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EXHIBIT 10.170
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AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
BY AND AMONG
XXXXXX COMMUNICATIONS OF BUFFALO-51, INC.,
XXXX BROADCASTING OF NEW YORK, L.L.C.,
XXXXXXX XXXX
AND
XXXXXX COMMUNICATIONS CORPORATION
* * *
APRIL 15, 1997
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TABLE OF CONTENTS
RECITALS..........................................................................................................1
AGREEMENTS........................................................................................................1
SECTION 1. DEFINITIONS...........................................................................................1
"Accounts Receivable"........................................................................................2
"Assets".....................................................................................................2
"Assumed Contracts"..........................................................................................2
"Business Day"...............................................................................................2
"Closing"....................................................................................................2
"Closing Date"...............................................................................................2
"Consents"...................................................................................................2
"Contracts"..................................................................................................2
"FCC"........................................................................................................2
"FCC Consent"................................................................................................2
"FCC Licenses"...............................................................................................2
"Final Order"................................................................................................3
"Intangibles"................................................................................................3
"Leasehold Interests"........................................................................................3
"Licenses"...................................................................................................3
"Permitted Liens"............................................................................................3
"Person".....................................................................................................3
"Purchase Price".............................................................................................3
"Stations"...................................................................................................3
"Tangible Personal Property".................................................................................3
SECTION 2. PURCHASE AND SALE OF ASSETS...........................................................................4
2.1 Agreement to Sell and Buy.............................................................................4
2.2 Excluded Assets......................................................................................5
2.3 Purchase Price........................................................................................5
(a) Prorations......................................................................................5
(b) Taxes...........................................................................................5
(c) Manner of Determining Adjustments...............................................................6
2.4 Payment of Purchase Price.............................................................................6
2.5 Assumption of Liabilities and Obligations.............................................................7
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER..............................................................7
3.1 Standing..............................................................................................7
3.2 Authorization and Binding Obligation..................................................................8
3.3 Absence of Conflicting Agreements.....................................................................8
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3.4 Licenses........................................................................................8
3.5 Title to and Condition of Leasehold Interests...................................................8
3.6 Title to and Condition of Tangible Personal Property............................................9
3.7 Contracts.......................................................................................9
3.8 Insurance.......................................................................................9
3.9 Reports.........................................................................................9
3.10 Taxes...........................................................................................9
3.11 Claims and Legal Actions.......................................................................10
3.12 Environmental; Hazardous Materials.............................................................10
3.13 Compliance with Laws...........................................................................10
3.14 Full Disclosure................................................................................10
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER........................................................10
4.1 Organization, Standing and Authority...........................................................10
4.2 Authorization and Binding Obligation...........................................................11
4.3 Absence of Conflicting Agreements..............................................................11
4.4 Full Disclosure................................................................................11
4.5 Buyer Qualifications...........................................................................11
SECTION 5. OPERATIONS OF THE STATIONS PRIOR TO CLOSING....................................................11
5.1 Generally......................................................................................11
5.2 Contracts......................................................................................12
5.3 Disposition of Assets..........................................................................12
5.4 Encumbrances...................................................................................12
5.5 Licenses.......................................................................................12
5.6 Rights.........................................................................................12
5.7 Access to Information..........................................................................12
5.8 Maintenance of Assets..........................................................................12
5.9 Insurance......................................................................................13
5.10 Consents.......................................................................................13
5.11 Books and Records..............................................................................13
5.12 Notification...................................................................................13
5.13 Compliance with Laws...........................................................................13
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS...............................................................13
6.1 FCC Consent....................................................................................13
6.2 Control of the Stations........................................................................14
6.3 Risk of Loss...................................................................................14
6.4 Confidentiality................................................................................14
6.5 Cooperation....................................................................................14
6.6 Access to Books and Records....................................................................15
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6.7 Broker.........................................................................................15
6.8 Parent Guaranty................................................................................15
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER
AT CLOSING.....................................................................................15
7.1 Conditions to Obligations of Buyer.............................................................15
(a) Representations and Warranties........................................................15
(b) Covenants and Conditions..............................................................15
(c) Consents..............................................................................15
(d) FCC Consent...........................................................................15
(e) Governmental Authorizations...........................................................15
(g) Deliveries............................................................................16
(h) Release of Liens......................................................................16
(i) Concurrent Closing....................................................................16
7.2 Conditions to Obligations of Seller............................................................16
(a) Representations and Warranties........................................................16
(b) Covenants and Conditions..............................................................16
(c) Deliveries............................................................................16
(d) FCC Consent...........................................................................16
(e) Concurrent Closing....................................................................17
SECTION 8. CLOSING AND CLOSING DELIVERIES.................................................................17
8.1 Closing........................................................................................17
(a) Closing Date..........................................................................17
(b) Closing Place.........................................................................17
8.2 Deliveries by Seller...........................................................................17
(a) Transfer Documents....................................................................17
(b) Consents..............................................................................17
(c) Certificates..........................................................................17
(d) Licenses, Contracts, Business Records, Etc............................................17
(e) Opinion of Counsel....................................................................18
(g) Noncompetition Agreement..............................................................18
8.3 Deliveries by Buyer............................................................................18
(a) Purchase Price........................................................................18
(b) Assumption Agreements.................................................................18
(c) Certificate...........................................................................18
(d) Opinion of Counsel....................................................................18
(f) Noncompetition Agreement..............................................................19
SECTION 9. TERMINATION....................................................................................19
9.1 Termination by Seller..........................................................................19
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(a) Conditions............................................................................19
(b) Judgments.............................................................................19
(c) Upset Date............................................................................19
9.2 Termination by Buyer...........................................................................19
(a) Conditions............................................................................19
(b) Judgments.............................................................................19
(c) Upset Date............................................................................19
9.3 Rights on Termination..........................................................................19
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES..............................................................20
10.1 Representations and Warranties.................................................................20
10.2 Indemnification by Seller......................................................................20
10.3 Indemnification by Buyer.......................................................................20
10.4 Procedure for Indemnification..................................................................21
10.5 Limitation.....................................................................................22
SECTION 11. MISCELLANEOUS..................................................................................22
11.1 Attorneys' Fees................................................................................22
11.2 Fees and Expenses..............................................................................22
11.3 Arbitration....................................................................................22
11.4 Notices........................................................................................23
11.5 Benefit and Binding Effect.....................................................................24
11.6 Further Assurances.............................................................................24
11.7 GOVERNING LAW..................................................................................24
11.8 Headings.......................................................................................25
11.9 Gender and Number..............................................................................25
11.10 Entire Agreement...............................................................................25
11.11 Waiver of Compliance; Consents.................................................................25
11.12 Counterparts...................................................................................25
11.13 Press Releases.................................................................................25
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LIST OF SCHEDULES
Schedule 3.3 - Consents
Schedule 3.4 - Licenses
Schedule 3.5 - Leasehold Interests
Schedule 3.6 - Personal Property
Schedule 3.7 - Contracts
Schedule 3.8 - Insurance
Schedule 8.2(e) - Opinion of Seller's Counsel
Schedule 8.2(i) - Noncompetition Agreement
Schedule 8.3(d) - Opinion of Buyer's Counsel
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AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
This AMENDED AND RESTATED ASSET PURCHASE AGREEMENT is dated as of April
15, 1997, by and among Xxxxxx Communications of Buffalo-51, Inc., a Florida
corporation ("Buyer"), Xxxx Broadcasting Company of New York, L.L.C., an Alabama
limited liability company ("FBCNY"), Xxxxxxx Xxxx ("Xxxx" and, collectively with
FBCNY, the "Seller") and, for purposes of Section 6.8 hereof, Xxxxxx
Communications Corporation, a Delaware corporation ("PCC").
RECITALS
A. Seller is the licensee of low power television station W69CS,
Channel 69, Buffalo, New York ("Buffalo LPTV") and W63BM, Rochester, New York
("Rochester LPTV" and, together with Buffalo LPTV, collectively the "Stations"),
pursuant to authorizations issued by the Federal Communications Commission (the
"FCC").
B. Seller is the FCC permittee of television station WAQF-TV, Batavia,
New York (the "Construction Permit").
C. Seller, Buyer and PCC have entered into an Asset Purchase Agreement
dated as of April 15, 1997 (the "Original Agreement"), pursuant to which Seller
has agreed to sell, and Buyer has agreed to buy, substantially all the assets
that are owned by Seller or in which Seller has a transferable interest and
which are used or useful in the business or operations of the Stations and the
Construction Permit, for the price and on the terms and conditions set forth in
the Original Agreement.
D. Seller and Buyer desire to amend and restate the Original Agreement
as set forth herein.
AGREEMENTS
In consideration of the above recitals and of the mutual agreements and
covenants contained in this Agreement, Buyer and Seller, intending to be bound
legally, agree as follows:
SECTION 1. DEFINITIONS
The following terms, as used in this Agreement, shall have the meanings
set forth in this Section:
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"Accounts Receivable" means the right of Seller to payment for the sale
of advertising and/or programming time on the Station prior to the Closing Date.
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Buyer under the Agreement, as specified in Section 2.1.
"Assumed Contracts" means (i) all Contracts that Buyer has marked with
an asterisk (*) on Schedule 3.7 to indicate that such Contract will be assumed
by Buyer upon its purchase of the Stations, and (ii) any other Contracts entered
into by Seller between the date of this Agreement and the Closing Date that
Buyer agrees in writing to assume.
"Business Day" means any day other than a Saturday, Sunday or legal
holiday.
"Closing" means the consummation of the purchase and sale of the Assets
pursuant to this Agreement in accordance with the provisions of Section 8.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to Buyer or
otherwise to consummate the transactions contemplated by this Agreement.
"Construction Permit" shall have the meaning set forth in the Recitals
to this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses, and
other agreements (including leases for personal or real property and employment
agreements), written or oral (including any amendments and other modifications
thereto) to which Seller is a party or which are binding upon Seller and which
relate to or affect the Assets or the business or operations of the Stations,
and (i) which are in effect on the date of this Agreement or (ii) which are
entered into by Seller between the date of this Agreement and the Closing Date.
"FCC" shall have the meaning set forth in the Recitals to this
Agreement.
"FCC Consent" means action by the FCC granting its consent to the
assignment of the FCC Licenses to Buyer as contemplated by this Agreement.
"FCC Licenses" means the Construction Permit and all Licenses issued by
the FCC to Seller in connection with the business or operations of the Stations.
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"Final Order" means an action by the FCC that has not been reversed,
stayed, enjoined, set aside, annulled, or suspended, and with respect to which
no requests are pending for administrative or judicial review, reconsideration,
appeal, or stay, and the time for filing any such requests and the time for the
FCC to set aside the action on its own motion have expired.
"Intangibles" means all copyrights, trademarks, trade names, service
marks, service names, licenses, patents, permits, jingles, proprietary
information, technical information and data, machinery and equipment warranties,
and other similar intangible property rights and interests (and any goodwill
associated with any of the foregoing) applied for, issued to, or owned by Seller
or under which Seller is licensed or franchised and which are used or useful in
the business and operations of the Stations, together with any additions thereto
between the date of this Agreement and the Closing Date.
"KTVC-TV Purchase Agreement" means the Asset Purchase Agreement dated
as of the date hereof, among Xxxxxx Communications of Cedar Rapids-48, Inc. and
Xxxx Broadcasting Company of Iowa, Inc. concerning the sale of the assets used
or useful in the business or operations of television station KTVC-TV, Cedar
Rapids, Iowa.
"Leasehold Interests" means Seller's interests in leaseholds and
subleaseholds, easements, licenses, rights to access, and rights of way, and
other improvements thereon, which are used or useful in the business or
operations of the Stations, together with any additions thereto between the date
of this Agreement and the Closing Date.
"Licenses" means all licenses, permits, and other authorizations issued
by the FCC, the Federal Aviation Administration, or any other federal, state, or
local government authorities to Seller in connection with the conduct of the
business or operations of the Stations, or with respect to the Construction
Permit together with any additions thereto between the date of this Agreement
and the Closing Date.
"Permitted Liens" means liens for taxes not yet due and payable and
liens created by the operation of the Leasehold Interests.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, or any
governmental entity.
"Purchase Price" shall have the meaning set forth in Section 2.3
hereof.
"Stations" shall have the meaning set forth in the Recitals to this
Agreement.
"Tangible Personal Property" means all machinery, equipment, tools,
furniture, leasehold improvements, office equipment, plant, inventory, spare
parts, and other tangible
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personal property which is owned by Seller or in which Seller has an interest
and which is used or useful in 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, but excluding any Tangible Personal Property consumed in
the ordinary course of business between the date hereof and the Closing Date.
SECTION 2. PURCHASE AND SALE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and conditions set
forth in this Agreement, Seller hereby agrees to sell, transfer, assign and/or
deliver to Buyer on the Closing Date, and Buyer agrees to purchase and accept,
all of the assets and property interests owned by Seller (or in which Seller has
a property interest) that are either specifically listed on the Schedules hereto
or are both (i) used or useful in connection with the conduct of the business or
operations of the Stations and (ii) located at the transmitter sites identified
in Schedule 3.6 hereto, together with any additions thereto between the date of
this Agreement and the Closing Date, but excluding the assets described in
Section 2.2 hereof, free and clear of any claims, liabilities, security
interests, mortgages, liens, pledges, conditions, charges, or encumbrances of
any nature whatsoever (except for Permitted Liens), including the following:
(a) The Tangible Personal Property;
(b) The Leasehold Interests;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles, including the goodwill and call signs of the
Stations, if any;
(f) All choses in action of Seller relating to the Stations that
are assignable to Buyer as provided herein;
(g) All records required by the FCC to be kept by the Stations and
copies of all other books and records which belong to Seller and are within its
possession and control relating to the business or operations of the Stations
(exclusive of corporate, financial and accounting records) including executed
copies of the Assumed Contracts; and
(h) The Construction Permit.
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2.2 Excluded Assets. The Assets shall exclude the following assets:
(a) Cash or cash equivalents on hand as of the Closing Date; any
insurance policies, letters of credit, or other similar items and cash surrender
value in regard thereto; and any stocks, bonds, certificates of deposit and
similar securities or other investments;
(b) Any pension, profit sharing or employee benefit plans and all
contracts related thereto, and any collective bargaining agreements;
(c) All books and records relating to Seller's internal corporate
organization or internal financial matters;
(d) The Accounts Receivable;
(e) Any Contracts not included in the Assumed Contracts, including,
without limitation, all affiliation agreements relating to the Stations; and
(f) Any claims, rights and interest in and to any refunds of
federal, state or local franchise, income or other taxes or fees for periods
prior to the Closing Date.
2.3 Purchase Price. The purchase price for the Assets and the
Noncompetition Agreement shall be Two Million Seven Hundred Dollars ($2,700,000)
plus such expenses incurred in connection with obtaining the Construction Permit
as approved by the FCC but not to exceed, in any event, Three Hundred Thousand
Dollars ($300,000) (the "Purchase Price"), adjusted as provided below:
(a) Prorations. The Purchase Price shall be increased or decreased
as required to effectuate the proration of expenses as of 11:59 p.m., Eastern
Standard Time, on the day prior to the Closing Date. All expenses arising from
the operation of the Stations, including business and license fees, utility
charges, real and personal property taxes and assessments levied against the
Assets, property and equipment rentals, applicable copyright or other fees,
sales and service charges, and prepaid and deferred items, shall be prorated
between Buyer and Seller in accordance with the principle that Seller shall be
responsible for all expenses, costs, and liabilities allocable to the period
prior to the Closing Date, and Buyer shall be responsible for all expenses,
costs, and obligations allocable to the period on and after the Closing Date.
Notwithstanding the preceding sentence, there shall be no adjustment for, and
Seller shall remain solely liable with respect to, any Contracts not included in
the Assumed Contracts and any other obligation or liability not being assumed by
Buyer in accordance with Section 2.5.
(b) Taxes. Except for real and personal property taxes and
assessments incurred against the Assets, there shall be no proration or
adjustment for income taxes or any
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other taxes with respect to the Stations or the Assets which shall be Seller's
sole responsibility for all periods prior to the Closing Date. All taxes arising
from the transfer of the Assets hereunder shall be Seller's responsibility
pursuant to Section 11.2 hereof.
(c) Manner of Determining Adjustments. The adjustments and
prorations to the Purchase Price pursuant to Section 2.3(a) will be determined
in accordance with the following procedures:
(i) Seller shall prepare and deliver to Buyer not later than
five (5) Business Days prior to the Closing Date a preliminary settlement
statement, which statement shall set forth Seller's good faith estimate of the
adjustments to the Purchase Price under Section 2.3(a) hereof.
(ii) Buyer and Seller shall use their good faith efforts to
agree upon the adjustments under Section 2.3(a) hereof prior to the Closing.
(iii) No later than forty-five (45) days after the Closing
Date, Buyer will deliver to Seller a statement setting forth Buyer's
determination of the adjustments to the Purchase Price pursuant to Section
2.3(a) hereof. If Seller disputes the amount of the adjustments to the Purchase
Price determined by Buyer, they shall deliver to Buyer, within thirty (30) days
after their receipt of Buyer's statement, Seller's statement setting forth their
determination of the amount of the adjustments to the Purchase Price and the
basis for their dispute in reasonable detail. If Seller notifies Buyer of their
acceptance of Buyer's statement, or if Seller fails to deliver the Seller's
statement within the thirty (30) day period specified in the preceding sentence,
Buyer's determination of the adjustments pursuant to Section 2.3(a) hereof shall
be conclusive and binding on the parties.
(iv) After the Closing, Buyer and Seller shall use good faith
efforts to resolve any dispute involving the determination of the adjustments to
the Purchase Price under Section 2.3(a) hereof. If the parties are unable to
resolve the dispute within fifteen (15) days following the delivery of Seller's
statement described above, Buyer and Seller shall jointly designate and retain,
with fees and expenses to be borne equally by Seller and Buyer, an independent
certified public accountant mutually acceptable to Seller and Buyer who shall be
knowledgeable and experienced in the operation of television broadcasting, to
resolve the dispute within thirty (30) days. The accountant's resolutions of the
dispute shall be final and binding on the parties, and a judgment may be entered
thereon in any court of competent jurisdiction.
2.4 Payment of Purchase Price.
(a) At the Closing, Buyer shall pay to Seller the Purchase
Price adjusted pursuant to Section 2.3(a) hereof by federal wire transfer of
immediately available funds
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pursuant to wire instructions delivered by Seller at least two (2) Business Days
prior to the Closing Date.
(b) If as a result of the final determination of the adjustments to
the Purchase Price pursuant to Section 2.3(c) following the Closing, (i) Buyer
is determined to owe an amount to Seller, Buyer shall pay such amount to Seller
in immediately available funds within five (5) Business Days of the date of such
final determination or (ii) Seller is determined to owe an amount to Buyer,
Seller shall pay such amount to Buyer in immediately available funds within five
(5) Business Days of the date of such final determination. The amount of the
payment made in accordance with this Section 2.4(b) shall bear interest at a per
annum rate equal to the "prime rate," as published in the Money Rates column of
the Eastern Edition of The Wall Street Journal on the Monday of the week in
which the Closing occurs, calculated from the Closing Date to the date such
payment is made to Seller or Buyer, as the case may be, and payable with the
amount of such payment.
2.5 Assumption of Liabilities and Obligations. As of the Closing Date,
Buyer shall assume and undertake to pay, discharge, and perform all obligations
and liabilities of Seller under the Licenses and the Assumed Contracts to the
extent that either (i) the obligations and liabilities relate to the period from
and after the Closing Date or (ii) the Purchase Price was reduced pursuant to
Section 2.3(a) hereof as a result of the proration of such obligations and
liabilities. Buyer shall not assume any other obligations or liabilities of
Seller, including (i) any obligations or liabilities under any Contract not
included in the Assumed Contracts, (ii) any obligations or liabilities under the
Assumed Contracts relating to the period prior to the Closing Date, (iii) any
claims or pending litigation or proceedings relating to the operation of the
Stations prior to the Closing, (iv) any obligations or liabilities of Seller
under any employee pension, retirement, or other benefit plans or with respect
to commissions, wages, bonuses, incentive payments, vacation pay, sick leave,
severance benefits, or other benefits of employees or former employees of Seller
or their beneficiaries, (v) any obligations or liabilities of Seller with
respect to any Excluded Assets, or (vi) any obligations or liabilities caused
by, arising out of, or resulting from any action or omission of Seller prior to
the Closing.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Standing. Seller is a limited liability company duly organized,
validly existing, and in good standing under the laws of the State of Alabama.
Seller has all requisite corporate power and authority to execute and deliver
this Agreement and the documents contemplated hereby, and to perform and comply
with all of the terms, covenants, and conditions to be performed and complied
with by Seller hereunder and thereunder.
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3.2 Authorization and Binding Obligation. The execution, delivery, and
performance of this Agreement by Seller have been duly authorized by all
necessary actions on the part of Seller. This Agreement has been duly executed
and delivered by Seller and constitutes the legal, valid, and binding obligation
of Seller and Xxxx, enforceable against Seller and Xxxx in accordance with its
terms except as the enforceability of this Agreement may be affected by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally
and by judicial discretion in the enforcement of equitable remedies.
3.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents listed on Schedule 3.3, the execution, delivery and the performance of
this Agreement and the documents contemplated hereby (with or without the giving
of notice, the lapse of time, or both): (i) will not conflict with the Articles
of Organization of Seller; (ii) will not conflict with, result in a breach of,
or constitute a default under, any law, judgment, order, ordinance, injunction,
decree, rule, regulation, or ruling of any court or governmental
instrumentality; (iii) will not conflict with, constitute grounds for
termination of, result in a breach of, constitute a default under, or accelerate
or permit the acceleration of any performance required by the terms of, any
agreement, instrument, license, or permit to which Seller is a party or by which
Seller may be bound; and (iv) 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 includes a true and complete list of the
Licenses. Seller has delivered to Buyer true and complete copies of the Licenses
(including any and all amendments and other modifications thereto) listed on
Schedule 3.4. The Licenses listed on Schedule 3.4 have been validly issued and
the Seller is the authorized legal holder thereof. The FCC Licenses comprise all
of the licenses, permits and other authorizations required from the FCC for the
conduct of the business or operations of the Stations in accordance with
applicable laws and in the manner and to the extent they are now conducted and
the Construction Permit authorizes construction of a new full power television
station to operate on Channel 51 in Batavia, New York. None of the Licenses
listed on Schedule 3.4 is subject to any restriction or condition which would
limit the full operation of the Stations as presently operated. The Licenses
listed on Schedule 3.4 are in full force and effect. The business and operations
of the Stations are being conducted in accordance with the Licenses listed on
Schedule 3.4. Seller has no reason to believe that the Licenses issued by the
FCC will not be renewed by the FCC in the ordinary course.
3.5 Title to and Condition of Leasehold Interests. Schedule 3.5
contains a complete and accurate description of all leasehold interests
necessary to conduct the business and operations of the Stations as now
conducted. With respect to each leasehold or subleasehold interest included in
the Leasehold Interests being conveyed under this Agreement, so long as Seller
fulfills its obligations under the lease therefor, except for landlord's
mortgagee, if any, Seller has enforceable rights to nondisturbance and quiet
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enjoyment, and no third party holds any interest in the leased premises with the
right to foreclose upon such Seller's leasehold or subleasehold interest. Seller
has full legal and practical access to the Leasehold Interests.
3.6 Title to and Condition of Tangible Personal Property. Schedule 3.6
contains descriptions of all material items of the Personal Property which
comprise all material personal property necessary to conduct the business or
operations of the Stations as now conducted. Except as described in Schedule
3.6, Seller owns and has good title to all Personal Property, free and clear of
any security interest, mortgage, pledge, conditional sales agreement, or other
lien or encumbrance, except for Permitted Liens. Each item of material Personal
Property is in good operating condition and repair (ordinary wear and tear
excepted), and is available for immediate use in the business or operations of
the Stations.
3.7 Contracts. Schedule 3.7 contains descriptions of all the
Contracts. Seller has delivered to Buyer true and complete copies of all written
Contracts and true and complete memoranda of all oral Contracts. Other than the
Contracts, Seller requires no contract or agreement to enable it to carry on its
business as presently conducted. All of the Assumed Contracts are in full force
and effect and are valid, binding and enforceable in accordance with their terms
except as the enforceability thereof may be affected by bankruptcy, insolvency,
or similar laws affecting creditors' rights generally, or by court-applied
equitable remedies. Seller is not in breach, nor to Seller's knowledge is any
other party in breach, of the terms of any such Assumed Contracts. Except as
expressly set forth in Schedule 3.7, Seller is not aware of any intention by any
party to any Assumed Contract (i) to terminate such contract or amend the terms
thereof, (ii) to refuse to renew the same upon expiration of its term, or (iii)
to renew the same upon expiration only on terms and conditions which are
substantially more onerous than those pertaining to such existing contract.
Subject to obtaining the Consents, Seller has full legal power and authority to
assign its rights under the Assumed Contracts to Buyer in accordance with this
Agreement, and such assignment will not affect the validity, enforceability and
continuation of any of the Assumed Contracts.
3.8 Insurance. Schedule 3.8 comprises a true and complete list of all
insurance policies of Seller which insure any part of the Assets. All policies
of insurance listed in Schedule 3.8 are in full force and effect. During the
three-year period ending on the date hereof, no insurance policy of Seller on
the Assets or the Stations have been canceled by the insurer and no application
of Seller for insurance has been rejected by any insurer.
3.9 Reports. All returns, reports and statements which the Stations
are currently required to file with the FCC and any other governmental agency
have been filed. All of such reports, returns and statements are complete and
correct as filed.
3.10 Taxes. Seller has filed or caused to be filed all federal income
tax returns and all other federal, state, county, local or city tax returns
which are required to be filed, and
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they have paid or caused to be paid all taxes shown on said returns or on any
tax assessment received by them to the extent that such taxes have become due,
or has set aside on its books reserves (segregated to the extent required by
sound accounting practice) deemed by them to be adequate with respect thereto.
No events have occurred which could impose on Buyer any transferee liability for
any taxes, penalties, or interest due or to become due from Seller.
3.11 Claims and Legal Actions. There is no claim, legal action,
counterclaim, suit, arbitration, governmental investigation or other legal,
administrative or tax proceeding, nor any order, decree or judgment, in progress
or pending, or to the knowledge of Seller threatened, against or relating to
Seller, the Assets, or the business or operations of the Stations, nor does
Seller know of any basis for the same.
3.12 Environmental; Hazardous Materials. There are no claims, notices,
suits, proceedings or investigations pending or, to Seller's knowledge,
threatened, and there are no judgments against Seller or the Stations by or
before any governmental authority concerning environmental compliance. To
Seller's knowledge, after due inquiry, (i) no toxic materials, hazardous waste,
or hazardous substances, including any asbestos or asbestos-related products,
any oils, petroleum-derived compounds or pesticides (hereinafter collectively
referred to as the "Hazardous Materials") have been or are located on or about
the Leasehold Interests; (ii) the Leasehold Interests has not been previously
used for the storage, manufacture or disposal of Hazardous Materials; and (iii)
no underground storage tank or related equipment ("UST") is located at the
Leasehold Interests.
3.13 Compliance with Laws. Seller has complied in all material respects
with the Licenses and all federal, state, and local laws, rules, regulations,
and ordinances applicable or relating to the ownership and operation of the
Stations. Neither the ownership or use of the properties of the Stations nor the
conduct of the business or operations of the Stations conflicts with the rights
of any other person or entity.
3.14 Full Disclosure. No representation or warranty made by Seller in
this Agreement or any certificate to be furnished by Seller at Closing contains
or will contain any untrue statement of a material fact, or omits or will omit
to state any material fact required to make any statement made herein or therein
not misleading in any such case that was knowingly or willfully made or omitted,
as the case may be, by Seller.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization, Standing and Authority. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of Florida.
Buyer has all requisite corporate power and authority to execute and deliver
this Agreement and the documents
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contemplated hereby, and to perform and comply with all of the terms, covenants,
and conditions to be performed and complied with by Buyer hereunder and
thereunder.
4.2 Authorization and Binding Obligation. The execution, delivery, and
performance of this Agreement by Buyer have been duly authorized by all
necessary actions on the part of Buyer. This Agreement has been duly executed
and delivered by Buyer and constitutes the legal, valid, and binding obligation
of Buyer, enforceable against Buyer in accordance with its terms except as the
enforceability of this Agreement may be affected by bankruptcy, insolvency, or
similar laws affecting creditors' rights generally and by judicial discretion in
the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements. Subject to obtaining the FCC
Consent, the execution, delivery, and performance by Buyer of this Agreement and
the documents contemplated hereby (with or without the giving of notice, the
lapse of time, or both): (i) will not conflict with the Certificate of
Incorporation or Bylaws of Buyer; (ii) 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
applicable to Buyer; (iii) will not conflict with, constitute grounds for
termination of, result in a breach of, constitute a default under, or accelerate
or permit the acceleration of any performance required by the terms of, any
agreement, instrument, license, or permit to which Buyer is a party or by which
Buyer may be bound, such that Buyer could not acquire the Assets or operate the
Stations.
4.4 Full Disclosure. No representation or warranty made by Buyer in
this Agreement or in any certificate, document, or other instrument furnished or
to be furnished by Buyer pursuant hereto contains or will knowingly contain any
untrue statement of a material fact, or omits or will omit to state any material
fact required to make any statement made herein or therein not misleading.
4.5 Buyer Qualifications. Buyer is legally, financially and otherwise
qualified to be the licensee of and acquire, own and operate the Stations and
hold the Construction Permit under the Communications Act of 1934, as amended,
and the rules, regulations and policies of the FCC. Buyer knows of no fact that
would, under existing law and the existing rules, regulations, policies and
procedures of the FCC disqualify Buyer as assignee of the FCC Licenses or as the
owner and operator of the Stations.
SECTION 5. OPERATIONS OF THE STATIONS PRIOR TO CLOSING
5.1 Generally. Seller agrees that, between the date of this Agreement
and the Closing Date, Seller shall conduct its business in accordance with its
past practices (except where such conduct would conflict with the following
covenants or with Seller's other
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obligations under this Agreement), and in accordance with the other covenants in
this Section 5.
5.2 Contracts. Seller will not enter into any contract or commitment
relating to the Stations or the Assets, or amend or terminate any Contract (or
waive any material right thereunder), or incur any obligation (including
obligations relating to the borrowing of money or the guaranteeing of
indebtedness) that will be binding on Buyer after Closing without Buyer's
written consent.
5.3 Disposition of Assets. Seller shall not sell, assign, lease, or
otherwise transfer or dispose of any of the Assets, except in connection with
the acquisition of replacement property of equivalent kind and value.
5.4 Encumbrances. Seller shall not create, assume or permit to exist any
claim, liability, mortgage, lien, pledge, condition, charge, or encumbrance of
any nature whatsoever upon the Assets, except for (i) liens which shall be
removed prior to the Closing Date and, (ii) liens for current taxes not yet due
and payable.
5.5 Licenses. Seller shall not cause or permit, by any act or failure to
act, any of the Licenses issued by the FCC to expire or to be revoked,
suspended, or modified, or take any action that could cause the FCC or any other
governmental authority to institute proceedings for the suspension, revocation,
or adverse modification of any of the Licenses. Seller shall not fail to
prosecute with due diligence any applications to any governmental authority in
connection with the operation of the Stations and shall file any required
applications to extend and maintain the construction permit in full force and
effect.
5.6 Rights. Seller shall not knowingly waive any material right relating
to the Stations or any of the Assets.
5.7 Access to Information. Seller shall give Buyer and its counsel,
accountants, engineers, and other authorized representatives reasonable access
during normal business hours to the Assets and to all other properties,
equipment, books, records, Contracts, and documents relating to the Stations for
the purpose of audit and inspection and will furnish or cause to be furnished to
Buyer or its authorized representatives all material information with respect to
the affairs and business of the Stations that Buyer may reasonably request
(including any operations reports produced with respect to the affairs and
business of the Stations).
5.8 Maintenance of Assets. Seller shall maintain all of the Assets in
good condition (ordinary wear and tear excepted) with inventories of spare parts
and expendable supplies being maintained at levels consistent with past
practices.
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5.9 Insurance. Seller shall maintain substantially the same insurance
coverage provided by the existing insurance policies on the Stations and the
Assets until the Closing Date.
5.10 Consents. Subject to the provisions of Section 6.5 hereof, Seller
shall use its best efforts to obtain the Consents (other than Consents relating
to Contracts that are not Assumed Contracts) without any change in the terms or
conditions of any Assumed Contract or License as in effect on the date of this
Agreement. Seller shall advise Buyer of any communications it receives
concerning the Consents and of any conditions proposed, considered, or requested
for any of the Consents. Upon Buyer's request, Seller shall cooperate with Buyer
and use its best efforts to obtain from the Lessors under the Leasehold
Interests such estoppel certificates and consents to the collateral assignment
of the lessee's interest under each such lease as Buyer's lenders may request.
5.11 Books and Records. Seller shall maintain its books and records
relating to the Stations in accordance with past practices.
5.12 Notification. Seller shall promptly notify Buyer in writing of any
material change in any of the information contained in Seller's representations
and warranties contained in Section 3 of this Agreement.
5.13 Compliance with Laws. Seller shall comply in all material respects
with all laws, rules, and regulations applicable or relating to the ownership
and operation of the Stations.
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC Consent.
(a) The assignment of the FCC Licenses in connection with the
purchase and sale of the Assets pursuant to this Agreement shall be subject to
the prior consent and approval of the FCC.
(b) Seller and Buyer shall promptly prepare the appropriate
applications for the FCC Consent and shall file the necessary applications with
the FCC on or before May 19, 1997. The parties shall prosecute the applications
with all reasonable diligence and otherwise use their reasonable commercial
efforts to obtain a grant of the applications as expeditiously as practicable.
Each party agrees to comply with any condition imposed on it by the FCC Consent,
except that no party shall be required to comply with a condition if (1) the
condition was imposed on it as the result of a circumstance the existence of
which does not constitute a breach by such party of any of its representations,
warranties, or covenants under this Agreement, and (2) compliance with the
condition would have a material adverse
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effect upon it. Buyer and Seller shall oppose any requests for reconsideration
or judicial review of the FCC Consent, provided, however, that the parties shall
continue to have all rights available to them pursuant to Section 9 hereof. If
the Closing shall not have occurred for any reason within the original effective
period of the FCC Consent, and neither party shall have terminated this
Agreement under Section 9, the parties shall jointly request an extension of the
effective period of the FCC Consent. No extension of the FCC Consent shall limit
the exercise by either party of its rights under Section 9.
6.2 Control of the Stations. Prior to Closing, Buyer shall not,
directly or indirectly, control, supervise, direct, or attempt to control,
supervise, or direct, the operations of the Stations; such operations, including
complete control and supervision of all of the Stations' programs, employees,
and policies, shall be the sole responsibility of Seller until the Closing.
6.3 Risk of Loss. The risk of any loss, damage, impairment,
confiscation, or condemnation of any of the Assets from any cause whatsoever
shall be borne by Seller at all times prior to the Closing, except to the extent
of loss or damage resulting from actions or negligence of Buyer or its agents,
representatives or independent contractors.
6.4 Confidentiality. Except as necessary for the consummation of the
transaction contemplated by this Agreement, including Buyer's obtaining of
financing related hereto, and except as and to the extent required by law,
including, without limitation, disclosure requirements of federal or state
securities laws and rules and regulations of securities markets, each party will
keep confidential any information of a confidential nature obtained from the
other party in connection with the transactions contemplated by this Agreement.
Except as provided in this Paragraph each party will refrain from disclosing any
such information to any third party. If this Agreement is terminated, each party
will return to the other party all copies of all documents and other all
information obtained by the such party from the other party in connection with
the transactions contemplated by this Agreement.
6.5 Cooperation. Buyer and Seller shall cooperate fully with each other
and their respective counsel and accountants in connection with any actions
required to be taken as part of their respective obligations under this
Agreement, and Buyer and Seller shall execute such other documents as may be
necessary and desirable to the implementation and consummation of this
Agreement, and otherwise use their reasonable commercial efforts to consummate
the transaction contemplated hereby and to fulfill their obligations under this
Agreement. Notwithstanding the foregoing, neither Buyer nor Seller shall have
any obligation (i) to expend funds to obtain any of the Consents or (ii) to
agree to any material adverse change in any License or Assumed Contract to
obtain a Consent required with respect thereto; provided, however, that Seller
shall be required to expend funds, if necessary, to cure any defaults in order
to obtain Consents and either party shall be required to expend funds in respect
of normal and usual filing fees and the fees of professional advisors.
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6.6 Access to Books and Records. Seller shall provide Buyer access and
the right to copy for a period of ninety (90) days from the Closing Date any
books and records relating to the Assets but not included in the Assets. Buyer
shall provide Seller access and the right to copy for a period of ninety (90)
days from the Closing Date any books and records relating to the Assets that are
included in the Assets.
6.7 Broker. Each of Buyer and Seller represents and warrants that
neither they nor any person or entity acting on their behalf have incurred any
liability for any finders' or brokers' fees or commissions in connection with
the transactions contemplated by this Agreement.
6.8 Parent Guaranty. Xxxxxx Communications Corporation, a Delaware
corporation, of which Buyer is an indirect, wholly-owned subsidiary, hereby
fully and unconditionally guarantees all obligations of Buyer hereunder.
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER
AT CLOSING
7.1 Conditions to Obligations of Buyer. All obligations of Buyer at the
Closing are subject at Buyer's option to the fulfillment or waiver by Buyer
prior to or at the Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations and
warranties of Seller contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time.
(b) Covenants and Conditions. Seller shall have performed and
complied in all material respects with all covenants, agreements, and conditions
required by this Agreement to be performed or complied with by them prior to or
on the Closing Date.
(c) Consents. All Consents relating to Assumed Contracts shall have
been obtained and delivered to Buyer without any material adverse change in the
terms or conditions of any agreement or any governmental license, permit, or
other authorization.
(d) FCC Consent. The FCC Consent shall have been granted without
the imposition on Buyer of any material conditions that need not be complied
with by Buyer under Section 6.1 hereof, Seller shall have complied with any
conditions imposed on them by the FCC Consent, and the FCC Consent shall have
become a Final Order.
(e) Governmental Authorizations. Seller shall be the holder of all
FCC Licenses and there shall not have been any modification of any FCC License
that could have a material adverse effect on the Stations or the conduct of its
business and operations or the
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ability to construct the Channel 51 television station in Batavia, New York. No
proceeding shall be pending the effect of which would be reasonably likely to
revoke, cancel, fail to renew, suspend, or modify adversely any FCC License.
(f) Material Adverse Change. There shall not have been a material
adverse change in the Assets since the date of this Agreement, including,
without limitation, any damage, destruction or loss affecting any material
assets used in the conduct or the business of the Stations, except normal wear
and tear to the Assets.
(g) Deliveries. Seller shall have made or stand willing to make all
the deliveries to Buyer set forth in Section 8.2.
(h) Release of Liens. Seller shall have delivered to Buyer evidence
reasonably satisfactory to Buyer that all security interests, mortgages,
encumbrances, and liens on the Assets that are not Permitted Liens have been
released and removed.
(i) Concurrent Closing. The transactions contemplated by the
KTVC-TV Purchase Agreement shall have been consummated in accordance with the
terms thereof contemporaneously with the Closing.
7.2 Conditions to Obligations of Seller All obligations of Seller at
the Closing are subject at Seller's option to the fulfillment prior to or at the
Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations and
warranties of Buyer contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time.
(b) Covenants and Conditions. Buyer shall have performed and
complied in all material respects with all covenants, agreements, and conditions
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date.
(c) Deliveries. Buyer shall have made or stand willing to make all
the deliveries set forth in Section 8.3.
(d) FCC Consent. The FCC Consent shall have been granted without
the imposition on Seller of any material conditions that need not be complied
with by Seller under Section 6.1 hereof and Buyer shall have complied with any
conditions imposed on it by the FCC Consent.
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(e) Concurrent Closing. The transactions contemplated by the
KTVC-TV Purchase Agreement shall have been consummated in accordance with the
terms thereof contemporaneously with the Closing.
SECTION 8. CLOSING AND CLOSING DELIVERIES
8.1 Closing.
(a) Closing Date. The Closing shall take place simultaneously with
the consummation of the transactions contemplated by the KTVC-TV Purchase
Agreement, subject to the satisfaction or waiver of all of the other conditions
precedent to holding the Closing.
(b) Closing Place. The Closing shall be held at the offices of Dow,
Xxxxxx & Xxxxxxxxx, 0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx X.X.
00000.
8.2 Deliveries by Seller. Prior to or on the Closing Date, Seller shall
deliver to Buyer the following, in form and substance reasonably satisfactory to
Buyer and its counsel:
(a) Transfer Documents. Subject to the provisions of this
Agreement, duly executed bills of sale, general warranty deeds, assignments, and
other transfer documents which shall be sufficient to vest good and marketable
title to the Assets in the name of Buyer, free and clear of all mortgages,
liens, restrictions, encumbrances, claims, and obligations except for Permitted
Liens;
(b) Consents. An executed copy of any instrument evidencing receipt
of any Consent;
(c) Certificates. A certificate, dated as of the Closing Date,
executed by Seller certifying (1) that the representations and warranties of
such Seller contained in this Agreement are true and complete in all material
respects as of the Closing Date as though made on and as of that date; and (2)
that such Seller has in all material respects performed and complied with all of
its obligations, covenants, and agreements set forth in this Agreement to be
performed and complied with on or prior to the Closing Date and such estoppel
certificates and consents to the collateral assignment of the lessee's interest
under each such lease as Buyer's lenders may request;
(d) Licenses, Contracts, Business Records, Etc. Copies of all
documents described in Section 2.1(g) hereof;
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(e) Opinion of Counsel. An opinion of Seller's counsel dated as of
the Closing Date, substantially in the form of Schedule 8.2(e) hereto;
(f) Resolutions. Certified copy of resolutions of the Board of
Directors of Seller authorizing the execution, delivery and performance of this
Agreement;
(g) Noncompetition Agreement. An executed copy of the
Noncompetition Agreement in the form of Schedule 8.2(g) hereof;
(h) Lease Agreement. A tower site lease for the Channel 51
television station licensed to Batavia, New York having terms substantially
consistent with the Option to Lease referred to in Schedule 3.5, together with
all permits necessary for the construction of that station; and
(i) Other Instruments. Such other instruments and certificates or
other documentation as Seller are required by the terms hereof to deliver or as
Buyer may reasonably request.
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer shall
deliver to Seller the following, in form and substance reasonably satisfactory
to Seller and its counsel;
(a) Purchase Price. The Purchase Price as provided in Section 2.3;
(b) Assumption Agreements. Appropriate assumption agreements
pursuant to which Buyer shall assume and undertake to perform Seller's
obligations under the Licenses and Assumed Contracts arising on or after the
Closing Date;
(c) Certificate. A certificate, dated as of the Closing Date,
executed by Buyer certifying (1) that the representations and warranties of
Buyer contained in this Agreement are true and complete in all material respects
as of the Closing Date as though made on and as of that date, and (2) that Buyer
has in all material respects performed and complied with all of its obligations,
covenants, and agreements set forth in this Agreement to be performed and
complied with on or prior to the Closing Date;
(d) Opinion of Counsel. An opinion of Buyer's counsel dated as of
the Closing Date, substantially in the form of Schedule 8.3(d) hereto;
(e) Resolutions. Certified copy of resolutions of Buyer's Board of
Directors authorizing the execution, delivery and performance of this Agreement;
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(f) Noncompetition Agreement. An executed copy of the
Noncompetition Agreement, in the form of Schedule 8.2(g), for which Forty
Thousand Dollars ($40,000) of the Purchase Price is allocated; and
(g) Other Instruments. Such other instruments and certificates or
other documentation as Buyer is required by the terms hereof to deliver or as
Seller may reasonably request.
SECTION 9. TERMINATION
9.1 Termination by Seller. This Agreement may be terminated by
Seller and the purchase and sale of the Assets abandoned, if Seller is not then
in material default, upon written notice to Buyer, upon the occurrence of any of
the following:
(a) Conditions. If, on the date that would otherwise be the Closing
Date, any of the conditions precedent to the obligations of Seller set forth in
this Agreement have not been satisfied or waived in writing by Seller.
(b) Judgments. If there shall be in effect on the date that would
otherwise be the Closing Date any judgment, decree, or order, not caused by
Seller, that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred by June 1,
1998.
9.2 Termination by Buyer. This Agreement may be terminated by Buyer and
the purchase and sale of the Stations abandoned, if Buyer is not then in
material default, upon written notice to Seller, upon the occurrence of any of
the following:
(a) Conditions. If on the date that would otherwise be the Closing
Date any of the conditions precedent to the obligations of Buyer set forth in
this Agreement have not been satisfied or waived in writing by Buyer.
(b) Judgments. If there shall be in effect on the date that would
otherwise be the Closing Date any judgment, decree, or order, not caused by
Buyer, that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred by June 1,
1998.
9.3 Rights on Termination.
(a) If this Agreement is terminated pursuant to Section 9.1 or 9.2
and neither party is in material breach of any provision of this Agreement, the
parties hereto shall not have any further liability to each other with respect
to the purchase and sale of the Assets. If this Agreement is terminated by Buyer
due to Seller's
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material breach of any provision of this Agreement, and Buyer is not in material
breach of any provision of this Agreement, Buyer shall have all rights and
remedies available at law or equity, including the right to seek specific
performance of this Agreement. Seller agrees that the Assets include unique
property that cannot be readily obtained on the open market and that Buyer would
be irreparably injured if this Agreement is not specifically enforced after
breach if Seller shall have committed a material breach. Therefore, Buyer shall
have the right to specifically enforce Seller's performance under this Agreement
and Seller agrees to waive the defense in any such suit that Buyer has an
adequate remedy at law and to interpose no opposition, legal or otherwise, as to
the propriety of specific performance as a remedy.
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES
10.1 Representations and Warranties. All representations and warranties
contained in this Agreement shall be deemed continuing representations and
warranties and shall survive the closing for a period of eighteen (18) months.
10.2 Indemnification by Seller. Seller hereby agrees to indemnify and
hold Buyer harmless against and with respect to, and shall reimburse Buyer for:
(a) Any and all losses, liabilities, or damages resulting from any
untrue representation, breach of warranty, or omission or nonfulfillment of any
covenant by Seller contained in this Agreement or in any certificate, document,
or instrument delivered to Buyer under this Agreement.
(b) Any and all obligations of Seller not assumed by Buyer pursuant
to this Agreement.
(c) Any and all losses, liabilities, or damages resulting from the
operation or ownership of the Stations and/or the Assets prior to the Closing
Date, including any liabilities arising under the Licenses or the Assumed
Contracts which relate to events occurring prior to the Closing Date.
(d) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
10.3 Indemnification by Buyer. Buyer hereby agrees to indemnify and
hold Seller harmless against and with respect to, and shall reimburse Seller
for:
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(a) Any and all losses, liabilities, or damages resulting from any
untrue representation, breach of warranty, or omission or nonfulfillment of any
covenant by Buyer contained in this Agreement or in any certificate, Schedule,
document, or instrument delivered to Seller under this Agreement.
(b) Any and all obligations of Seller assumed by Buyer pursuant to
this Agreement.
(c) Any and all losses, liabilities, or damages resulting from the
operation or ownership of the Stations and/or the Assets by Buyer on and after
the Closing.
(d) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
10.4 Procedure for Indemnification. The procedure for
indemnification shall be as follows:
(a) The party claiming indemnification (the "Claimant") shall
promptly give notice to the party from which indemnification is claimed (the
"Indemnifying Party") of any claim, whether between the parties or brought by a
third party, specifying in reasonable detail the factual basis for the claim. If
the claim relates to an action, suit, or proceeding filed by a third party
against Claimant, such notice shall be given by Claimant as soon as practicable
after written notice of such action, suit, or proceeding was given to Claimant.
(b) With respect to claims solely between the parties, following
receipt of notice from the Claimant of a claim, the Indemnifying Party shall
have thirty days to make such investigation of the claim as the Indemnifying
Party deems necessary or desirable. For the purposes of such investigation, the
Claimant agrees to make available to the Indemnifying Party and/or its
authorized representatives the information relied upon by the Claimant to
substantiate the claim. If the Claimant and the Indemnifying Party agree at or
prior to the expiration of the thirty-day period (or any mutually agreed upon
extension thereof) to the validity and amount of such claim, the Indemnifying
Party shall immediately pay to the Claimant the full amount of the claim. If the
Claimant and the Indemnifying Party do not agree within the thirty-day period
(or any mutually agreed upon extension thereof), the Claimant may seek
appropriate remedy at law or equity or under the arbitration provisions of this
Agreement, as applicable.
(c) With respect to any claim by a third party as to which the
Claimant is entitled to indemnification under this Agreement, the Indemnifying
Party shall have the right at its own expense, to participate in or assume
control of the defense of such claim, and the
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Claimant shall cooperate fully with the Indemnifying Party subject to
reimbursement for reasonable actual out-of-pocket expenses incurred by the
Claimant as the result of a request by the Indemnifying Party. If the
Indemnifying Party elects to assume control of the defense of any third-party
claim, the Claimant shall have the right to participate in the defense of such
claim at its own expense. If the Indemnifying Party does not elect to assume
control or otherwise participate int he 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
forth in this Section 10.4, any indemnification claims by such parties shall be
made by and through the Claimant.
10.5 Limitation. Neither Buyer nor Seller shall be required to indemnify
the other party under this Section 10, except to the extent that the aggregate
amount of all claims against the party exceeds Fifty Thousand Dollars ($50,000).
SECTION 11. MISCELLANEOUS
11.1 Attorneys' Fees. In the event of a default by either party which
results in a lawsuit or other proceeding for any remedy available under this
Agreement, the prevailing party shall be entitled to reimbursement from the
other party of its reasonable legal fees and expenses.
11.2 Fees and Expenses. Any federal, state, or local sales or transfer tax
arising in connection with the conveyance of the Assets by Seller to Buyer
pursuant to this Agreement shall be paid by Seller. Buyer shall pay the fee
payable to the FCC in connection with the filing of the application for FCC
Consent. Except as otherwise provided in this Agreement, each party shall pay
its own expenses incurred in connection with the authorization, preparation,
execution, and performance of this Agreement, including all fees and expenses of
counsel, accountants, agents, and representatives, and each party shall be
responsible for all fees or commissions payable to any finder, broker, advisor,
or similar person retained by or on behalf of such party.
11.3 Arbitration. Except as otherwise provided to the contrary below, any
dispute arising out of or related to this Agreement that Seller and Buyer are
unable to resolve by themselves shall be settled by arbitration in Washington,
D.C. by a panel of three (3) arbitrators. Seller and Buyer shall each designate
one (1) disinterested arbitrator, and the
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29
two (2) arbitrators so designated shall select the third arbitrator. Before
undertaking to resolve the dispute, each arbitrator shall be duly sworn
faithfully and fairly to hear and examine the matters in controversy and to make
a just award according to the best of his or her understanding. The arbitration
hearing shall be conducted in accordance with the commercial arbitration rules
of the American Arbitration Association. The written decision of a majority of
the arbitrators shall be final and binding on Seller and Buyer. The costs and
expenses of the arbitration proceeding shall be assessed between Seller and
Buyer in a manner to be decided by a majority of the arbitrators, and the
assessment shall be set forth in the decision and award of the arbitrators.
Judgment on the award, if it is not paid within thirty (30) days, may be entered
in any court having jurisdiction over the matter. No action at law or suit in
equity based upon any claim arising out of or related to this Agreement shall be
instituted in any court by Seller or Buyer against the other except (i) an
action to compel arbitration pursuant to this Section, (ii) an action to enforce
the award of the arbitration panel rendered in accordance with this Section, or
(iii) a suit for specific performance under Section 9.4(b) of this Agreement.
11.4 Notices. All notices, demands, and requests required or permitted to
be given under the provisions of this Agreement shall be (a) in writing, (b)
sent by telecopy (with receipt personally confirmed by telephone), 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 of Buffalo-51, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
With copy to: Xxxx X. Xxxxx, Xx., Esq.
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
- 23 -
30
If to Seller: Xxxx Broadcasting of New York, L.L.C.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
With copy to: Xxxxxxx X. Xxxx, Esq.
Xxxxx & Xxxx, LLP
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
or to any other or additional persons and addresses as the parties may from time
to time designate in a writing delivered in accordance with this Section 11.4.
11.5 Benefit and Binding Effect. Neither party hereto may assign this
Agreement without the prior written consent of the other party hereto; provided,
however, that Buyer may assign its rights and obligations under this Agreement
to a wholly-owned subsidiary or commonly controlled affiliate satisfying the
requirements of Section 4.5 hereof without seeking or obtaining Seller's prior
approval. Upon any permitted assignment by Buyer or Seller in accordance with
this Section 11.5, all references to "Buyer" herein shall be deemed to be
references to Buyer's assignee and all references to "Seller" herein shall be
deemed to be references to Seller's assignee. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
11.6 Further Assurances. The parties shall take any actions and execute any
other documents that may be necessary or desirable to the implementation and
consummation of this Agreement, including, in the case of Seller, any additional
bills of sale, deeds, or other transfer documents that, in the reasonable
opinion of Buyer, may be necessary to ensure, complete, and evidence the full
and effective transfer of the Assets to Buyer pursuant to this Agreement.
11.7 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).
- 24 -
31
11.8 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.
11.9 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.
11.10 Entire Agreement. This Agreement, the schedules, hereto, and all
documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between Buyer and Seller with respect to the subject matter hereof. This
Agreement supersedes all prior negotiations between the parties and cannot be
amended, supplemented, or changed except by an agreement in writing that makes
specific reference to this Agreement and which is signed by the party against
which enforcement of any such amendment, supplement, or modification is sought.
11.11 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 11.11.
11.12 Counterparts. This Agreement may be signed in counterparts with the
same effect as if the signature on each counterpart were upon the same
instrument.
11.13 Press Releases. Neither party shall publish any press release, make
any other public announcement or otherwise communicate with any news media
concerning this Agreement or the transactions contemplated hereby without the
prior written consent of the other party; provided, however, that nothing
contained herein shall prevent either party from promptly making all filings
and, if required, press releases with governmental authorities as may, in its
judgment, be required or advisable in connection with the execution and delivery
of this Agreement or the consummation of the transactions contemplated hereby,
in which case the other party shall be first notified in writing.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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32
IN WITNESS WHEREOF, the parties hereto have duly executed this Amended
and Restated Asset Purchase Agreement as of the day and year first above
written.
XXXXXX COMMUNICATIONS OF
BUFFALO-51, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman
XXXX BROADCASTING COMPANY OF NEW
YORK, L.L.C.
By: /s/ Xxxxxxx Xxxx
------------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Members
/s/ Xxxxxxx Xxxx
----------------------------------------
XXXXXXX XXXX, an Individual
XXXXXX COMMUNICATIONS CORPORATION JOINS
IN THE EXECUTION OF THE FOREGOING ASSET
PURCHASE AGREEMENT SOLELY FOR THE
PURPOSE OF SECTION 6.8 THEREOF.
XXXXXX COMMUNICATIONS
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman
- 26 -
33
EX-10.170
Schedule 3.3 to the
Asset Purchase Agreement
by and between
Xxxxxx Communications of Buffalo-51, Inc.
and Xxxx Broadcasting of New York, L.L.C.
List of Consents Required
NONE, except for the necessary approvals and consents required pursuant to the
various rules, regulations and requirements of the Federal Communications
Commission.
34
Schedule 3.4 to the
Asset Purchase Agreement
by and between
Xxxxxx Communications of Buffalo-51, Inc.
and Xxxx Broadcasting of New York, L.L.C.
List of Licenses
1. Television Broadcast Station Construction Permit
Grant Date: 5-10-96
Permit File No. XXXX-000000XX
2. LPTV Station License for W69CS (Buffalo, NY)
File No. BALTTL-951101IA
3. LPTV Station License for W63BM (Rochester, NY)
File No. BALTTL-951101IB
35
Schedule 3.5 to the
Asset Purchase Agreement
by and between
Xxxxxx Communications of Buffalo-51, Inc.
and Xxxx Broadcasting of New York, L.L.C.
Leasehold Interests
NONE
36
Schedule 3.6 to the
Asset Purchase Agreement
by and between
Xxxxxx Communications of Buffalo-51, Inc.
and Xxxx Broadcasting of New York, L.L.C.
List of Personal Property
1. Transmitter, antenna and miscellaneous equipment for LPTV W63BM, located
at tower site on Pinnacle Hill at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX
2. Antenna, lines and transmitter for LPTV W69CS, located at the Midland Bank
Building in Buffalo, New York
37
Schedule 3.7 to the
Asset Purchase Agreement
by and between
Xxxxxx Communications of Buffalo-51, Inc.
and Xxxx Broadcasting of New York, L.L.C.
List of Contracts
1. April 7, 1997, Option to Lease (Tower Site) from Xxxxxx Xxxxx to Xxxx
Broadcasting of New York, L.L.C.
38
Schedule 3.8 to the
Asset Purchase Agreement
by and between
Xxxxxx Communications of Buffalo-51, Inc.
and Xxxx Broadcasting of New York, L.L.C.
List of Insurance Policies
Personal Property described in Schedule 3.6 covered under a policy of insurance
issued by Vesta Insurance. Coverage is a Special Form including theft, $1,000
deductible.
39
SCHEDULE 8.2(e)
SELLER'S OPINION
1. Seller is a limited liability company duly organized and in good
standing under the laws of the State of Alabama.
2. Seller has full corporate power and authority to execute, deliver
and perform the Asset Purchase Agreement and the other Transaction Documents
[Transaction Documents shall mean the documents executed and delivered by
Seller at Closing] to which it is a party. Seller's execution, delivery and
performance of the Purchase Agreement and the other Transaction Documents to
which it is a party have been duly and validly authorized by all necessary
corporate action on the part of Seller.
3. The Purchase Agreement and each of the other Transaction Documents
to which Seller is a party have been duly executed and delivered by Seller and
constitute the valid and binding obligation of Seller, enforceable against
Seller in accordance with their respective terms subject to (i) bankruptcy,
insolvency, reorganization, moratorium and other similar laws and related court
decisions now or hereinafter in effect relating to creditors' rights and (ii)
the application of general equitable principles.
4. The execution, delivery and performance by Seller of the Purchase
Agreement and the other Transaction Documents to which Seller is a party (a) do
not require the consent of any third party under any of the Seller Agreements
[Seller Agreements shall mean such agreements that are certified by Seller to
Seller's counsel to be material to the operation of the business of Seller or
the transactions contemplated by the Purchase Agreement, except that Seller
Agreements shall not include any Contracts listed on Schedule 3.7 that are not
designated as Assumed Contracts], other than consents set forth on Schedule 3.3
of the Purchase Agreement: (b) do not violate Applicable Law [Applicable Law
means those laws and regulations that a lawyer exercising customary
professional diligence would recognize as being applicable to the transactions
contemplated by the Transaction Documents, although no opinion is hereby
expressed as to laws other than the laws of the State of Alabama] or any
judgment, order, injunction, decree, which is applicable to Seller and known to
us; (c) do not, either alone or with the giving of notice or the passage of
time or both, conflict with, constitute grounds for termination of, or result
in a breach of the terms, conditions or provisions of, or constitute a default
under any of the Seller Agreements; and (d) do not result in the creation of
any lien, charge or encumbrance on any of the Assets pursuant to the terms of
any of the Seller Agreements.
40
-2-
5. All bills of sale, assignments, and other conveyancing documents
delivered by Seller to Buyer on the date hereof are in proper form to convey
and assign all of Seller's right, title, and interest in and to the Tangible
Personal Property to Buyer.
6. The Licenses listed on Exhibit A hereto (the "FCC Licenses") were
validly issued to Seller, are in full force and effect and are not subject to
any condition other than such conditions that are set forth in the FCC Licenses.
7. The FCC has granted its consent to the assignment of the FCC
Licenses from Seller to Buyer (the "FCC Consent"). To the best of our
knowledge based solely on a review of the FCC's files and records and the
Officer's Certificate, the FCC Consent has not been reversed, stayed, enjoined,
set aside, annulled or suspended, no requests have been filed for
administrative or judicial review, reconsideration, appeal or stay of the FCC
Consent, and the time periods for filing any such requests and for the FCC to
set aside the FCC Consent on its own motion have expired.
Opinions 1-5 to be provided by Seller's General Counsel. Opinions 6-7
to be provided by Xxxxxxxx, Xxxxx and Xxxxxxxx, PLC, Seller's FCC counsel.
41
SCHEDULE 8.2(g)
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT is dated as of ______ ___, 1997, by and
among XXXXXX COMMUNICATIONS OF BUFFALO-51, INC., a Florida corporation
("Buyer"), XXXX BROADCASTING OF NEW YORK, L.L.C., an Alabama limited liability
company ("Seller"), and XXXXXXX X. XXXX, an individual ("Xxxx").
RECITALS:
A. Seller, Buyer and Xxxx have entered into an Asset Purchase
Agreement dated as of April __,1997 (the "Purchase Agreement"), pursuant to
which Buyer agreed to purchase from Seller and Xxxx (a) substantially all of
the assets (the "Assets") that are owned by Seller or Xxxx or in which Seller
or Xxxx have a transferrable interest and which are used or useful in the
business or operations of low power television stations W69CS, Channel 69,
Buffalo, New York, and W63BM, Rochester, New York, and (b) the construction
permit (the "Permit") for WAQF-TV, Batavia, New York (W69CS, W63BM and WAQF-TV
are collectively, the "Stations").
X. Xxxx is President of Seller and is actively involved in television
station ownership and possesses special knowledge, abilities and experience
regarding the business and operation of the Stations.
C. The agreement of Seller and Xxxx to deliver this Noncompetition
Agreement was a material inducement to Buyer in entering into the Purchase
Agreement, and the delivery of this Noncompetition Agreement by Seller and Xxxx
was a condition to Buyer's obligation to purchase the Assets and Permit.
D. Buyer, as the owner of the Stations, desires to preclude Seller
and Xxxx form competing against it during the term of this Agreement.
AGREEMENT
In consideration of the above recitals and the covenants and agreements
set forth in this Agreement, the parties agree as follows:
SECTION 1. COVENANT
Seller and Xxxx covenant and agree that for a period of three years
after the date of this Agreement, neither Seller, Xxxx nor any entity
controlling, controlled by or under common control with Seller or Xxxx (an
"Affiliate") will, directly or indirectly, own, manage, operate, join, control,
or engage or participate in the ownership, management, operation, or control
of, or be connected as a shareholder, director, officer, agent, partner,
42
- 2 -
joint venturer, consultant, advisor, or otherwise with, or render any services
to any business or organization any part of which engages in the business of
television broadcasting serving or proposing to serve all or any portion of the
Buffalo, New York, or Rochester, New York, designated Market Areas (DMA) as
defined by X.X. Xxxxxxx. The foregoing covenant shall not prohibit Seller,
Xxxx or any Affiliate from owning securities of any company listed on a national
securities exchange.
SECTION 2. COMPENSATION
As compensation for the covenants of Seller and Xxxx not to compete with
Buyer, Buyer has pais to Seller and Xxxx the amount of One Hundred Thousand
dollars (40,000).
SECTION 3. ENFORCEABILITY; REMEDIES
3.1 Remedies. Seller and Xxxx agree that if Seller, Xxxx or any
Affiliate engages or threatens to engage in any activity that constitutes a
violation of the provisions of this Agreement, Buyer shall have the right and
remedy to have the provisions of this Agreement specifically enforced to the
extent permitted by law by any court having jurisdiction, it being acknowledged
and agreed that any breach of this Agreement would cause immediate irreparable
injury to Buyer and that money damages would not provide an adequate remedy at
law for any breach. Such right and remedy shall be in addition to, and not in
lieu of, any other rights and remedies available to Buyer at law or in equity.
3.2 Reformation. If any of the provisions or covenants contained in
this Agreement are held to be unenforceable in any jurisdiction because of the
duration or scope thereof, the court making such determination shall have the
power to reduce the duration and/or scope of the provision or covenant, and the
provision or covenant in its reduced form shall be enforceable; provided,
however, that the determination of such court shall not affect the
enforceability of this Agreement in any other jurisdiction.
SECTION 4. MISCELLANEOUS
4.1 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:
43
-3-
If to Seller/Xxxx or any Affiliate: Xxxxxxx X. Xxxx
Xxxx Broadcasting of New York, L.L.C.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
If to Buyer: Xxxxxx X. Xxxxxx
Xxxxxx Communications of Buffalo-51, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx 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
4.1.
4.2 Benefit and Binding Effect. No party may assign this Agreement
without the prior written consent of the other party hereto. This Agreement
shall be binding upon and inure to the benefit of the parties and their and
their respective successors and permitted assigns.
4.3 Further Assurance. The parties shall execute any other documents
that may be necessary and desirable to the implementation and consummation of
this Agreement.
4.4 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).
4.5 Headings. The headings herein are included for ease of reference
only and shall not control or affect the meaning or construction of the
provisions of this Agreement.
4.6 Amendments. This Agreement cannot be amended, supplemented, or
change 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.
4.7 Counterparts. this agreement may be signed in counterparts with
the same effect as if the signature on each counterpart were upon the same
instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
44
IN WITNESS WHEREOF, the parties hereto have duly executed this
Noncompetition Agreement as of the day and year first above written.
XXXX BROADCASTING OF NEW YORK,
L.L.C.
By:
-----------------------------
Name:
Title:
XXXXXXX X. XXXX
--------------------------------
XXXXXX COMMUNICATIONS OF
BUFFALO-51, INC.
By:
-----------------------------
Xxxxxxx X. Xxxxxx
Secretary
45
SCHEDULE 8.3(d)
BUYER'S OPINION
1. Buyer is a corporation duly organized and in good standing under
the laws of the State of Florida. Guarantor is a corporation duly organized
and in good standing under the laws of the State of Delaware.
2. Each of Buyer and Guarantor has full corporate power and authority
to execute, deliver and perform the Asset Purchase Agreement and the other
Transaction Documents [Transaction Documents shall mean the documents executed
and delivered by Buyer at Closing] to which it is a party. Buyer's and
Guarantor's execution, delivery, and performance of the Purchase Agreement and
the other Transaction Documents to which it is a party have been duly and
validly authorized by all necessary corporate action on the part of Buyer or
Guarantor, as the case may be.
3. The Purchase Agreement and the Guarantee and each of the other
Transaction Documents to which Buyer or Guarantor is a party have been duly
executed and delivered by Buyer or guarantor, as the case may be, and
constitute the valid and binding obligation of Buyer or Guarantor, as the case
may be, enforceable against Buyer or Guarantor, as the case may be, in
accordance with their respective terms subject to (i) bankruptcy, insolvency,
reorganization, moratorium and other similar laws and related court decisions
now or hereinafter in effect relating to creditors' rights and (ii) the
application of general equitable principles.
4. The execution, delivery and performance by Buyer and Guarantor of
the Purchase Agreement and the other Transaction Documents to which it is a
party (a) do not require the consent of any third party under any of the Buyer
or Guarantor Agreements [Buyer or Guarantor agreements shall mean such
agreements that are certified by Buyer to Buyer's counsel to be material to the
operation of Buyer's business or the transactions contemplated by the Purchase
Agreement]; (b) do not violate any provisions of Buyer's or Guarantor's
corporate charter or bylaws; (c) do not violate any Applicable Law [Applicable
Law means those laws and regulations that a lawyer exercising customary
professional diligence would recognize as being applicable to the transactions
contemplated by the Transaction Documents, although no opinion is hereby
expressed as to laws other than the laws of the State of Florida], or judgment,
order, injunction, or decree, which is applicable to Buyer or Guarantor and
known to us; and (d) do not, either alone or with the giving of notice or the
passage of time or both, conflict with, constitute grounds for termination of,
or result in a breach of the terms, conditions or provisions of, or constitute
a default under any of the Buyer or Guarantor Agreements.
Opinion 1-4 to be provided by Buyer's General Counsel.
