries has been audited by any taxing authority. Except as disclosed in
SCHEDULE 3.8, (i) neither the IRS nor any other taxing authority is asserting,
or threatening to assert any deficiency or claim for additional Taxes against,
or any adjustment of Taxes relating to, the Company and its Subsidiaries and no
basis exists for any such deficiency, claim or adjustment, and (ii) there are no
proposed reassessments of any property owned by the Company and its Subsidiaries
or other proposals that could affect the Taxes of the Company and its
Subsidiaries. There are no material Tax liens on any assets of the Company and
its Subsidiaries, other than liens for current Taxes not yet due and payable and
liens for Taxes that are being contested in good faith by appropriate
proceedings.
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3.9 CLAIMS AND LEGAL ACTIONS. Except as listed on SCHEDULE 3.9 and
proceedings generally affecting the broadcast industry, there is no claim, legal
action, counterclaim, suit, arbitration, governmental investigation or other
legal or administrative proceeding, nor any order, decree or judgment, in
progress or pending or, to the best knowledge of the Company, threatened against
or relating to the Company or any Subsidiary with respect to the Assets nor do
Sellers know or have reason to be aware of any basis for the same.
3.10 COMPLIANCE WITH LAWS. The Company and each Subsidiary have
complied with the Licenses and all federal, state, and local laws, rules,
regulations, and ordinances applicable or relating to the ownership and
operation of the Assets and each Station, except for such noncompliance that
have not had and could not reasonably be expected to have a Company Material
Adverse Effect. To the best knowledge of the Company, neither the ownership or
use of the Assets nor the conduct of the business or operations of any Station
as currently conducted conflicts with the rights of any other person or entity.
3.11 INSURANCE. SCHEDULE 3.11 is a true and complete list in all
material respects of all insurance policies of the Company and each Subsidiary
that insure any part of the Assets or the business of a Station. All policies of
insurance listed in SCHEDULE 3.11 are in full force and effect.
3.12 REAL PROPERTY INTERESTS. SCHEDULE 3.12 contains a complete and
accurate description, in all material respects, of the Real Property Interests.
The Real Property Interests listed on SCHEDULE 3.12 comprise all material real
property interests necessary to conduct the business and operations of each
Station as now conducted. Each Subsidiary, as applicable, has good and
marketable fee simple title, insurable at standard rates, to all fee estates
(including the improvements thereon) included in the Real Property Interests,
free and clear of all liens, mortgages, pledges, covenants, easements and other
claims and encumbrances, except for liens for real estate taxes not yet due and
payable and liens granted to Buyer pursuant to the Loan Documents. With respect
to each leasehold interest included in the Real Property Interests, so long as
the applicable Subsidiary fulfills its obligations under the lease therefor,
such Subsidiary has enforceable rights to nondisturbance and quiet enjoyment.
All towers, guy anchors, and buildings and other improvements included in the
Assets are located entirely on the Real Property Interests. Sellers shall
deliver to Buyer true and complete copies of all deeds pertaining to the Real
Property Interests. To the best knowledge of Sellers, all Real Property
Interests (including the improvements thereon) are in good condition and repair
(ordinary wear and tear excepted) consistent with its present use.
3.13 TITLE TO PROPERTIES. Except as disclosed in SCHEDULE 3.13, the
Company or the Subsidiaries, as applicable, have good and marketable title to
all of the Assets, and the Assets are subject to no mortgages, pledges, liens,
security interests, encumbrances, or other charges or rights of others of any
kind or nature except for liens for current taxes not yet due and payable and
liens granted to Buyer pursuant to the Loan Documents.
3.14 FINANCIAL STATEMENTS. The Company shall furnish Buyer with
true and complete copies of audited financial statements of the Company and each
Subsidiary containing audited financial statements for the fiscal year ended
December 31, 1998, and an unaudited balance sheet for the nine months ended
September 30, 1999 (collectively, the "Financial Statements"). The audited
Financial Statements have been prepared from the books and records of the
Company and each Subsidiary, have been prepared in accordance with GAAP and
maintained throughout the periods indicated, accurately reflect in all material
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respects the books, records, and accounts of the Company and each Subsidiary
(which books, records, and accounts are complete and correct in all material
respects ), and present fairly in all material respects the financial condition
of the Company and each Subsidiary as of their respective dates and the results
of operations for the periods then ended. The unaudited Financial Statements
have been prepared from the books and records of the Company and each
Subsidiary, have been prepared in a manner consistent with the audited Financial
Statements, accurately reflect in all material respects the books, records, and
accounts of the Company and each Subsidiary, and present fairly in all material
respects the financial condition of the Company and each Subsidiary as of their
respective dates and the results of operations for the periods then ended.
3.15 UNDISCLOSED LIABILITIES. Except as disclosed on SCHEDULE 3.15,
neither the Company nor any Subsidiary has any material debt, liability or
obligation, whether accrued, absolute, contingent or otherwise, including any
liability or obligation on account of taxes or any governmental charges,
penalty, interest or fines, except: (i) those liabilities reflected in the
Financial Statements; or (ii) liabilities incurred in the ordinary course of
business (other than contingent liabilities) since August 5, 1999, that do not
exceed in the aggregate Fifty Thousand Dollars ($50,000).
3.16 ACCOUNTS RECEIVABLE. All Accounts Receivable have arisen from
bona fide transactions in the ordinary course of business. Assuming that
commercially reasonable efforts are made to collect the Accounts Receivable, all
Accounts Receivable reflected on the Financial Statements are good and
collectible in the ordinary course of business at the aggregate recorded amounts
thereof, net of doubtful accounts.
3.17 CAPITAL. The shareholders of the Company have contributed to
the Company capital contributions in cash in an aggregate amount of no less than
Seven Million Five Hundred Thousand Dollars ($7,500,000), and no portion of such
capital contributions have been distributed by the Company as of the date
hereof. Upon reasonable written notice to the Company, NBC shall have the right
to conduct an audit, at Buyer's expense, of the Company's books and records in
order to confirm the amount of such capital contributions (the "Verified Capital
Amount"). Sellers shall afford to NBC and to NBC's Advisors (as defined in
Section 6.9) access to all books and records of the Company necessary to enable
NBC to conduct such audit. NBC shall cause such audit to be completed as soon as
practicable following the date the Company provides or makes available to NBC
and NBC's Advisors such books and records. The results of such audit shall
indicate the auditor's determination of the Verified Capital Amount and shall
specify in reasonable detail the basis for such determination. If the audit
demonstrates that the Verified Capital Amount is more than Seven Million Five
Hundred Thousand Dollars ($7,500,000) (the amount of such excess is the "Excess
Capital Amount"), the dollar amounts specified in Section 2.4(b)(i) and (ii)
shall be increased by the amount of the Excess Capital Amount. If the audit
demonstrates that the Verified Capital Amount is less than Seven Million Five
Hundred Thousand Dollars ($7,500,000) (the amount of such difference shall be
the "Deficit Capital Amount"), the dollar amounts specified in Section 2.4(b)(i)
and (ii) shall be reduced by the Deficit Capital Amount.
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3.18 TANGIBLE PERSONAL PROPERTY. SCHEDULE 3.18 sets forth an
accurate and complete list in all material respects of all material items of
Tangible Personal Property. The Tangible Personal Property listed on SCHEDULE
3.18 comprises all material items of tangible personal property necessary to
conduct the business and operations of each Station as now conducted. The
Company or each Subsidiary, as applicable, owns and has good title to each item
of Tangible Personal Property, and none of the Tangible Personal Property is
subject to any lien, charge or encumbrance, other than liens for current taxes
not yet due and payable and the liens granted to Buyer pursuant to the Loan
Documents. Each item of Tangible Personal Property listed on SCHEDULE 3.18 is
available for immediate use in the business and operations of each Station. All
items of transmitting and studio equipment included in the Tangible Personal
Property listed on SCHEDULE 3.18 (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 each
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, rules and regulations, except for such noncompliance that
have not had and could not reasonably be expected to have a Company Material
Adverse Effect.
3.19 LOAN DOCUMENTS. The Loan Documents are in full force and, to
the best knowledge of the Company, there exists no Event of Default (as defined
in the Credit Agreement) under the Loan Documents or any event which, with the
lapse of any applicable grace period or the giving of notice, or both, would
constitute an Event of Default under the Loan Documents.
3.20 ENVIRONMENTAL MATTERS.
(a) To the best knowledge of the Company, the Company and
the Subsidiaries have complied 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, except
for such noncompliance that has not had and could not reasonably be expected to
have a Company Material Adverse Effect, and no charge, complaint, action, suit,
proceeding, hearing, investigation, claim, demand, or notice has been filed or
commenced against the Company or any Subsidiary in connection with the ownership
or operation of a Station alleging any failure to comply with any such law,
rule, or regulation.
(b) To the best knowledge of the Company, based solely on
environmental surveys conducted by Dames & Xxxxx for the Company, true and
complete copies of such surveys have been delivered to Buyer, neither the
Company nor any Subsidiary has any liability relating to its ownership and
operation of a Station (and there is no basis related to the past or present
operations, properties, or facilities of the Company or any Subsidiary for any
present or future charge, complaint, action, suit, proceeding, hearing,
investigation, claim, or demand against the Company or any Subsidiary giving
rise to any such liability) under any law, rule, or regulation of any federal,
state, or local government (or agency thereof) concerning release or threatened
release of hazardous substances, public health and safety, or pollution or
protection of the environment, except for such liability has not had and that
could not reasonably be expected to have a Company Material Adverse Effect.
(c) To the best knowledge of the Company, based solely on
environmental surveys conducted by Dames & Xxxxx for the Company, true and
complete copies of such surveys have been delivered to Buyer, neither the
Company nor any Subsidiary has any liability relating to its ownership and
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operation of a Station (and neither the Company nor any Subsidiary has 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 the Company or any Subsidiary giving rise to any such
liability) for damage to any site, location, or body of water (surface of
subsurface), except for such liability that has not had and could not reasonably
be expected to have a Company Material Adverse Effect.
(d) To the best knowledge of the Company, based solely on
environmental surveys conducted by Dames & Xxxxx for the Company, true and
complete copies of such surveys have been delivered to Buyer, neither the
Company nor any Subsidiary has any liability relating to its ownership and
operation of a Station (and neither the Company nor any Subsidiary has exposed
any employee to any substance or condition 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 statute)
against the Company or any Subsidiary giving rise to any such liability) for any
illness or personal injury to any employee, except for such liability that has
not had and could not reasonably be expected to have a Company Material Adverse
Effect.
(e) To the best knowledge of the Company, in connection with
its ownership or operation of each Station, the Company and each Subsidiary, as
applicable, has obtained and complied 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 to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes,
except for such noncompliance that has not had and could not reasonably be
expected to have a Company Material Adverse Effect.
(f) No pollutant, contaminant, or chemical, industrial,
hazardous, or toxic material or waste has ever been manufactured, buried,
stored, spilled, leaked, discharged, emitted, or released in any material amount
by the Company or any Subsidiary in connection with its ownership and operation
of a Station.
3.21 PERSONNEL AND BENEFITS; LABOR.
(a) All Employee Plans and Compensation Arrangements of the
Company or any Subsidiary are listed in SCHEDULE 3.21, and complete and accurate
copies of any such written Employee Plans and Compensation Arrangements (or
related insurance policies) shall be furnished to Buyer, along with copies of
any employee handbooks or similar documents describing such Employee Plans and
Compensation Arrangements. SCHEDULE 3.21 also contains a true and complete list
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in all material respects of all employees of each Station, their job
description, date of hire and salary.
(b) Each Employee Plan and Compensation Arrangement has been
administered in compliance in all material respects with its own terms and with
the provisions of ERISA (as defined in subsection (f) below), the Code, the Age
Discrimination in Employment Act and any other applicable federal or state laws.
Neither the Company nor any Subsidiary is aware of the existence of any
governmental audit or examination of any Employee Plan or Compensation
Arrangement or of any facts which would reasonably lead the Company or such
Subsidiary to believe that any such audit or examination is pending or
threatened. No action, suit or claim (other than routine claims for benefits)
with respect to any Employee Plan or Compensation Arrangement is pending or, to
the best knowledge of the Company or its Subsidiaries, threatened.
(c) Except as set forth on SCHEDULE 3.21, neither the
Company nor any Subsidiary contributes to or is required to contribute to any
Multi-employer Plan (as defined in subsection (e) below) with respect to the
employees of a Station.
(d) 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 the Company, a Subsidiary or any
entity related to the Company (under the terms of Section 414(b), (c), (m) or
(o) of the Code) contributes or to which the Company, a Subsidiary or any entity
related to the Company (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 a Station; (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 the Company, any Subsidiary or any entity related
to the Company (under the terms of Section 414(b), (c), (m) or (o) of the Code)
employed or previously employed at each Station 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 the Company, any
Subsidiary or any entity related to the Company (under the terms of Section
414(b) or (c) of the Code) contributes or is required to contribute.
(e) Except as set forth on SCHEDULE 3.21, neither the
Company nor any Subsidiary is a party or subject to any collective bargaining
agreement with respect to any Station. Neither the Company nor any Subsidiary
has any written or oral contracts of employment with any employee of any
Station, other than those listed in SCHEDULE 3.21. To the best knowledge of the
Company, the Company and each Subsidiary 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, except for such noncompliance that has not had and could not
reasonably be expected to have a Company Material Adverse Effect, and neither
the Company nor any Subsidiary has received any notice alleging that it has
failed to comply in any material respect with any such laws, rules, or
regulations. Except as set forth on SCHEDULE 3.21, no controversies, disputes,
or proceedings are pending or, to the best knowledge of the Company, threatened,
between the Company or a Subsidiary and any employee (singly or collectively) of
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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 knowledge
of the Company, 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.
3.22 INTANGIBLES. SCHEDULE 3.22 is a true and complete list in all
material respects of all material Intangibles (exclusive of those listed in
SCHEDULE 3.4), all of which are valid and uncontested and free and clear of
liens, charges or other encumbrances other than liens granted to Buyer pursuant
to the Loan Documents. To the best knowledge of the Company, neither the Company
nor any Subsidiary 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 best knowledge of
the Company, threatened with respect thereto. The Intangibles listed on SCHEDULE
3.22 comprise all material intangible property interests necessary to conduct
the business and operations of each Station as now conducted.
3.23 FULL DISCLOSURE. No representation or warranty made by the
Company in this Agreement or in any certificate, document, or other instrument
furnished or to be furnished by the Company pursuant hereto contains or will
contain any untrue statement of a material fact, or omits or will omit to state
any material fact and required to make any statement made herein or therein not
misleading.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Sellers 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 Delaware. Buyer has all requisite power and authority to execute and
deliver this Agreement and the documents contemplated hereby, and to perform and
comply with all of the terms, covenants, and conditions to be performed and
complied with by Buyer hereunder.
4.2 AUTHORIZATION AND BINDING OBLIGATION. The execution, delivery,
and performance of this Agreement and the Buyer Ancillary Agreements by Buyer
have been duly authorized and approved by all necessary actions on the part of
Buyer. This Agreement and the Buyer Ancillary Agreements 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 terms, except as
the enforceability of this Agreement may be affected by bankruptcy, insolvency,
or similar laws affecting creditors' rights generally and, except as such
enforceability is subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
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4.3 ABSENCE OF CONFLICTING AGREEMENTS. Subject to obtaining the
Consents listed on SCHEDULE 4.3 and the FCC Consents, and subject to the
termination or expiration of the waiting period under the HSR Act applicable to
the transactions contemplated hereby, the execution, delivery, and performance
by Buyer of this Agreement and the Buyer Ancillary Agreements (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 Certificate 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 the Assets.
4.4 BUYER QUALIFICATIONS. Subject to receipt of the waivers
described on SCHEDULE 4.3, Buyer is legally, financially and otherwise qualified
to acquire and own the FCC Licenses.
4.5 FULL DISCLOSURE. No representation or warranty made by Buyer
in this Agreement or in any certificate, document, or other instrument furnished
or to be furnished by Buyer pursuant hereto contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
and required to make any statement made herein or therein not misleading.
SECTION 5. OPERATIONS PRIOR TO CLOSING
5.1 GENERALLY. Between the date of this Agreement and the Closing
Date, the Company and each Subsidiary shall operate the business of the Stations
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 the Company's or Subsidiaries' other obligations under this Agreement
and the Loan Documents and except where such conduct has been expressly
delegated to Buyer under the terms of the Time Brokerage Agreements, the Boston
Affiliation Agreement or Programming Agreement), and in accordance with the
other covenants in this Section 5.
5.2 COMPENSATION. The Company shall not increase in any respect
the compensation, bonuses, or other benefits payable or to be payable to any
person employed in connection with the conduct of the business of the Stations,
except in the ordinary course of business consistent with past practices.
5.3 CONTRACTS. Except for Permitted Contracts, neither the Company
nor any Subsidiary shall, without the prior written consent of Buyer, which
consent shall not be unreasonably withheld, (i) enter into any contract or
commitment relating to the Assets or the business or operations of the Stations,
(ii) amend or terminate any Contract (or waive any material right thereunder),
or (iii) incur any obligation (including obligations relating to the borrowing
of money or the guaranteeing of indebtedness) that will not be satisfied prior
to or on the Closing Date. Prior to the Closing Date, the Company shall deliver
to Buyer a list of all Contracts entered into between the date of this Agreement
and the Closing Date, together with copies of such Contracts.
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5.4 DISPOSITION OF ASSETS. Neither the Company nor any Subsidiary
shall sell, assign, lease, or otherwise transfer or dispose of any of the Assets
that, individually or in the aggregate, are valued at the time of disposition in
excess of Fifteen Thousand Dollars ($15,000).
5.5 ENCUMBRANCES. The Company shall not create, assume or permit
to exist any claim, liability, mortgage, lien, pledge, condition, charge, or
encumbrance of any nature whatsoever upon the Assets, except for (i) liens and
liabilities arising under the Loan Documents, (ii) liens for current taxes not
yet due and payable, (iii) mechanics' liens and other similar liens created in
the ordinary course of business that do not adversely affect in any material
respect the value or current use and enjoyment of the Assets, and (iv) existing
encumbrances (other than encumbrances securing monetary obligations) on certain
Real Property Interests which do not adversely affect the use or value of the
Real Property Interests.
5.6 RIGHTS. The Company shall not knowingly waive any material
right relating to any of the Assets.
5.7 INSURANCE. The Company shall maintain in full force and effect
policies of insurance of the same type, character, and coverage as the policies
currently carried with respect to the business, operations and assets of the
Company and each Subsidiary.
5.8 ACCESS TO INFORMATION. The Company shall give Buyer and its
authorized representatives reasonable access to the Assets and to all other
properties, equipment, books, records of the Stations, for the purpose of audit
and inspection.
5.9 CONSENTS. The Company shall use commercially reasonable
efforts to obtain the Consents without any change in the terms or conditions of
any Contract or the License to which any Consent relates that could be
materially less advantageous to the Company than those pertaining under the
Contract or License as in effect on the date of this Agreement. The Company
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, the Company shall cooperate with Buyer and
use its commercially reasonable efforts to obtain from the lessors under each
lease included in the Real Property Interests such estoppel certificates as
Buyer may request.
5.10 BOOKS AND RECORDS. The Company and each Subsidiary shall
maintain its books and records substantially in accordance with past practices.
5.11 COMPLIANCE WITH LAWS. The Company and each Subsidiary shall
comply with all laws, rules, and regulations applicable or relating to the
Assets or the ownership and operation of the Stations, except for such
noncompliance that could not reasonably be expected to have a Company Material
Adverse Effect.
5.12 MERGERS. Neither the Company nor any Subsidiary shall
reorganize, liquidate or merge or consolidate with any other entity.
5.13 INDEBTEDNESS AND OBLIGATIONS. Except for indebtedness under
the Loan Documents, neither the Company nor any Subsidiary shall incur
indebtedness for borrowed money. The Company and each Subsidiary shall pay all
of its respective obligations as such obligations become due, consistent with
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past practices, so that all such obligations shall be current, consistent with
past practices, as of the Closing Date. Without limiting the generality of the
foregoing, the Company and each Subsidiary shall perform their respective
obligations under the Loan Documents.
5.14 AMENDMENTS. Neither the Company nor any Subsidiary shall
amend, change, or modify its Articles of Incorporation or Bylaws.
5.15 SECURITIES. Except as provided in the Loan Documents, neither
the Company nor any Subsidiary will, and will not agree to, (a) issue, sell, or
otherwise dispose of any of its shares of capital stock; (b) acquire (through
redemption or otherwise) any of its shares of capital stock; (c) grant any
options, warrants, or other rights to acquire any of its shares of capital
stock; or (d) issue, sell, or otherwise dispose of any stock options, bonds,
notes, or other securities.
5.16 MAINTENANCE OF ASSETS. The Company and each Subsidiary shall
maintain all of the Assets in good condition (ordinary wear and tear excepted),
consistent with their overall condition on the date of this Agreement, and use,
operate and maintain all of the Assets in a reasonable manner. 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
by Buyer or its Affiliates under the Time Brokerage Agreements, Boston
Affiliation Agreement or Programming Agreement, the Company and each Subsidiary
shall, at the discretion of Buyer, repair, replace, or restore the Assets to
their prior condition as represented in this Agreement as soon thereafter as
possible, and the Company and each Subsidiary shall use the proceeds of any
claim under any insurance policy to repair, replace, or restore any of the
Assets that are lost, damaged, impaired, or destroyed.
5.17 PRESERVATION OF BUSINESS. The Company and each Subsidiary
shall use commercially reasonable efforts consistent with its past practices to
preserve the business and organization of the Stations not expressly delegated
to Buyer under the Time Brokerage Agreements, Boston Affiliation Agreement and
Programming Agreement and use its commercially reasonable efforts to keep
available to the Stations their present employees and to preserve the audience
of the Stations and the Stations' present relationships with suppliers,
advertisers, and others having business relations with the Stations.
5.18 LICENSES. Neither the Company nor any Subsidiary shall cause
or permit, by any act or failure to act, any of the Licenses to expire or to be
revoked, suspended or adversely modified or take any action that could
reasonably be expected to cause the FCC or any other governmental authority to
institute proceedings for the suspension, revocation or adverse modification of
any of the Licenses. Each Subsidiary shall prosecute with due diligence any
applications to any governmental authority in connection with the operation of a
Station.
5.19 NO INCONSISTENT ACTION. Neither Buyer, the Company, nor any
Subsidiary shall take any action that is inconsistent with their respective
obligations under this Agreement, the Seller Ancillary Agreements, or the Buyer
Ancillary Agreements, as applicable, or that could hinder or delay in any
material respect the consummation of the transactions contemplated hereby or
thereby. Without limiting the generality of the foregoing, each Seller covenants
that it will not (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) pledge, acquisition or
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sale of securities, (iv) transfer or assignment of any FCC License, (v) sale,
lease or disposition of substantially all of the assets, or (vi) similar
transaction or business combination, in each case involving the Company or any
Subsidiary, 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.
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC CONSENTS.
(a) The assignment of the FCC Licenses as contemplated by
this Agreement is subject to the prior consent and approval of the FCC.
(b) Sellers and Buyer shall prepare and, within five (5)
business days after the date of this Agreement, file with the FCC appropriate
applications for the FCC Consents. The parties shall thereafter prosecute such
applications with all reasonable diligence and otherwise use their respective
best efforts to obtain the FCC Consents as expeditiously as practicable. Each
party agrees to comply with any condition imposed on it by the FCC Consents,
except that no party shall be required to comply with a condition if (i) the
condition was imposed on it as the result of a circumstance the existence of
which does not constitute a breach by that party of any of its representations,
warranties, or covenants hereunder, and (ii) compliance with the condition would
have a material adverse effect upon it. Buyer and Sellers shall oppose any
petitions to deny or other objections filed with respect to the applications for
the FCC Consents and any requests for reconsideration or judicial review of the
FCC Consents.
(c) If the Closing shall not have occurred for any reason
within the original effective periods of the FCC Consents, and neither Sellers
nor Buyer shall have terminated this Agreement under Section 9, the parties
shall jointly request an extension of the effective period of the FCC Consents.
No extension of the effective period of the FCC Consents shall limit the
exercise by either Buyer or Sellers of their right to terminate the Agreement
under Section 9.
6.2 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 if required, not taken) by Buyer pursuant to
the Time Brokerage Agreements, the Boston Affiliation Agreement or the
Programming Agreement, from any cause whatsoever shall be borne by Sellers and
the Company at all times prior to the Closing.
(b) If any damage or destruction of the Assets or any other
event occurs which (i) causes any Station to cease broadcasting operations for a
period of five (5) or more consecutive days or (ii) prevents in any material
respect signal transmission by any Station in the normal and usual manner (so
that Station transmission is not substantially in accordance with the Station's
operating parameters as set forth in its FCC License) during all or any portion
of ten (10) or more days during any consecutive 30-day period prior to the
Closing Date, unless such damage, destruction or cessation is caused by actions
taken (or, if required, not taken) by Buyer, Buyer, in its sole discretion, may
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(x) terminate this Agreement forthwith without any further obligations hereunder
upon written notice to Sellers, provided that such termination notice from Buyer
is delivered to Sellers within thirty (30) days of the first (1st) day upon
which Buyer could exercise its termination rights or such rights shall be deemed
waived by Buyer, or (y) proceed to consummate the transaction contemplated by
this Agreement and complete the restoration and replacement of the Assets after
the Closing Date, in which event Sellers shall deliver to Buyer all insurance
proceeds received in connection with such damage, destruction or other event.
6.3 CONFIDENTIALITY. Except as necessary for the consummation of
the transactions contemplated by this Agreement, 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 and the FCC, 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 such party from the other party in connection
with the transactions contemplated by this Agreement.
6.4 COOPERATION. Buyer and Sellers 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 Sellers 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. Without limiting the generality of the foregoing, Buyer shall
cooperate with Sellers and use commercially reasonable efforts to minimize to
the extent feasible the Taxes payable by Sellers as a result of the consummation
of the transaction contemplated hereby; PROVIDED, HOWEVER, Buyer shall not be
required to incur any obligation or liability as a result of such efforts.
6.5 RESTRICTED PAYMENT. No Seller shall make any distribution or
payment of cash or property, or both, directly or indirectly to any partner,
stockholder, member or other equityholder of any Seller or of any of their
respective Affiliates for any reason whatsoever, including, without limitation,
salaries (other than the salaries expressly permitted by the terms of the Time
Brokerage Agreements and Boston Affiliation Agreement), loans, debt repayment,
consulting fees, expense reimbursements and dividends, distributions, put, call
or redemption payments and any other payments in respect of equity interests.
Buyer acknowledges and agrees that any payment of the WEBZ(FM) Distribution to
any partner, shareholder, member or other equityholder of any Seller or its
Affiliates shall not be prohibited by this Section 6.5 or any other provision of
this Agreement, and the WEBZ(FM) Distribution shall not reduce the Verified
Capital Amount for any purpose under this Agreement.
6.6 HSR ACT FILING. Sellers 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
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possession that may be reasonably required in connection with such filings; (d)
promptly file, after any request by the FTC or DOJ and appropriate negotiation
with the FTC and DOJ, any information or documents 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 relate to the
transactions contemplated hereunder, and to the extent practicable, to permit
each other to participate in any conferences with the FTC or DOJ.
6.7 ENVIRONMENTAL REPORTS.
(a) The Company has delivered to Buyer copies of each Phase
I and other environmental report that has been obtained by the Company with
respect to the Real Property Interests (collectively, the "Existing Phase I
Reports").
(b) Buyer, at its election and cost, may obtain no later
than forty-five (45) days from the date hereof, any updates of the Existing
Phase I Reports (the "Updated Reports") and a Phase II environmental report for
any Real Property Interest owned by the Company or any Subsidiary with respect
to the Stations to the extent expressly recommended in any Existing Phase I
Report or any Updated Report (a "Phase II Report"). The Company shall cooperate
with Buyer and use commercially reasonable efforts to assist Buyer in obtaining
the Phase II Reports as soon as practicable. The Existing Phase I Reports, any
Updated Reports and any Phase II Reports are hereinafter referred to as the
"Assessments." Buyer shall promptly deliver to the Company a copy of each
Assessment received by Buyer and shall promptly notify the Company of any
environmental condition or defect with respect to the Assets that Buyer may
discover prior to the Closing.
6.8 STOCK PURCHASE. Upon written notice to Buyer delivered no
later than fifteen (15) days following the determination of the Purchase Price
pursuant to Section 2.4(a)(i) or, if the Purchase Price is not determined
pursuant to Section 2.4(a)(i), no later than fifteen (15) days following the
Company's receipt of the Panel Valuation Report, the Company shall have the
right to propose to Buyer that Buyer acquire all of the issued and outstanding
capital stock of the Company in lieu of the Assets, in accordance with the terms
of a Stock Purchase Agreement that provides to Buyer the same rights and
benefits to which Buyer is entitled under the terms of this Agreement. If the
Company notifies Buyer of such proposal within such time period, Buyer and
Sellers shall negotiate in good faith the terms and conditions of such Stock
Purchase Agreement; PROVIDED, HOWEVER, that Buyer shall have no obligation to
agree to any such proposal if Buyer determines, in its sole discretion, that
such proposal shall cause Buyer to incur any obligation or liability that Buyer
is not required to incur by the terms of this Agreement, including any
obligation or liability that would result in adverse tax consequences to Buyer
(other than adverse tax consequences arising from a change in the basis of the
Assets to be acquired by Buyer pursuant to the terms hereof).
6.9 FAIR MARKET VALUE DETERMINATION. If the Purchase Price is
determined pursuant to Section 2.4(a)(iv) (it being understood that the
requirements of this Section 6.9 shall have no effect if the Purchase Price is
determined pursuant to Section 2.4(a)(i)), Buyer, Sellers and NBC acknowledge
and agree that Buyer's obligation to consummate the purchase of the Assets is
subject to the reasonable determination by NBC in accordance with the
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requirements of this Section 6.9 that the Fair Market Value of the Stations
equals or exceeds the amount of the Purchase Price. If NBC determines in the
good faith exercise of commercially reasonable business judgment that the Fair
Market Value of the Stations is less than the amount of the Purchase Price, NBC
shall notify Buyer in writing the basis for such determination (the "NBC
Valuation Report") as soon as reasonably practicable but in no event later than
fifteen (15) days following the date NBC shall have received the Panel Valuation
Report (the "NBC Valuation Report Deadline"), and NBC shall simultaneously
provide a copy of the NBC Valuation Report to the Company. The NBC Valuation
Report shall set forth in reasonable detail the basis for NBC's determination of
the Fair Market Value of the Stations. If NBC either (i) provides the NBC
Valuation Report to Buyer and the Fair Market Value of the Stations set forth
therein equals or exceeds the amount of the Purchase Price or (ii) fails to
provide the NBC Valuation Report to Buyer on or before the NBC Valuation Report
Deadline, the Closing condition set forth in Section 7.1(i) shall be deemed to
be irrevocably satisfied and, Buyer's termination right in Section 9.2(j) shall
have no force or effect. If NBC provides an NBC Valuation Report to Buyer on or
before the NBC Valuation Report Deadline, and the Fair Market Value of the
Stations set forth therein is less than the amount of the Purchase Price, Buyer
shall have the right to terminate this Agreement pursuant to Section 9.2(j). For
the purpose of this Section 6.9, "Fair Market Value" of the Stations shall be
equal to the appraised value of the Assets of the Stations as of the date hereof
(it being understood that the Fair Market Value shall not include the value of
any assets described in Section 2.2) on a going concern basis taking into
account, among other things, the Stations' obligations and liabilities, other
than the Stations' obligations and liabilities under the Time Brokerage
Agreements, the Boston Affiliation Agreement and the Programming Agreement, the
Verified Capital Amount and exclusive of any broker's fee or commission. The
Fair Market Value shall be determined in accordance with standard appraisal
techniques in use at the time of the determination taking into account
applicable market and economic factors in effect on the date hereof and such
other factors that might reasonably affect the sales price of the Stations. The
Fair Market Value shall not be reduced by any portion of the indebtedness
represented by the Note. Sellers, the Company and Buyer shall afford to NBC and
to NBC's financial advisors, legal counsel, accountants, consultants and other
authorized representatives (collectively, the "NBC Advisors") access to all
properties, personnel, books, records, projections and other materials
reasonably necessary to enable NBC to determine the Fair Market Value of the
Stations pursuant to this Section 6.9. Sellers, the Company and Buyer shall
furnish to NBC or an NBC Advisor as promptly as practicable copies of any such
books, records, projections or other materials as NBC or an NBC Advisor shall
reasonably request.
6.10 BOSTON PURCHASE. The Boston Purchase Documents are in full
force and effect. D P Boston and Boston License are in compliance with the
Boston Purchase Documents in all material respects and are not in material
breach or default thereunder. To the best knowledge of the Company, Boston
University Communications, Inc. ("Boston University") is in compliance with the
Boston Purchase Documents in all material respects and is not in material breach
or default thereunder. To the best knowledge of the Company, as of the date
hereof, no event has occurred or condition exists that, with notice or the
passage of time or both, could reasonably be expected to result in a material
breach or default under the Boston Purchase Documents by either party thereto.
The Company shall cause D P Boston and Boston License to use commercially
reasonable efforts to (i) maintain the Boston Purchase Documents in full force
and effect in accordance with their terms, (ii) comply in all material respects
with the terms of the Boston Purchase Documents applicable to it, (iii) cause
all conditions precedent to the consummation of the Boston Purchase Agreement to
be satisfied as soon as reasonably practicable, including the grant of the
satellite waiver request regarding the FCC multiple ownership rules, which is in
the application to acquire WBPX(TV), WDPX(TV), WPXG(TV) and W33BZ, and (iv)
consummate the closing under the Boston Purchase Agreement on the earliest date
permitted thereunder. Without Buyer's prior written consent, which consent shall
not be unreasonably withheld, neither the Company, D P Boston nor any other
Affiliate of the Company shall (i) agree to amend or modify in any material
respect the terms or conditions of the Boston Purchase Documents, (ii) waive any
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conditions of closing or other material right or remedy under the Boston
Purchase Documents or (iii) authorize Boston University under the terms of the
Boston Purchase Documents to acquire or enter into any new contract or agreement
which is not terminable by D P Boston on thirty (30) days notice. In the event
that the transactions contemplated by the Boston Purchase Agreement are
consummated prior to the Closing, WBPX(TV), WDPX(TV), WPXG(TV) and W33BZ shall
each constitute a "Station" for purposes of this Agreement, and all of the
assets, properties, rights and interests acquired by D P Boston and Boston
License pursuant to the Boston Purchase Agreement shall constitute "Assets" for
purposes of this Agreement. Upon Buyer's reasonable prior notice and, with the
consent of Boston University, if and to the extent such consent is required by
the terms of the Boston Purchase Documents, D P Boston shall assign to Buyer all
of its rights and interests under the Boston Purchase Documents, and Buyer shall
assume all of D P Boston's obligations under the Boston Purchase Documents, in
exchange for forgiveness of that portion of the indebtedness then outstanding
under the Loan Documents that is attributable to any deposit or advance paid by
D P Boston to Boston University pursuant to the Boston Purchase Agreement and in
accordance with customary assignment and assumption agreements reasonably
acceptable to Sellers and Buyer.
6.11 CURE. For all purposes under this Agreement, the existence or
occurrence of any events or circumstances that constitute or cause a material
breach of a representation or warranty of Sellers or Buyer (including, without
limitation, under the information disclosed in the Schedules hereto) on the date
such representation or warranty is made shall be deemed not to constitute a
breach of such representation or warranty if such event or circumstance is cured
in all material respects on or prior to the Closing Date.
6.12 CONTROL OF THE STATION. Without limiting the parties' rights
and obligations under the Time Brokerage Agreements, the Programming Agreement
and the Boston Affiliation Agreement, prior to Closing, Buyer shall not,
directly or indirectly, control, supervise, direct, or attempt to control,
supervise, or direct, the operations of any Station; such operations, including
complete control and supervision of all of the Stations' programs, employees,
and policies, shall be the sole responsibility of Sellers until the Closing.
6.13 SALES TAX FILINGS. Sellers shall continue to file state and
local sales tax returns with respect to the Stations in accordance with Sellers'
past practices and shall concurrently deliver copies of all such returns to
Buyer.
6.14 ACCESS TO BOOKS AND RECORDS. Sellers shall provide Buyer
access and the right to copy for a period of three years from the Closing Date
any books and records relating to the Assets that are not included in the
Assets. Buyer shall provide Sellers access and the right to copy for a period of
three years from the Closing Date any books and records relating to the Assets.
Sellers shall deliver to Buyer no later than February 28, 2000, audited
financial statements of the Company and its Subsidiaries as of December 31,
1999, and for the one (1) year period ending December 31, 1999, and shall make
available for Buyer's review all workpapers prepared in connection with such
audit.
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6.15 APPRAISAL. If Buyer and Sellers cannot agree on an allocation
of the Purchase Price, Buyer and Sellers 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.
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLERS 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 Sellers contained in this Agreement shall be true and correct at
and as of the Closing Date as though made at and as of that time, except (i) for
changes expressly permitted or contemplated by the terms of this Agreement or
the schedules hereto, (ii) insofar as any such representation or warranty was
true and complete as of the date hereof but shall not be true and complete as of
the Closing Date as a result of actions taken (or, if required, not taken) by
Buyer pursuant to any Time Brokerage Agreement, the Boston Affiliation Agreement
or the Programming Agreement, and (iii) inaccuracies in any such representation
or warranty that have not had, and could not reasonably be expected to cause, a
Company Material Adverse Effect or have a material adverse effect on the ability
of Sellers to consummate the transactions contemplated by this Agreement in
accordance with its terms; PROVIDED, HOWEVER, that for the purpose of this
Section 7.1(a) only, in determining whether there has been a Company Material
Adverse Effect under clause (iii), the representations and warranties in Section
3 shall be read as if such provisions did not include any "Company Material
Adverse Effect" or other materiality qualifier.
(b) COVENANTS AND CONDITIONS. The Company and each
Subsidiary shall have performed and complied with in all material respects all
covenants, agreements, and conditions required by this Agreement to be performed
or complied with by them prior to or on the Closing Date.
(c) CONSENTS. All Consents designated as "material" on
SCHEDULE 3.3 shall have been obtained and delivered to Buyer without any
material adverse change in the terms or conditions of any Assumed Contract or
License.
(d) DELIVERIES. Sellers shall have made or stand willing to
make all the deliveries to Buyer set forth in Section 8.2.
(e) ADVERSE CHANGE. Between the date of this Agreement and
the Closing Date, there shall have been no Company Material Adverse Effect,
other than any Company Material Adverse Effect resulting from actions taken by
Buyer pursuant to the Time Brokerage Agreements or the Boston Affiliation
Agreement.
(f) HSR ACT. The waiting period under the HSR Act shall have
expired or been terminated without unresolved action by the DOJ or the FTC to
prevent the Closing.
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(g) TIME BROKERAGE AGREEMENTS. Each Subsidiary, as
applicable, shall have complied in all material respects with their respective
obligations under each Time Brokerage Agreement and the Boston Affiliation
Agreement.
(h) FCC CONSENTS. The FCC Consents shall have been granted
without the imposition on Buyer of any conditions that need not be complied with
by Buyer under Section 6.1 and, if required by Section 8.1(b), the FCC Consents
shall have become Final Orders.
(i) VALUATION. The Fair Market Value of the Stations shall
have been determined to equal or exceed the amount of the Purchase Price in
accordance with the requirements of Section 6.9.
(j) LOAN DOCUMENTS. There shall exist no Event of Default
under the Loan Documents or any event which, with the lapse of any applicable
grace period or the giving of notice, or both, would constitute an Event of
Default under the Loan Documents.
7.2 CONDITIONS TO OBLIGATIONS OF SELLERS. All obligations of
Sellers at the Closing are subject at Sellers' 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 Buyer contained in this Agreement shall be true and correct 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 with in all material respects 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) HSR ACT. The waiting period under the HSR Act shall have
expired or been terminated without unresolved action by the DOJ or the FTC to
prevent the Closing.
(e) TIME BROKERAGE AGREEMENTS. Each subsidiary of Buyer
party thereto shall have complied in all material respects with its obligations
under each Time Brokerage Agreement, the Programming Agreement and the Boston
Affiliation Agreement.
(f) FCC CONSENTS. The FCC Consents shall have been granted
without the imposition on Sellers of any condition that need not be complied
with by Sellers pursuant to Section 6.1 hereof.
SECTION 8. CLOSING AND CLOSING DELIVERIES
8.1 CLOSING.
(a) CLOSING DATE. Subject to satisfaction or, to the extent
permissible by law, waiver (by the party for whose benefit the condition is
imposed), of the conditions described in Sections 7.1 and 7.2, the closing of
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the transactions contemplated by this Agreement (the "Closing") shall take
place, commencing at 10:00 a.m., Eastern time, on a date (the "Closing Date") on
or after June 1, 2000, to be set by Buyer upon no less than five (5) business
days notice to Sellers in writing that is not earlier than the tenth (10th)
business day, and not later than the fifteenth (15th) business day, after the
last grant date of the FCC Consents. If Buyer fails to notify Sellers of the
Closing Date pursuant to the preceding sentence, the Closing Date shall occur on
the date that is the fifteenth (15th) business day after the last grant date of
the FCC Consents.
(b) POSTPONEMENT. Notwithstanding the requirement of Section
8.1(a) above, if any petition to deny (a "Petition") shall have been filed
against an application for the FCC Consents and the Petition contains one or
more allegations regarding the basic qualifications of Sellers or Buyer that
pose a reasonable risk of reversal of such FCC Consent, based on the
Communications Act of 1934, as amended, or the FCC's rules, policies or
decisions then in effect, Buyer may, at its election, upon written notice to
Sellers, postpone the Closing to a date to be agreed upon by Buyer and Sellers
in writing that is not earlier than the fifth (5th) business day, and not later
than the tenth (10th) business day, after such date the FCC Consent shall have
become a Final Order. If the parties cannot agree upon the Closing Date pursuant
to the preceding sentence, the Closing Date shall occur on the date that is the
tenth (10th) business day after the date such FCC Consent shall have become a
Final Order. In the event that a Petition is filed and Buyer elects not to
postpone the Closing and the Closing occurs before the FCC Consent shall have
become a Final Order, if the FCC Consent is reversed pursuant to a Final Order
and the sole basis for such reversal is a finding by the FCC that Buyer is not
qualified to hold the FCC Licenses that are the subject of the FCC Consent,
Buyer shall indemnify Sellers in accordance with Section 10 hereof for all
reasonable expenses incurred by Sellers as a result of the reversal of the FCC
Consent.
(c) CLOSING PLACE. The Closing shall be held at the offices
of Dow, Xxxxxx & Xxxxxxxxx, 0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000, or any other place that is agreed upon by Buyer and
Sellers.
8.2 DELIVERIES BY SELLERS. Prior to or on the Closing Date,
Sellers shall deliver to Buyer the following, in form and substance reasonably
satisfactory to Buyer and its counsel:
(a) TRANSFER DOCUMENTS. Duly executed warranty bills of
sale, deeds, motor vehicle titles, assignments, and other transfer documents
which shall be sufficient to vest good and marketable title to the Assets in the
name of Buyer, free and clear of all 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 interests included in the Real Property Interests
substantially in the form of SCHEDULE 8.2(B).
(c) ARTICLES OF INCORPORATION. A copy of the Articles of
Incorporation of the Company, certified, as of a date not earlier than ten (10)
days prior to the Closing Date, by the Secretary of State of Florida.
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(d) BYLAWS. A copy of the Bylaws of the Company certified,
as of the Closing Date, by its Secretary.
(e) OFFICER'S CERTIFICATE. A certificate, dated as of the
Closing Date, executed on behalf of Sellers by a duly authorized officer
thereof, certifying the satisfaction of the conditions contained in Sections
7.1(a) and (b).
(f) LENDERS CERTIFICATES. Such certificates and
confirmations to Buyer's investors or lenders as Buyer may reasonably request in
connection with obtaining financing for the performance of its payment
obligations hereunder.
(g) CONSENTS. Copies of all instruments evidencing the
Consents.
(h) OPINION OF COUNSEL. An opinion of Sellers' counsel dated
as of the Closing Date, substantially in the form of SCHEDULE 8.2(H).
8.3 DELIVERIES BY BUYER. Prior to or on the Closing Date, Buyer
shall deliver to Sellers the following, in form and substance reasonably
satisfactory to Sellers and their counsel:
(a) PURCHASE PRICE. The Note marked "cancelled" and the Cash
Balance.
(b) OFFICER'S CERTIFICATE. A certificate, dated as of the
Closing Date, executed on behalf of Buyer by a duly authorized officer thereof,
certifying the satisfaction of the conditions contained in Sections 7.2(a) and
(b).
(c) ASSUMPTION AGREEMENTS. Appropriate assumption agreements
pursuant to which Buyer shall assume and undertake to perform Sellers'
obligations under the Licenses and Assumed Contracts insofar as they relate to
the time on and after the Closing Date and arise out of events related to
Buyer's ownership of the Assets or its operation of the Stations on or after 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).
SECTION 9. TERMINATION
9.1 TERMINATION BY SELLERS. This Agreement may be terminated by
Sellers, if Sellers and the Company are not then in material default, upon
written notice to Buyer, upon the occurrence of any of the following:
(a) CONDITIONS. If, on the date that would otherwise be the
Closing Date, Sellers shall have notified Buyer in writing that one or more of
the conditions precedent to the obligations of Sellers set forth in Section 7.2
of this Agreement have not been satisfied or waived in writing by Sellers and
such condition or conditions shall not have been satisfied by Buyer or waived in
writing by Sellers within twenty (20) days following such notice.
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(b) JUDGMENTS. If, on the date that would otherwise be the
Closing Date, Sellers shall have notified Buyer that there is in effect any
judgment, decree, or order that would prevent or make unlawful the Closing and
such judgment, decree or order shall not have been satisfied by Buyer within
twenty (20) days following such notice.
(c) UPSET DATE. If the Closing shall not have occurred by
November 21, 2001; PROVIDED, HOWEVER, that Buyer may extend the date set forth
in this Section 9.1(c) for one additional two (2) year period by providing
written notice of such extension to Sellers no later than August 21, 2001.
(d) BREACH. If Buyer is in material breach of its
representations, warranties or covenants contained herein and such breach is not
cured prior to the date upon which the Closing is scheduled to occur.
(e) TAX CONSEQUENCES. At any time following the date the
Purchase Price is determined pursuant to Section 2.4(a)(i), or, if the Purchase
Price is not determined pursuant to Section 2.4(a)(i), at any time following the
date Sellers shall have received the Panel Valuation Report, if the Company or
its controlling shareholders determine, based on advice of tax counsel or its
other advisors, that the consummation of the transactions contemplated hereby
creates a risk of adverse tax consequences to the Company or its shareholders.
9.2 TERMINATION BY BUYER. This Agreement may be terminated by
Buyer, if Buyer is not then in material default of its obligations hereunder,
upon written notice to Sellers, upon the occurrence of any of the following:
(a) CONDITIONS. If, on the date that would otherwise be the
Closing Date, Buyer shall have notified Sellers in writing that one or more of
the conditions precedent to the obligations of Buyer set forth in Section 7.1 of
this Agreement have not been satisfied or waived in writing by Buyer and such
condition or conditions shall not have been satisfied by Sellers or the Company
or waived in writing by Buyer within twenty (20) days following such notice.
(b) JUDGMENTS. If, on the date that would otherwise be the
Closing Date, Buyer shall have notified Sellers that there is in effect any
judgment, decree, or order that would prevent or make unlawful the Closing and
such judgment, decree or order shall not have been satisfied by Sellers or the
Company within twenty (20) days following such notice.
(c) UPSET DATE. If the Closing shall not have occurred by
November 21, 2001.
(d) BREACH. If Sellers or the Company are in material breach
of their representations, warranties or covenants contained herein and such
breach is not cured prior to the date upon which the Closing is scheduled to
occur.
(e) EVENT OF DEFAULT. There shall have occurred and be
continuing an Event of Default under the Loan Documents.
(f) DAMAGE OR DESTRUCTION. In accordance with the terms of
Section 6.2.
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(g) ENVIRONMENTAL LIABILITY. If any Assessment reveals any
environmental hazards or defects or any condition that could reasonably be
expected to result in significant environmental damages or substantial clean-up
costs, such conditions have had or could reasonably be expected to have a
Company Material Adverse Effect, and such hazards, defects or conditions are not
remedied prior to the Closing Date.
(h) TAX CONSEQUENCES. At any time following the date the
Purchase Price is determined pursuant to Section 2.4(a)(i), or, if the Purchase
Price is not determined pursuant to Section 2.4(a)(i), at any time following the
date Buyer shall have received the Panel Valuation Report, if Buyer determines,
based on advice of tax counsel or its other advisors, that the consummation of
the transactions contemplated hereby creates a risk of adverse tax consequences
to Buyer.
(i) FAIRNESS OPINION. At any time following the date the
Purchase Price is determined pursuant to Section 2.4(a)(i), or, if the Purchase
Price is not determined pursuant to Section 2.4(a)(i), at any time following the
date Buyer shall have received the Panel Valuation Report, if Buyer is unable to
obtain, prior to the Closing Date, a written opinion from an independent
investment banking firm, in form and substance reasonably satisfactory to Buyer,
as to the fairness of the transaction contemplated hereby to Buyer and its
shareholders. Buyer agrees to use commercially reasonable efforts to obtain such
an opinion.
(j) VALUATION. At any time following the date the Purchase
Price is determined pursuant to Section 2.4(a)(i), or, if the Purchase Price is
not determined pursuant to Section 2.4(a)(i), at any time following the date
Buyer shall have received the Panel Valuation Report, if the Fair Market Value
of the Stations, as determined pursuant to Section 6.9, shall have been
determined to be less than the amount of the Purchase Price.
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 any provision of this Agreement, the parties hereto shall have no liability
to each other as a result of such termination. If this Agreement is terminated
by Buyer due to Sellers' or the Company's material breach of their obligations
hereunder, Buyer shall have all rights and remedies available at law or equity,
including the right to seek specific performance as set forth in Section 10.5
hereof. If this Agreement is terminated by Sellers due to Buyer's material
breach of its obligations hereunder, Sellers shall have all rights and remedies
available at law.
9.4 OPTION.
(a) If this Agreement is terminated pursuant to this Section
9 for any reason other than a material breach by Buyer of its obligations
hereunder, the Time Brokerage Agreements, the Boston Affiliation Agreement and
the Programming Agreement (if then in effect) shall remain in full force and
effect in accordance with their respective terms for a period, in the case of
each such agreement, not to exceed ten (10) years from the date hereof, and
Buyer and Sellers shall enter into an Option Agreement effective as of the date
of termination of this Agreement, pursuant to which Sellers shall grant Buyer an
exclusive, irrevocable and freely assignable option (the "Option") to purchase
the Assets (including, without limitation, D P Boston's rights and interests
under the Boston Purchase Documents) for an amount equal to the Purchase Price,
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which shall be paid by Buyer as provided in Section 2.4(c)(i) and (ii) hereof,
and otherwise in accordance with the terms and conditions of an Asset Purchase
Agreement in the form and substance of this Agreement (the "Option Purchase
Agreement"); PROVIDED, HOWEVER, that the Option Purchase Agreement shall not
include the termination rights contained in Sections 9.1(e), 9.2(h), 9.2(i) or
9.2(j) of this Agreement. At any time following the execution of this Agreement,
either Buyer or Sellers may request that the other enter into an Option
Agreement evidencing the parties' agreements set forth in this Section 9.4.
(b) In the event that Buyer does not exercise the Option
within four (4) years from the initial date of the Option Agreement (the
"Appraisal Trigger Date"), either Buyer or Sellers shall have the right to cause
an adjustment to the Purchase Price contained in the Option Purchase Agreement.
If either Buyer or Sellers elects to exercise such right, Sellers and Buyer
shall each appoint one appraiser (NBC shall also have the right to appoint one
appraiser if, at the time of the selection of the appraisers, NBC holds a
non-controlling interest in Buyer, and Buyer agrees to pay the cost of NBC's
appraisal). The appraisers shall have experience in the valuation and appraisal
of broadcast properties. Each appraiser shall have ninety (90) days from the
date of its appointment to render a written appraisal of the fair market value
of the Stations in accordance with the requirements of Section 2.4(a)(iv). The
average of the appraisals shall become the new purchase price for the Assets,
which new purchase price shall be included in and made a part of the Option
Purchase Agreement to be executed by the parties upon Buyer's exercise of the
Option between the Appraisal Trigger Date and the date that is four (4) years
thereafter (the "Second Option Period"). In the event that Buyer does not
exercise the Option prior to the expiration of the Second Option Period, the
parties shall have the right to again select appraisers to determine the fair
market value of the Stations in accordance with the procedures set forth in this
Section 9.4(b). The average of the fair market value of the Stations as
determined by each such appraisal shall become the new purchase price for the
Assets, which new purchase price shall be included in and made a part of the
Option Purchase Agreement to be executed by the parties upon Buyer's exercise of
the Option between the end of the Second Option Period and the expiration of the
Option. The determination of the appraisers notwithstanding, in no event shall
the new purchase price for the Assets included in the Option Purchase Agreement
be less than the amount set forth in Section 2.4(b)(i).
9.5 LIMITATION. Buyer may not rely on the failure of any condition
precedent set forth in Section 7.1 to be satisfied, and Seller may not rely on
the failure of any condition precedent set forth in Section 7.2 to be satisfied,
as a ground for refusing to perform their respective obligations to be performed
by them at the Closing or for termination of this Agreement by such party if
such failure was caused by such party's failure to act in good faith or a breach
of or failure to perform its representations, warranties, covenants or other
obligations in accordance with the terms hereof.
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
three (3) years (the "Indemnity Period"), except that the representations and
warranties contained in Section 3.8 shall survive until the expiration of the
applicable statute of limitations. No claim for indemnification may be asserted
after the expiration of the Indemnity Period, except for claims based on the
breach of any representation or warranty in Section 3.8. Notwithstanding
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anything herein to the contrary, any representation or warranty which is the
subject of a claim for indemnification which is asserted in writing prior to the
expiration of the Indemnity Period shall survive with respect to such claim for
indemnification until the final resolution thereof. 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.
10.2 INDEMNIFICATION BY SELLERS. Notwithstanding the Closing and
regardless of any investigation made at any time by and on behalf of Buyer or
any information Buyer may have, Sellers hereby agree 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 Sellers contained in this Agreement or in any certificate, document,
or instrument delivered to Buyer under this Agreement.
(b) Any and all obligations of Sellers 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 the Stations 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 for losses, liabilities or
damages resulting from Buyer's conduct.
(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. Notwithstanding the Closing, and
regardless of any investigation made at any time by or on behalf of Sellers or
any information Sellers may have, Buyer hereby agrees to indemnify and hold
Sellers harmless against and with respect to, and shall reimburse Sellers 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 Sellers under this Agreement.
(b) Any and all obligations of Sellers assumed by Buyer
pursuant to this Agreement, including obligations arising under the Assumed
Contracts and Licenses after the Closing Date.
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(c) Any and all losses, liabilities, or damages resulting
from the operation or ownership of the Stations on and after the Closing, or
resulting or arising from Buyer's conduct under the Time Brokerage Agreements,
Boston Affiliation Agreement or Programming Agreement.
(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 (5)
days after written notice of such action, suit, or proceeding was given to
Claimant.
(b) With respect to claims solely between the parties,
following receipt of notice from the Claimant of a claim, the Indemnifying Party
shall have thirty (30) days to make such investigation of the claim as the
Indemnifying Party deems necessary or desirable. For the purposes of such
investigation, the Claimant agrees to make available to the Indemnifying Party
and/or its authorized representatives the information relied upon by the
Claimant to substantiate the claim. If the Claimant and the Indemnifying Party
agree at or prior to the expiration of the thirty-day period (or any mutually
agreed upon extension thereof) to the validity and amount of such claim, the
Indemnifying Party shall immediately pay to the Claimant the full amount of the
claim. If the Claimant and the Indemnifying Party do not agree within the
thirty-day period (or any mutually agreed upon extension thereof), the Claimant
may seek appropriate remedy under the arbitration provisions of this Agreement.
(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, 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 indemnification 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
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forth in this Section 10.4, any indemnification claims by such parties shall be
made by and through the Claimant.
10.5 LIMITATIONS ON INDEMNIFICATION. No indemnification shall be
required to be made hereunder by an Indemnifying Party until the aggregate
amount of all indemnification claims against the Indemnifying Party exceeds
Fifty Thousand Dollars ($50,000), PROVIDED that once such claims exceed Fifty
Thousand Dollars ($50,000), the Indemnifying Party shall be required to
indemnify the Claimant with respect to all indemnifiable claims, including
indemnifiable claims for the initial Fifty Thousand Dollars ($50,000).
Notwithstanding anything to the contrary contained herein, in no event shall any
Indemnifying Party's obligations for indemnification under this Agreement exceed
in the aggregate the difference between the total cash amount received by the
Company at Closing less the Verified Capital Amount (such difference is the
"Indemnification Limit"), and Buyer hereby waives and releases any recourse
against Sellers, and Sellers each hereby waive and release any recourse against
Buyer, for indemnification above the Indemnification Limit.
10.6 SPECIFIC PERFORMANCE. The parties recognize that if Sellers
breach this Agreement and refuse to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled, in addition to any other remedies
that may be available, including money damages, to obtain specific performance
of the terms of this Agreement. If any action is brought by Buyer to enforce
this Agreement, Sellers shall waive the defense that there is an adequate remedy
at law.
10.7 ATTORNEYS' FEES. In the event of a default by any 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. Except as otherwise provided in this
Agreement, each party shall pay its own expenses incurred in connection with the
authorization, preparation, execution, and performance of this Agreement,
including all fees and expenses of counsel, accountants, agents, and
representatives, except that Buyer and Sellers shall each pay one-half of (i)
the filing fees required by the FCC in connection with the applications for the
FCC Consents, (ii) the filing fees required by the FTC under the HSR Act, and
(iii) any federal, state, or local sales or transfer tax arising in connection
with the conveyance of the Assets by Sellers to Buyer pursuant to this
Agreement. Each party shall be responsible for all fees or commissions payable
to any finder, broker, advisor, or similar person retained by or on behalf of
such party.
11.2 ARBITRATION. Except as otherwise provided to the contrary
below, any dispute arising out of or related to this Agreement that Sellers and
Buyer are unable to resolve by themselves shall be settled by arbitration in
Washington, D.C. by a panel of three (3) neutral arbitrators who shall be
selected in accordance with the procedures set forth in the commercial
arbitration rules of the American Arbitration Association. The persons selected
as arbitrators shall have prior experience in the broadcasting industry but need
not be professional arbitrators. Before undertaking to resolve the dispute, each
arbitrator shall be duly sworn faithfully and fairly to hear and examine the
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matters in controversy and to make a just award according to the best of his or
her understanding. The arbitration hearing shall be conducted in accordance with
the commercial arbitration rules of the American Arbitration Association. The
written decision of a majority of the arbitrators shall be final and binding on
Sellers and Buyer. The costs and expenses of the arbitration proceeding shall be
assessed among Sellers and Buyer in a manner to be decided by a majority of the
arbitrators, and the assessment shall be set forth in the decision and award of
the arbitrators. Judgment on the award, if it is not paid within thirty days,
may be entered in any court having jurisdiction over the matter. No action at
law or suit in equity based upon any claim arising out of or related to this
Agreement shall be instituted in any court by Sellers or Buyer against the other
except (i) an action to compel arbitration pursuant to this Section, (ii) an
action to enforce the award of the arbitration panel rendered in accordance with
this Section, or (iii) a suit for specific performance pursuant to Section 10.5.
11.3 NOTICES. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall be (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 Buyer: Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
-and-
Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: General Counsel
With a copy to: Xxxx X. Xxxxx, Xx., Esq.
Dow, Xxxxxx & Xxxxxxxxx
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
and
National Broadcasting Company, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx and
Xxxxx Xxxxxxxx, Esq.
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If to Sellers or the Company: D P, Media Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxx
With a copy to: Xxxx X. Xxxxxxxx, Esquire
Xxxxx, Xxxxxxxx & Tannenwald
0000 Xxxxx Xxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
and
National Broadcasting Company, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx and
Xxxxx Xxxxxxxx, Esq.
and
Xxxxxx X. Xxxxxxx, Esq.
Holland and Knight
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxx, XX 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 11.3.
11.4 BENEFIT AND BINDING EFFECT. No party hereto may assign this
Agreement without the prior written consent of the other parties hereto;
PROVIDED, HOWEVER, that Buyer may assign its rights and obligations under this
Agreement, in whole or in part, to one or more subsidiaries or commonly
controlled affiliates of Buyer without seeking or obtaining Sellers' prior
approval, provided that such assignment shall not constitute a release of
Buyer's obligations hereunder, and Buyer may collaterally assign its rights and
interests hereunder to its lenders without seeking or obtaining Sellers' prior
approval. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
11.5 FURTHER ASSURANCES. The parties shall take any actions and
execute any other documents that may be necessary or desirable to the
implementation and consummation of this Agreement, including, in the case of
Sellers, 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.
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11.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED,
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT REGARD
TO THE CHOICE OF LAW PROVISIONS THEREOF).
11.7 HEADINGS. The headings in this Agreement are included for ease
of reference only and shall not control or affect the meaning or construction of
the provisions of this Agreement.
11.8 GENDER AND NUMBER. Words used in this Agreement, regardless of
the gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine, or neuter, and any other number,
singular or plural, as the context requires.
11.9 ENTIRE AGREEMENT. This Agreement, the schedules hereto, and
all documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
among Buyer and Sellers with respect to the subject matter hereof. This
Agreement supersedes all prior negotiations between the parties and cannot be
amended, supplemented, or changed except by an agreement in writing that makes
specific reference to this Agreement and which is signed by the party against
which enforcement of any such amendment, supplement, or modification is sought.
11.10 WAIVER OF COMPLIANCE; CONSENTS. Except as otherwise provided
in this Agreement, any failure of any of the parties to comply with any
obligation, representation, warranty, covenant, agreement, or condition herein
may be waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, representation, warranty,
covenant, agreement, or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. Whenever this Agreement
requires or permits consent by or on behalf of any party hereto, such consent
shall be given in writing in a manner consistent with the requirements for a
waiver of compliance as set forth in this Section 11.10.
11.11 PRESS RELEASE. Prior to the Closing, no party hereto 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 any party from
promptly making all filings with governmental authorities as may, in its
reasonable judgement be required or advisable in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
11.12 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. All judicial
proceedings permitted by the terms hereof and brought against Buyer or Sellers
that arise out of or relate to this Agreement may be brought in any state or
federal court of competent jurisdiction in the State of Florida and, by
execution and delivery of this Agreement, Buyer and Sellers each accept for
itself and in connection with its properties, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement. Sellers and, prior to the Closing,
the Company, designate and appoint Xxxxx Xxxxxx, and Buyer and, after the
Closing, the Company, designate and appoint Xxxxxx X. Xxxxxx, and such other
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persons as may hereafter be selected by Buyer or Sellers, as their respective
agent to receive on their behalf service of all process in any such proceedings
in any such court, such service being hereby acknowledged by Buyer and Sellers
to be effective and binding service in every respect. A copy of any such process
so served shall be sent to Buyer and Sellers in accordance with Section 11.3. If
any agent appointed by Buyer or Sellers refuses to accept service, Buyer and
Sellers hereby agree that service upon it by mail shall constitute sufficient
notice. Nothing herein shall affect the right to serve process in any other
manner permitted by law or shall limit the right of either party to bring
proceedings against the other in the courts of any other jurisdiction.
11.13 NO RECOURSE. Buyer and Sellers hereby agree that no Person
shall have any recourse hereunder or under any documents or instruments
delivered in connection herewith (including, without limitation, the Buyer
Ancillary Agreements and Seller Ancillary Agreements) against NBC or any current
or future director, officer, employee, or agent of NBC, whether by any legal or
equitable proceeding or arbitration, or by virtue of any statute, regulation or
other applicable law, or otherwise.
11.14 REVISED SCHEDULES. Notwithstanding anything to the contrary
contained herein, if Sellers have not, as of the date hereof (the "Signing
Date"), completed and/or delivered one or more of the Schedules referred to in
this Agreement and required to be delivered by them pursuant hereto or has not
delivered one or more of the documents required to be delivered by them pursuant
hereto, then Sellers shall be permitted to complete and deliver such Schedules
or documents to Buyer after the Signing Date, but in no event later than
December 3, 1999; PROVIDED, HOWEVER, that Sellers shall not have the right to
complete or otherwise modify Schedules 2.2, 3.4, 3.8, 3.9, 3.13, 3.15 and 3.22,
which Schedules are correct and complete in the form attached hereto. Buyer
shall be deemed to have accepted any such revised or newly delivered Schedules
and/or documents unless, by no later than 5:00 p.m., Eastern Standard Time, on
December 10, 1999, it shall have delivered to Sellers a notice signed by an
officer of Buyer to the effect that such revised or newly delivered Schedules
and/or documents reflect matters that could reasonably be expected to result in
an increase in the obligations of Buyer hereunder or under the Buyer Ancillary
Agreements (other than obligations under Contracts not relating to indebtedness
for borrowed money entered into by a Seller in the ordinary course of business
prior to the date hereof and that satisfy the representations and warranties
contained in the last three sentences of Section 3.5) or any losses, liabilities
or damages to Buyer (collectively, the "New Liabilities"), and, as a result,
Buyer elects, in its sole discretion, to either terminate this Agreement (a
"Termination Notice") or reduce the Cash Balance by an amount equal to the New
Liabilities (a "Reduction Notice"). If Buyer delivers to Sellers a Termination
Notice in accordance with the preceding sentence, this Agreement shall be
terminated effective as of the date Sellers receive the Termination Notice. If
Buyer delivers to Seller a Reduction Notice, the amount of the Cash Balance
shall be reduced by the amount of the New Liabilities. If approval of such
revised or newly delivered Schedules and/or documents is granted or is deemed
granted, any Schedules attached hereto as of the Signing Date and delivered by
Sellers which have subsequently been revised shall be deemed to be amended in
accordance with such revised Schedules as of the Signing Date and such
late-delivered Schedules and/or documents shall be deemed delivered by Sellers
as of the Signing Date.
11.15 COUNTERPARTS. This Agreement may be signed in counterparts
with the same effect as if the signature on each counterpart were upon the same
instrument.
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11.16 TIME BROKERAGE AGREEMENT FEE. Upon the earlier to occur of (i)
the termination of this Agreement for any reason other than a material breach by
Sellers of their representations, warranties, covenants or agreements hereunder,
(ii) the failure of the Closing to take place within one (1) year from execution
of this Agreement for any reason other than a material breach by Sellers of
their representations, warranties, covenants or agreements hereunder, and (iii)
the parties' failure to close the transactions contemplated by this Agreement
within forty (40) days of the date of FCC Consent, unless such failure to close
is a result of Sellers' material breach of their representations, warranties or
covenants hereunder, Buyer shall be required to make, commencing upon the
occurrence of such event, a payment to Sellers pursuant to the Time Brokerage
Agreements and the Boston Affiliation Agreement in an amount per annum, in the
aggregate for all Time Brokerage Agreements and the Boston Affiliation
Agreement, equal to five percent (5%) of the Verified Capital Amount, payable in
advance in twelve equal monthly payments (the "Time Brokerage Agreements Fee").
Such payments of Time Brokerage Agreement Fees shall continue to be paid for the
duration of the Time Brokerage Agreements.
[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.
SELLERS: D P MEDIA, INC.; D P MEDIA OF BATTLE CREEK, INC.; D P MEDIA LICENSE OF BATTLE CREEK, INC.;
D P MEDIA OF BOSTON, INC.; D P MEDIA LICENSE OF BOSTON, INC.; D P MEDIA OF MARTINSBURG,
INC.; D P MEDIA LICENSE OF MARTINSBURG, INC.; D P MEDIA OF MILWAUKEE, INC.; D P MEDIA
LICENSE OF MILWAUKEE, INC.; D P MEDIA OF XXXXXXX XXXXXX, INC.; D P MEDIA LICENSE OF XXXXXXX
XXXXXX, INC.; D P MEDIA OF ST. LOUIS, INC.; D P MEDIA LICENSE OF ST. LOUIS, INC.; RDP
COMMUNICATIONS, INC.; RDP COMMUNICATIONS OF INDIANAPOLIS, INC.; RDP COMMUNICATIONS LICENSE
OF INDIANAPOLIS, INC.; CAP COMMUNICATIONS, INC.; CAP COMMUNICATIONS OF NEW LONDON, INC.;
CAP COMMUNICATIONS LICENSE OF NEW LONDON, INC.; CAP COMMUNICATIONS OF BOSTON, INC.; CHANNEL
66 OF TAMPA, INC.; and CHANNEL 46 OF BOSTON, INC.
By: ______________________________
Name: Xxxxx Xxxxxx
Title: Vice President
BUYER: XXXXXX COMMUNICATIONS CORPORATION
By: ______________________________
Name:
Title:
NATIONAL BROADCASTING COMPANY, INC. HEREBY JOINS IN THE EXECUTION OF THIS ASSET PURCHASE
AGREEMENT SOLELY FOR THE PURPOSE OF AGREEING TO THE PROVISIONS OF SECTIONS 2.4, 6.9 AND
11.13 HEREOF.
NATIONAL BROADCASTING COMPANY, INC.
By: _____________________________
Name:
Title:
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