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EXHIBIT 10.146
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ASSET PURCHASE AGREEMENT
BY AND BETWEEN
XXXXXX COMMUNICATIONS OF FT. XXXXXX-34, INC.
AND
PARAMOUNT STATIONS GROUP, INC.
FOR
TELEVISION STATION WTVX(TV),
FT. XXXXXX, FLORIDA
FEBRUARY 19, 1997
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TABLE OF CONTENTS
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Accounts Receivable" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Assumed Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Consents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Credit Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"FCC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"FCC Consent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"FCC Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Final Order" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"HSR Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Intangibles" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Xxxxxx Credit Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Permitted Liens" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Real Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Tangible Personal Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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) The Purchase Price; Payoff Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(b) Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(c) Manner of Determining Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.4 Assumption of Liabilities and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1 Organization, Standing and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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3.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.4 Governmental Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.5 Assets; Title to and Condition of Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.6 Title to and Condition of Tangible Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.7 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.8 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.9 Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.10 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.11 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.12 Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(a) Employees and Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(b) Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(c) Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.14 Claims and Legal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.15 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.17 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.18 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.1 Organization, Standing and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.4 Buyer Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.2 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.3 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.4 Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.5 Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.6 Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.7 Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.8 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.9 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.10 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.11 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.12 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.13 Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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SECTION 6. SPECIAL COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.1 FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.2 HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.3 Control of the Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.4 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.5 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.6 Access to Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.7 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.8 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.9 WTVX Broadcast Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT CLOSING . . . . . . . . . . . . . . . . . . . . . . 19
7.1 Conditions to Obligations of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(a) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(b) Covenants and Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(c) Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(d) FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(e) Governmental Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(f) No Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(g) HSR Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(h) Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(i) Xxxxxxxxx Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.2 Conditions to Obligations of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(a) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(b) Covenants and Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(c) Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(d) FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(e) No Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(f) HSR Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(g) Xxxxxxxxx Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 8. CLOSING AND CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(a) Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(b) Closing Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.2 Deliveries by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(a) Transfer Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(b) Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(c) Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(d) Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(e) Licenses, Contracts, Business Records, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 23
(f) Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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(g) Evidence of Debt Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.3 Deliveries by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(a) Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(b) Assumption Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(c) Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(d) Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 9. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
9.1 Termination by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(a) Mutual Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(b) Upset Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(c) Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(d) Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(e) Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(f) Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(g) Assignee Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(h) Termination of Xxxxxxxxx Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . 24
9.2 Termination by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(a) Mutual Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(b) Upset Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(c) Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(d) Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(e) Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(f) Xxxxxxxxx Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(g) Termination of Xxxxxxxxx Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . 25
9.3 Rights on Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.4 Escrow Deposit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 10 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; CERTAIN REMEDIES . . . . . . . . . . . 26
10.1 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.2 Indemnification by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.3 Indemnification by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.4 Procedure for Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.5 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.6 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.1 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.3 Benefit and Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.4 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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11.5 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.6 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.7 Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.8 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.9 Waiver of Compliance; Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.11 Press Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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LIST OF SCHEDULES
WTVX-TV
Schedule 2.2 -- Excluded Property
Schedule 3.3 -- Consents
Schedule 3.4 -- Licenses
Schedule 3.5 -- Real Property
Schedule 3.6 -- Tangible Personal Property
Schedule 3.7 -- Assumed Contracts
Schedule 3.9 -- Intangibles
Schedule 3.10 -- Insurance Policies
Schedule 3.12 -- Employee Matters
Schedule 3.14 -- Claims and Legal Actions
Schedule 3.15 -- Environmental Matters
Schedule 8.2(f) -- Form of Opinion of Seller's Counsel
Schedule 8.3(d) -- Form of Opinion of Buyer's Counsel
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is dated as of February 19, 1997, by
and between Xxxxxx Communications of Ft. Xxxxxx-34, Inc., a Florida corporation
("Seller") and Paramount Stations Group, Inc., a Delaware corporation
("Buyer").
RECITALS
A. Seller is a party to an Option Agreement dated as of December
29, 1995 with Xxxxxxxxx Media, Inc. ("Xxxxxxxxx") and Xxxxxxxxx Media of
Florida, Inc. ("Xxxxxxxxx-Florida"), as amended by letter dated June 18, 1996
from Xxxxxx Communications Corporation to Xxxxxxxxx, Xxxxxxxxx-Florida and
certain other affiliates thereof and by First Amendment to Option Agreement
dated as of December 31, 1996 with Xxxxxxxxx, Xxxxxxxxx-Florida and Xxxxxxxxx
Broadcasting of Florida, Inc. ("Xxxxxxxxx-Broadcasting") (such Option
Agreement, as amended, shall be referred to herein as the "Option Agreement"),
pursuant to which Xxxxxxxxx-Florida and Xxxxxxxxx-Broadcasting (collectively,
the "Xxxxxxxxx Companies") have granted to Seller an exclusive and irrevocable
option (the "Option") to acquire substantially all of the assets of Television
Station WTVX-TV, Ft. Xxxxxx, Florida (the "Station").
B. Seller has given notice to the Xxxxxxxxx Companies of its
exercise of the Option. Pursuant to the Option Agreement, Seller intends to
enter into an Asset Purchase Agreement (the "Xxxxxxxxx Purchase Agreement")
with the Xxxxxxxxx Companies as soon as possible after the date hereof pursuant
to which the Xxxxxxxxx Companies will sell to Seller substantially all of the
assets of the Station.
C. Immediately following and subject to the closing of the
transactions contemplated by the Xxxxxxxxx Purchase Agreement (the "Xxxxxxxxx
Closing") and subject to the conditions set forth in Section 7 hereof, Seller
will sell, and Buyer will buy, all of the assets (other than the Excluded
Assets) that are owned, leased or licensed by Seller (the "Xxxxxx Assets") and
the Xxxxxxxxx Companies which are acquired by Seller pursuant to the Xxxxxxxxx
Purchase Agreement (the "Xxxxxxxxx Assets") and which are used or useful in the
business and operations of the Station, for the price and on the terms and
conditions set forth in this Agreement.
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:
9
SECTION 1. DEFINITIONS
The following terms, as used in this Agreement, shall have the
meanings set forth in this Section, it being understood, however, that the
definitions set forth below give effect where appropriate as of the date hereof
and as of the Closing Date to the consummation of the Xxxxxxxxx Closing so as
to include within their scope, the Xxxxxx Assets and the Xxxxxxxxx Assets.
"Accounts Receivable" means the rights of Seller as of the Closing
Date to payment for the sale of advertising time and other goods and services
by Seller with respect to the Station which have accrued prior to the Closing
Date.
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Buyer under this Agreement, as specified in Section 2.1 and 2.2.
"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7,
(ii) all Contracts entered into by Seller in the ordinary course of business
after the date hereof which comply with the provisions of Section 5.3 hereof;
and (iii) any other Contracts entered into by Seller between the date of this
Agreement and the Closing Date that Buyer agrees in writing to assume.
"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
in accordance herewith or otherwise to consummate the transactions contemplated
by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses,
and other agreements (including leases for personal or real property and
employment agreements), written or oral (including any amendments and other
modifications thereto) to which Seller is a party or which are binding upon
Seller and which relate to or affect the Assets or the business or operations
of the Station, 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.
"Credit Agreement" means the Credit Agreement dated as of December 29,
1995 among the Xxxxxxxxx Companies and their affiliates, as Borrowers, the
lenders party thereto, as Lenders, CIBC Inc., as Documentation Agent, and
Banque Paribas, as Administrative
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Agent, as amended by First Amendment to Credit Agreement, dated as of December
31, 1996, among the Xxxxxxxxx Companies and their affiliates, the Lenders and
Banque Paribas, as Agent, as further amended, supplemented or otherwise
modified from time to time.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money or for the deferred purchase price of
property or services, (b) all obligations of such Person as lessee under
capitalized leases, (c) all Debt of others referred to in clauses (a) and (b)
above or clause (d) below guaranteed directly or indirectly in any manner by
such Person and (d) all Debt referred to in clauses (a) and (b) above of
another Person secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any lien on property or
assets owned by such Person, even though such Person has not assumed or become
liable for the payment of such Debt.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the
assignment of the FCC Licenses to Buyer as contemplated by this Agreement.
"FCC Licenses" means all Licenses issued by the FCC to Seller in
connection with the business or operations of the Station.
"Final Order" means an action by the FCC that has not been reversed,
stayed, enjoined, set aside, annulled, or suspended, and with respect to which
no requests are pending for administrative or judicial review, reconsideration,
appeal, or stay, and the time for filing any such requests and the time for the
FCC to set aside the action on its own motion have expired.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and the rules and regulations thereunder.
"Intangibles" means all copyrights, trademarks, trade names, service
marks, service names, licenses, patents, permits, jingles, proprietary
information, technical information and data, machinery and equipment
warranties, and other similar intangible property rights and interests (and any
goodwill associated with any of the foregoing) applied for, issued to, or owned
by Seller or under which Seller is licensed or franchised and which are used or
useful in the business and operations of the Station, 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
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Station, together with any additions thereto between the date of this Agreement
and the Closing Date.
"Xxxxxx Credit Agreement" means the Amended and Restated Credit
Agreement dated as of November 19, 1996 by and among Xxxxxx Communications
Corporation, the lenders parties thereto and Union Bank of California, N.A., as
agent.
"Permitted Liens" means liens for taxes not yet due and payable and
easements and other restrictions on real estate existing as of the date hereof
which do not individually or in the aggregate materially affect the value or
use or transferability of such real estate.
"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" means the purchase price specified in Section 2.3.
"Real Property" means all real property, leaseholds and subleaseholds,
purchase options, easements, licenses, rights to access, and rights of way, and
all buildings and other improvements thereon, owned, leased or licensed by
Seller which are used or useful in the business or operations of the Station,
together with any additions thereto between the date of this Agreement and the
Closing Date, but excluding any Excluded Assets.
"Tangible Personal Property" means all machinery, equipment, tools,
furniture, leasehold improvements, office equipment, plant, inventory, spare
parts, and other tangible personal property which is owned, leased or licensed
by Seller and which is used or useful in the conduct of the business or
operations of the Station, 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 and any Excluded Assets.
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 deliver to Buyer on the Closing Date, and Buyer agrees to purchase
and accept, all of the Assets and property interests owned, leased or licensed
by Seller or in which Seller has a property interest which are used or useful
in connection with the conduct of the business or operations of the Station,
together with any additions thereto between the date of this Agreement and the
Closing Date, but excluding the assets described in Section 2.2, free and clear
of any claims, liabilities, security interests, mortgages, liens, pledges,
conditions, charges, or encumbrances of any nature whatsoever (except for
Permitted Liens), including, without limitation, the following:
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(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles, including the goodwill of
the Station, if any;
(f) All proprietary information, technical
information and data, machinery and equipment warranties, maps, computer discs
and tapes, plans, diagrams, blueprints, and schematics, including filings with
the FCC relating to the business and operation of the Station, which belong to
Seller and are within its possession and control;
(g) All choses in action of Seller relating to
the Station that are assignable to Buyer; and
(h) All records required by the FCC to be kept by
the Station and copies of all other books and records of Seller which relate to
the business or operations of the Station (exclusive of corporate, financial
and accounting records), including executed copies of the Assumed Contracts.
2.2 Excluded Assets. The Assets shall exclude the following
assets (the "Excluded Assets").
(a) Seller's cash on hand as of the Closing and
all other cash in any of Seller's bank or savings accounts; 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) All corporate and accounting records of
Seller and copies of all other books and records relating to the business and
operations of the Station;
(c) All equipment and studio space listed on
Schedule 2.2 hereto and any other property listed on Schedule 2.2 hereto; and
(d) All Accounts Receivable.
2.3 Purchase Price.
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(a) The Purchase Price; Payoff Amount. The
purchase price for the Assets shall be paid in cash at the Closing and shall be
equal to $34,250,000 adjusted as provided in Section 2.3(b) (as adjusted, the
"Purchase Price"). At Closing, the parties hereto shall cause the Deposit (as
defined below), including any interest earned thereon, to be paid to Seller and
such Deposit and interest to the extent paid to Seller shall be applied as a
credit in favor of Buyer against the Purchase Price.
The Purchase Price for the Assets shall be allocated among the Assets
in accordance with an appraisal to be performed by Bond & Xxxxxx which
allocation shall be used by the parties hereto in connection with the
preparation and filing of the Internal Revenue Service Form 8594 to be filed by
the parties hereto as required by Section 1060 of the Internal Revenue Code of
1986, as amended. Each party hereto shall not take a position on any tax
return or before any tax authority that is in any way inconsistent with the
allocation on such Form 8594. Buyer shall pay for the cost of the appraisal of
the Station.
(b) Prorations. The Purchase Price shall be
increased or decreased as required to effectuate the proration of expenses of
the Station as of 11:59 p.m. local time, on the day prior to the Closing Date.
All expenses arising from the operation of the Station, including business and
license fees, utility charges, real and personal property taxes and assessments
incurred against the Assets, property and equipment rentals, applicable
copyright or other fees, sales and service charges, taxes (except for taxes
arising from the transfer of the Assets under this Agreement which shall be
governed by Section 11.1 hereof), prepaid time sales agreements and similar
prepaid and deferred items, shall be prorated between Buyer and Seller in
accordance with the principle that Seller shall be responsible for all
expenses, costs and liabilities allocable to the period prior to the Closing
Date, and Buyer shall be responsible for all expenses, costs and liabilities
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 2.4.
(c) Manner of Determining Adjustments. Any
adjustments will, insofar as feasible, be determined and paid on the Closing
Date, with final settlement and payment by the appropriate party occurring no
later than ninety (90) days after the Closing Date or such other date as the
parties shall mutually agree upon.
2.4 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 the Seller (i) under the Licenses and the
Assumed Contracts insofar as they relate to the time on and after the Closing
Date, and arise out of events related to Buyer's ownership of the Assets or its
operation of the Station on or after the Closing Date and (ii) for the expenses
of the Station relating to the period prior to the Closing to the extent Buyer
receives a credit in
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its favor with respect thereto under Section 2.3(b). Buyer shall not assume
any other obligations or liabilities of Seller, including, without limitation,
(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 Station
prior to the Closing, (iv) any obligations or liabilities arising under
agreements entered into other than in the ordinary course of business except to
the extent such Contract is included among the Assumed Contracts, (v) any
obligation to any employee of the Station for severance benefits, vacation
time, or sick leave accrued prior to the Closing Date relating to any employee
of Seller who is not employed or offered employment by Buyer within the 90-day
adjustment period, or (vi) except as otherwise assumed pursuant to the terms of
this Agreement, any obligations or liabilities caused by, arising out of, or
resulting from any action or omission of Seller prior to the Closing, and all
such obligations and liabilities shall remain and be the obligations and
liabilities solely of Seller.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Notwithstanding the fact that the Xxxxxxxxx Closing has not occurred,
Seller represents and warrants to Buyer as set forth below as if the Xxxxxxxxx
Closing had occurred as of the date hereof:
3.1 Organization, Standing and Authority. Seller is a corporation
duly organized, validly existing, and in good standing under the laws of
Delaware. Seller has all requisite power and authority (i) to own, lease, and
use the Assets as now owned, leased, and used, (ii) to conduct the business
operations of the Station as now conducted, and (iii) 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. Seller is not a participant of any
joint venture or partnership with any person or entity with respect to any part
of the operations of the Station or any of the Assets.
3.2 Authorization and Binding Obligation. The execution,
delivery, and performance of this Agreement by Seller have been duly authorized
by all necessary corporate 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, enforceable against it 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 performance by
Seller of this Agreement and the documents contemplated hereby (with or without
the giving of notice, the lapse of time,
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or both): (i) do not require the consent of any third party which is a party
to any agreement with 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 in a proceeding involving Seller, the Station or the Assets;
(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,
the Station or the Assets may be bound; (iv) will not create any claim,
liability, mortgage, lien, pledge, condition, charge, or encumbrance of any
nature whatsoever upon any of the Assets; and (v) will not conflict with any
provision of Seller's Certificate of Incorporation or By-laws.
3.4 Governmental Licenses. Except as set forth on Schedule 3.4,
(i) Schedule 3.4 includes a true and complete list of the Licenses and lists
pending applications affecting the Licenses; (ii) Seller has delivered to Buyer
true and complete copies of the Licenses listed on such Schedule (including any
amendment and other modifications thereto), (iii) the material Licenses listed
on such Schedule have been validly issued, and Seller is the authorized legal
holder thereof, (iv) the Licenses listed on Schedule 3.4 comprise all of the
material licenses, permits, and other authorizations required from any
governmental or regulatory authority for the lawful conduct of the business and
operations of the Station in the manner and to the full extent they are now
conducted, (v) none of the material Licenses listed on such Schedule is subject
to any restriction or condition that would limit the full operation of the
Station as now operated, (vi) the material Licenses listed on such Schedule are
in full force and effect, and the conduct of the business and operations of the
Station is in material accordance therewith, and (vii) Seller has no reason to
believe that any of the material Licenses listed on such Schedule would not be
renewed by the FCC or other granting authority in the ordinary course.
3.5 Assets; Title to and Condition of Real Property. The Assets
and the Excluded Assets constitute all of the assets, whether tangible or
intangible, necessary for the continued operation of the Station as currently
conducted and upon transfer to Buyer pursuant to the terms hereof, Buyer will
acquire the Assets free and clear of all liens, claims or encumbrances
whatsoever other than Permitted Liens.
Schedule 3.5 contains a complete and accurate description of all the
Real Property and Seller's interests therein (including legal description,
owner, and use). The Real Property listed on Schedule 3.5 and any real
property interests included among the Excluded Assets comprise all real
property interests necessary to conduct the business and operations of the
Station as now conducted. Seller has good, marketable and insurable fee simple
or leasehold interests in all the Real Property subject to Permitted Liens and
any liens granted pursuant to the Credit Agreement and the Xxxxxx Credit
Agreement. Except as set forth in Schedule 3.5, there are no parties in
possession of any portion of the Real Property other than Seller,
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whether as lessees or tenants at will. There are no material structural,
electrical, mechanical, plumbing, air conditioning, heating or other material
defects in the buildings located on the Real Property and the roofs of said
buildings are free from leaks and in good condition, normal wear and tear
excepted. Seller has full legal and practical access to the Real Property.
All easements, rights-of-way, and real property licenses relating to the Real
Property have been properly recorded in the appropriate public recording
offices. Seller will cooperate with Buyer and provide such assistance as Buyer
may reasonably request in connection with Buyer's efforts to obtain on or
before Closing, at Buyer's election and expense, a policy of title insurance
and a current survey with respect to the Real Property, including, without
limitation, using its best efforts to cause all lease agreements relating to
the Real Property to be recorded in the appropriate public recording offices.
3.6 Title to and Condition of Tangible Personal Property.
Schedule 3.6 lists all material items of Tangible Personal Property. The
Tangible Personal Property listed on Schedule 3.6 and the Excluded Assets
comprise all material items of tangible personal property necessary to conduct
the business and operations of the Station as now conducted exclusive of motor
vehicles. Except as described in Schedule 3.6, Seller owns and has good and
marketable title to each item of Tangible Personal Property, and none of the
Tangible Personal Property owned by Seller is subject to any security interest,
mortgage, pledge, conditional sales agreement, or other lien or encumbrance,
except Permitted Liens and any liens granted pursuant to the Credit Agreement
and the Xxxxxx Credit Agreement. To the best of Seller's knowledge, Schedule
3.6 lists all of the financing statements filed against Seller and the
Xxxxxxxxx Companies under the Credit Agreement and the Xxxxxx Credit Agreement.
3.7 Contracts. Schedule 3.7 is a true and complete list of all
Assumed Contracts except contracts with advertisers for the sale of advertising
time on the Station for cash at prevailing rates and which may be canceled by
the Station without penalty on not more than ninety days' notice. Seller has
delivered to Buyer true and complete copies of all written Assumed Contracts,
true and complete memoranda of all oral Assumed Contracts (including any
amendments and other modifications to such Assumed Contracts), and a schedule
summarizing in reasonable detail Seller's obligations under trade and barter
agreements relating to the Station. All of the Assumed Contracts are in full
force and effect, and are valid, binding, and enforceable in accordance with
their terms and there is not, to the best of Seller's knowledge, under any
Assumed Contract any default by any party thereto or any event that, after
notice or lapse of time or both, could constitute a default. Except for the
need to obtain the Consents listed in Schedule 3.3, Seller has full legal power
and authority to assign its rights under the Assumed Contracts to Buyer in
accordance with this Agreement, and such assignment will not affect the
validity, enforceability, or continuation of any of the Assumed Contracts.
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3.8 Consents. Except for the FCC Consent provided in Section 6.1,
the other Consents described in Schedule 3.3 and the notification requirements
of the HSR Act, no consent, approval, permit, or authorization of, or
declaration to or filing with any governmental or regulatory authority, or any
other third party is required (i) to consummate this Agreement and the
transactions contemplated hereby, (ii) to permit Seller to assign or transfer
the Assets to Buyer, or (iii) to enable Buyer to conduct the business and
operations of the Station in essentially the same manner as such business and
operations are now conducted.
3.9 Intangibles. Schedule 3.9 is a true and complete list of all
Intangibles (exclusive of those listed in Schedule 3.4), all of which are valid
and in good standing and as of the date hereof, uncontested. Seller has
delivered to Buyer copies of all documents establishing or evidencing all
intangibles.
3.10 Insurance. Schedule 3.10 is a true and complete list of all
insurance policies of Seller that insure any part of the Assets or the business
of the Station. All policies of insurance listed in Schedule 3.10 are in full
force and effect.
3.11 Reports. Except as set forth in Schedule 3.4, all material
returns, reports, and statements that the Station is currently required to file
with the FCC or place in its Public File or file with any other governmental
agency have been filed, and all reporting requirements of the FCC and other
governmental authorities having jurisdiction over Seller and the Station have
been complied with in all material respects and all of such returns, reports,
and statements are substantially complete and correct as filed.
3.12 Personnel.
(a) Employees and Compensation. Schedule 3.12 contains a
true and complete list of all employees of the Station, their job description,
date of hire, salary and amount and date of last salary increase. Schedule
3.12 also contains a true and complete list as of the date of this Agreement of
all employee benefit plans or arrangements applicable to the employees of the
Station and all fixed or contingent liabilities or obligations of Seller with
respect to any person now or formerly employed by Seller at the Station,
including pension or thrift plans, individual or supplemental pension or
accrued compensation arrangements, contributions to hospitalization or other
health or life insurance programs, incentive plans, bonus arrangements, and
vacation, sick leave, disability and termination arrangements or policies,
including workers' compensation policies, and a description of all fixed or
contingent liabilities or obligations of Seller with respect to any person now
or formerly employed at the Station or any person now or formerly retained as
an independent contractor at the Station.
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(b) Labor Relations. Seller is not a party to or subject
to any collective bargaining agreements with respect to the Station. Seller
has no written or oral contracts of employment with any employee of the
Station, other than those listed in Schedule 3.7.
(c) Liabilities. Seller has no liability of any kind to
or in respect of any employee benefit plan, including withdrawal liability
under Section 4201 of ERISA. Seller has not incurred any accumulated funding
deficiency within the meaning of ERISA or Section 4971 of the Internal Revenue
Code. Seller has not failed to make any required contributions to any employee
benefit plan. The Pension Benefit Guaranty Corporation has not asserted that
Seller has incurred any liability in connection with any such plan. No lien
has been attached and no person has threatened to attach a lien on any property
of Seller as a result of a failure to comply with ERISA.
3.13 Taxes. Seller has filed or caused to be filed all federal
income tax returns and all other federal, state, county, local, or city tax
returns which are required to be filed, and it has paid or caused to be paid
all taxes shown on those returns or on any tax assessment received by it to the
extent that such taxes have become due. There are no governmental
investigations or other legal, administrative, or tax proceedings pursuant to
which Seller is or could be made liable for any taxes, penalties, interest, or
other charges, the liability for which could extend to Buyer as transferee of
the business of the Station, and no event has occurred that could impose on
Buyer any transferee liability for any taxes, penalties, or interest due or to
become due from Seller.
3.14 Claims and Legal Actions. Except for any FCC rulemaking
proceedings generally affecting the broadcasting industry, and except as set
forth on Schedules 3.4 and 3.14, there is no claim, legal action, counterclaim,
nor any order, decree or judgment, in progress or pending, or to the knowledge
of Seller threatened, against or relating to Seller with respect to its
ownership or operation of the Station or otherwise relating to the Assets or
the business or operations of the Station, nor does Seller know or have reason
to be aware of any basis for the same. In particular, but without limiting the
generality of the foregoing, and except as forth on Schedules 3.4 and 3.14,
there are no applications, complaints or proceedings pending or, to the best of
its knowledge, threatened (i) before the FCC relating to the business or
operations of the Station other than rule making proceedings which affect the
television industry generally, (ii) before any federal or state agency relating
to the business or operations of the Station involving charges of illegal
discrimination under any federal or state employment laws or regulations, or
(iii) before any federal, state, or local agency relating to the business or
operations of the Station involving zoning issues under any federal, state, or
local zoning law, rule, or regulation.
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3.15 Environmental Matters.
(a) Except as set forth in Schedule 3.15, Seller has
complied in all material respects with all laws, rules, and regulations of all
federal, state, and local governments (and all agencies thereof) concerning the
environment, public health and safety, and employee health and safety, and as
of the date hereof, no charge, complaint, action, suit, proceeding, hearing,
investigation, claim, demand, or notice has been filed or commenced against
Seller in connection with its ownership of the Assets or its ownership or
operation of the Station alleging any failure to comply with any such law,
rule, or regulation.
(b) To the best of Seller's knowledge, except as set
forth in Schedule 3.15, Seller has no liability relating to its ownership of
the Assets or its ownership and operation of the Station (and there is no basis
related to the past or present operations, properties, or facilities of Seller
for any present or future charge, complaint, action, suit, proceeding, hearing,
investigation, claim, or demand against Seller giving rise to any such
liability) under any law, rule, or regulation of any federal, state, or local
government (or agency thereof) concerning release or threatened release of
hazardous substances, public health and safety, or pollution or protection of
the environment.
(c) To the best of Seller's knowledge, except as set
forth in Schedule 3.15, Seller has no liability relating to its ownership of
the Assets or its ownership and operation of the Station (and Seller has not
handled or disposed of any substance, arranged for the disposal of any
substance, or owned or operated any property or facility in any manner that
could form the basis for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand (under the common law or
pursuant to any statute) against Seller giving rise to any such liability) for
damage to any site, location, or body of water (surface of subsurface) or for
illness or personal injury.
(d) To the best of Seller's knowledge, except as set
forth in Schedule 3.15, Seller has no liability relating to its ownership of
the Assets or its ownership and operation of the Station (and there is no basis
for any present or future charge, complaint, action, suit, proceeding, hearing,
investigation, claim, or demand against Seller giving rise to any such
liability) under any law, rule, or regulation of any federal, state, or local
government (or agency thereof) concerning employee health and safety.
(e) Except as set forth in Schedule 3.15, in connection
with its ownership of the Assets or its ownership or operation of the Station,
Seller has obtained and been in material compliance with all of the terms and
conditions of all permits, licenses, and other authorizations which are
required under, and has complied in all material respects with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables which are contained in, all federal,
state, and local laws, rules, and regulations (including all codes, plans,
judgments, orders, decrees, stipulations, injunctions,
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and charges thereunder) relating to public health and safety, worker health and
safety, and pollution or protection of the environment, including laws relating
to emissions, discharges, releases, or threatened releases of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes
into ambient air, surface water, ground water, or lands or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, or chemical,
industrial, hazardous, or toxic materials or wastes.
(f) To the best of Seller's knowledge, all properties and
equipment used in the business of the Station are and have been free of
asbestos and asbestos-related products, PCB's, dioxins, and Extremely Hazardous
Substances (as defined in Section 302 of the Emergency Planning and Community
Right-to-Know Act).
(g) To the best of Seller's knowledge, no pollutant,
contaminant, or chemical, industrial, hazardous, or toxic material or waste has
ever been manufactured, buried, stored, spilled, leaked, discharged, emitted,
or released by Seller in connection with its ownership and operation of the
Station or, to the best of Seller's knowledge, after due investigation, by any
other party on any Real Property.
3.16 Compliance with Laws. Except as set forth on Schedule 3.4,
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 Station. Neither the ownership
or use of the properties of the Station nor the conduct of the business or
operations of the Station conflicts in any material respects with the rights of
any other person or entity.
3.17 Full Disclosure. The representations and warranties of Seller
contained in this Agreement and in the schedules hereto do not contain when
taken as a whole any untrue statement of a material fact or omit to state when
taken as a whole a material fact necessary to make the statements made therein
not misleading in light of the circumstances when made and as of the time
given; provided, that this representation shall not cover any representations
in Section 3.18 which shall be given only in accordance with the terms thereof.
3.18 Financial Statements. The unaudited balance sheet of Seller
together with the fixed asset list of the Xxxxxxxxx Companies each as at
December 31, 1996, and the related unaudited statement of income including
operating cash flow of the Station for the fiscal year then ended, copies of
which have been furnished to Buyer, fairly present (subject only to normal
year-end audit adjustments in the ordinary course and the absence of notes) the
financial condition of the Station as at such date and the results of the
operations of the Station for the period ended on such date, all in accordance
with generally accepted
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21
accounting principles, and since December 31, 1996, there has been no material
adverse change in the Tangible Personal Property or the FCC Licenses.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization, Standing and Authority. Buyer is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware. Buyer has all requisite power and authority to execute and
deliver this Agreement and the documents contemplated hereby, and to perform
and comply with all of the terms, covenants, and conditions to be performed and
complied with by Buyer hereunder 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
Consents, 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) do not require the consent of any third party
which is party to any agreement with Buyer; (ii) will not conflict with the
Certificate of Incorporation or Bylaws of Buyer; (iii) will not conflict with,
result in a breach of, or constitute a default under, any law, judgment, order,
injunction, decree, rule, regulation, or ruling of any court or governmental
instrumentality; (iv) will not conflict with, constitute grounds for
termination of, result in a breach of, constitute a default under, or
accelerate or permit the acceleration of any performance required by the terms
of, any agreement, instrument, license, or permit to which Buyer is a party or
by which Buyer may be bound, such that Buyer could not acquire the Assets or
operate the Station.
4.4 Buyer Qualifications. Except solely as a result of the
overlap of the Grade A and Grade B Contours of the Station with the Grade A and
Grade B Contours of television station WBFS (the "Overlap"), Buyer is legally,
financially and otherwise qualified to be the licensee of, acquire, own and
operate the Station under the Communications Act of 1934, as amended, and the
rules, regulations and policies of the FCC. Based solely on facts known to
Buyer as of the date hereof, except for the Overlap, Buyer knows of no fact
that would, under existing law and the existing rules, regulations, policies
and procedures of the FCC
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disqualify Buyer as assignee of the FCC Licenses or as the owner and operator
of the Station.
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING
5.1 Generally.
(a) Seller agrees that, between the date of this
Agreement and the Closing Date, Seller shall operate the Station in accordance
with the Time Brokerage Agreement (the "Time Brokerage Agreement") dated as of
September 22, 1994 by and between Xxxxxxxxx Media, Inc. and Seller (by
assignment from Xxxxxx Communications Corp.), as amended by amendments dated as
of April 19, 1995 and December 29, 1995 and as assigned to Xxxxxxxxx-Florida as
of December 31, 1996, in the ordinary course of business in accordance with its
past practices (except where such conduct would conflict with the following
covenants or with Seller's other obligations under this Agreement), and in
accordance with the other covenants in this Section 5.
(b) Without the prior written consent of Buyer, Seller
shall not cancel or terminate the Xxxxxxxxx Purchase Agreement or consent to or
accept any cancellation or termination thereof, amend or otherwise modify the
Xxxxxxxxx Purchase Agreement or give any consent, waiver or approval
thereunder, waive any default under or any breach of the Xxxxxxxxx Purchase
Agreement, agree in any manner to any other amendment, modification or change
of any term or condition of the Xxxxxxxxx Purchase Agreement or take any other
action in connection with the Xxxxxxxxx Purchase Agreement that would in the
case of any of the foregoing, impair, in any material respect, the value of the
Assets or the benefit to be received by Buyer under the transactions hereunder
as if the Xxxxxxxxx Closing had occurred on the date hereof. Both prior to and
subsequent to the Xxxxxxxxx Closing, Seller shall at its discretion either
strictly enforce each of the covenants, agreements, and other obligations of
the Xxxxxxxxx Companies under the Xxxxxxxxx Purchase Agreement or take such
actions that would cause Buyer to receive the benefits that it would have
received had Seller enforced each of the covenants, agreements and obligations
under the Xxxxxxxxx Purchase Agreement. In the event of any default or any
breach by any Xxxxxxxxx Company of any of its pre-closing covenants, agreements
or other obligations under the Xxxxxxxxx Purchase Agreement, then Seller shall
be liable to Buyer under this Agreement as if Seller was the party in such
default or breach; provided, however, that Seller shall not be liable to Buyer
under this Agreement if Seller takes such action required to put Buyer in the
same position as if there had been no breach or default of the Xxxxxxxxx
Purchase Agreement.
5.2 Contracts. Seller will not enter into any contract or
commitment which is not terminable without penalty on 30-days notice relating
to the Station or the Assets, or amend or terminate any Assumed Contract except
pursuant to the expiration provisions thereof in the ordinary course (or waive
any material right thereunder), or incur any obligation
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(including obligations relating to the borrowing of money or the guaranteeing
of indebtedness) that will be binding on Buyer after Closing, except for cash
time sales agreements made in the ordinary course of business and other
contracts or commitments involving less than $5,000 individually and $25,000 in
the aggregate. Prior to the Closing Date, Seller shall deliver to Buyer a list
of all Contracts entered into between the date of this Agreement and the
Closing Date, together with copies of such Contracts.
5.3 Disposition of Assets. Seller shall not sell, assign, lease,
distribute, dividend or otherwise transfer or dispose of any of the Xxxxxx
Assets and following the Xxxxxxxxx Closing, the Xxxxxxxxx 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 Xxxxxx Assets and following the
Xxxxxxxxx Closing, the Xxxxxxxxx Assets, except for (i) liens which shall be
removed prior to the Closing Date and (ii) Permitted Liens.
5.5 Licenses. Seller shall not cause or permit following the
Xxxxxxxxx Closing, 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 Station.
5.6 Rights. Seller shall not (a)(i) cancel or terminate any
Assumed Contract or consent to or accept any cancellation or termination
thereof except pursuant to the termination provision thereof in the ordinary
course, (ii) amend, modify or change in any manner any term or condition of any
Assumed Contract or give any material consent, waiver or approval thereunder or
(iii) waive any default under or any breach of any term or condition of any
Assumed Contract or (b) take any other action in connection with any Assumed
Contract that would impair in any material respects the value of the interest
or rights of Seller thereunder or that would impair in any material respects
the rights or interests of Buyer. This covenant shall only apply following the
Xxxxxxxxx Closing to the Assumed Contracts included among the Xxxxxxxxx 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
Station for the purpose of audit and inspection and will furnish or cause to be
furnished to Buyer or its authorized representatives all information with
respect to the affairs and business of the Station that Buyer may reasonably
request (including any operations reports produced with respect to the affairs
and business of the Station).
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5.8 Insurance. Seller shall maintain substantially the same
insurance coverage provided by the existing insurance policies on the Xxxxxx
Assets and following the Xxxxxxxxx Closing, the Xxxxxxxxx Assets.
5.9 Consents. Seller shall use its commercially reasonable
efforts to obtain the Consents, without any material 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
each Real Property lease such estoppel certificates and consents to the
assignment of the lessee's interest under each such lease as Buyer's lenders
may request. If Seller is unable to obtain any Consent to the assignment of a
Contract or License, Seller will use its commercially reasonable efforts to
provide Buyer with rights and benefits of the affected Contract or License.
5.10 Books and Records. Seller shall maintain its books and
records relating to the Station in accordance with past practices.
5.11 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.
5.12 Compliance with Laws. Seller shall comply in all material
respects with all laws, rules, and regulations applicable or relating to its
operation of the Station under the Time Brokerage Agreement.
5.13 Debt. Seller shall not create, incur, assume or suffer to
exist any Debt other than Debt outstanding under the Xxxxxx Credit Agreement
and unsecured Debt aggregating not more than $100,000 at any one time
outstanding.
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.
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(b) Seller and Buyer shall promptly prepare an
appropriate application for the FCC Consent and shall file the application with
the FCC within ten (10) days of written notice by Seller to Buyer of the
execution of the Xxxxxxxxx Purchase Agreement. The parties shall prosecute the
application with all reasonable diligence and otherwise use their reasonable
commercial efforts to obtain a grant of the application as expeditiously as
practicable. Each party agrees to comply with any condition imposed on it by
the FCC Consent, except that no party shall be required to comply with a
condition if (1) the condition was imposed on it as the result of a
circumstance the existence of which does not constitute a breach by the party
of any of its representations, warranties, or covenants under this Agreement,
and (2) (i) compliance with the condition would have a material adverse effect
upon it or (ii) compliance would require divestiture of any other assets.
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 HSR Act. If required by applicable law, each party hereto
agrees to cooperate and make an appropriate filing of a Notification and Report
Form pursuant to the HSR Act with respect to the transactions contemplated
hereby within 20 days after the execution of the Xxxxxxxxx Purchase Agreement
and to supply promptly any additional information and documentary material that
may be requested pursuant to the HSR Act after appropriate negotiation with the
Department of Justice or the Federal Trade Commission of the scope of such
request. Any filing fees incurred in connection with the HSR filings of Seller
and Buyer shall be borne equally by Seller and Buyer; provided, that under no
circumstances shall Seller be required to pay for half of more than one HSR
filing fee as a result of an assignment by Buyer to a permitted assignee
hereunder.
6.3 Control of the Station. Prior to Closing, Buyer shall not,
directly or indirectly, control, supervise, direct, or attempt to control,
supervise, or direct, the operations of the Station; such operations, including
complete control and supervision of all of the Station programs, employees, and
policies, shall be the sole responsibility of Xxxxxxxxx-Florida until the
Closing.
6.4 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.
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
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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, (ii) to agree to any material adverse
change in any License or Assumed Contract to obtain a Consent required with
respect thereto or (iii) to divest itself of any assets; 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.
6.6 Access to Books and Records. Seller shall provide Buyer
access and the right to copy for a period of four (4) years 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 four (4) years from the Closing Date any books and records relating to the
Assets that are included in the Assets.
6.7 Broker. Except for Xxxx Xxxxx & Sons, Incorporated whose fees
and expenses are payable by Seller, each of Buyer and Seller represents and
warrants that neither it nor any person or entity acting on its behalf has
incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement.
6.8 Confidentiality. Each of Buyer and Seller agrees to use its
commercially reasonable efforts to keep confidential (except for disclosure
requirements of federal or state securities laws and securities markets along
with such disclosure to attorneys, bankers, underwriters, investors and other
Persons as may be appropriate in the furtherance of the transactions
contemplated hereby) all information of a material, non-public nature
(collectively, the "Confidential Information") obtained by such party from the
other party hereto in connection with the transactions contemplated hereby, and
in the event that such transactions are not consummated, each party hereto will
return to the other party hereto, or destroy, all documents and other materials
obtained from the other party in connection herewith. The term "Confidential
Information" shall be deemed not to include information which (i) is or becomes
generally available to the public or the television industry other than as a
result of a disclosure, in violation of this Agreement, by either party hereto
or its directors, officers, employees, agents and representatives or any other
person who directly or indirectly receives such information from such party,
(ii) becomes available to either party hereto on a non-confidential basis from
a source which, to such party's knowledge, is entitled to disclose it to such
party, (iii) was known to either party hereto prior to its disclosure to such
party by the other party hereto, or (iv) is developed by either party without
the benefit of Confidential Information.
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6.9 WTVX Broadcast Services. Seller agrees to keep in full force
and effect the letter agreement dated as of November 18, 1996 between Seller
and Xxxxxx Communications of West Palm Beach-25, Inc. relating to WTVX
Broadcast Services and at Closing, such agreement shall be assigned by Seller
to Buyer as an Assumed Contract.
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 (i) that are qualified as
to materiality, shall be true and correct and (ii) that are not qualified as to
materiality, shall be true and correct in all material respects, in each case
as though made on and as of the Closing Date except to the extent made
expressly as of a specified date.
(b) Covenants and Conditions. All of the obligations,
covenants and agreements of Seller set forth in this Agreement to be performed
or complied with on or prior to the Closing Date (i) that are qualified as to
materiality, shall have been performed or complied with and (ii) that are not
qualified as to materiality, shall have been performed or complied within in
all material respects, in each case on or prior to the Closing Date.
(c) Consents. All Consents indicated as Material
Consents on Schedule 3.3 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 and Seller shall have complied
with any conditions imposed on it by the FCC Consent.
(e) Governmental Authorizations. Seller shall be the
holder of all material Licenses and there shall not have been any modification
of any License that could have a material adverse effect on the Station or the
conduct of its business and operations. No proceeding shall be pending the
effect of which could be to revoke, cancel, fail to renew, suspend, or modify
adversely any material License.
(f) No Order. There shall be no order, writ, judgment,
injunction, decree, or award (an "Order") entered or issued by any United
States federal, state or local
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governmental, regulatory or administrative authority, agency or commission or
any court, tribunal, or judicial or arbitral body, in existence which restrains
or is likely to render it impossible or unlawful to consummate the transactions
contemplated by this Agreement, except to the extent such Order was caused by
or resulted from any action or omission of Buyer, Buyer consented to the
entering into or the issuing of such Order or such Order constitutes a breach
of a representation or warranty made by Buyer in this Agreement.
(g) HSR Act. Any waiting period (any extension thereof)
under the HSR Act, if any, applicable to the sale and purchase of the Assets
contemplated hereby shall have expired or shall have been terminated.
(h) Deliveries. Seller shall have made all the
deliveries to Buyer set forth in Section 8.2.
(i) Xxxxxxxxx Closing. The Xxxxxxxxx Closing shall have
occurred.
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 (i) that are qualified as
to materiality, shall be true and correct and (ii) that are not qualified as to
materiality, shall be true and correct in all material respects, in each case
as though made on and as of the Closing Date except to the extent made
expressly as of a specified date.
(b) Covenants and Conditions. All of the obligations,
covenants and agreements of Buyer set forth in this Agreement to be performed
or complied with on or prior to the Closing Date (i) that are qualified as to
materiality, shall have been performed or complied with and (ii) that are not
qualified as to materiality, shall have been performed or complied with in all
material respects in each case on or prior to the Closing Date.
(c) Deliveries. Buyer shall have made 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.
(e) No Order. There shall be no Order entered or issued
by any United States federal, state or local governmental, regulatory or
administrative authority, agency or
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commission or any court, tribunal, or judicial or arbitral body in existence
which restrains or is likely to render it impossible or unlawful to consummate
the transactions contemplated by this Agreement, except to the extent such
Order was caused by or resulted from any action or omission of Seller, Seller
consented to the entering into or the issuing of such Order or such Order
constitutes a breach of a representation or warranty made by Seller in this
Agreement.
(f) HSR Act. Any waiting period (and any extension
thereof) under the HSR Act, if any, applicable to the sale and purchase of the
Assets contemplated hereby shall have expired or shall have been terminated.
(g) Xxxxxxxxx Closing. The Xxxxxxxxx Closing shall have
occurred.
SECTION 8. CLOSING AND CLOSING DELIVERIES
8.1 Closing.
(a) Closing Date. Subject to the satisfaction or waiver
of all conditions to the obligations of the parties set forth in Section 7, the
Closing shall take place at 10:00 a.m. on a date to be agreed upon by Buyer and
Seller, that is (1) not earlier than the fifth business day after the FCC
Consent is granted, and (2) not later than ten business days following the date
upon which the FCC Consent has become a Final Order. If Buyer and Seller fail
to agree upon the date for Closing pursuant to the preceding sentence prior to
the fifth business day after the date upon which the FCC Consent becomes a
Final Order, the Closing shall take place on the tenth business day after the
date upon which the FCC Consent becomes a Final Order.
(b) Closing Place. The Closing shall be held at the
offices of Dow, Xxxxxx & Xxxxxxxxx, 0000 Xxx Xxxxxxxxx Xxx., X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000, or such other place that is agreed upon by Buyer and
Seller.
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, assignments, limited warranty
deeds 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) Intentionally Omitted.
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(c) Consents. An executed copy of any instrument
evidencing receipt of any Material Consent and to the extent available after
the use of commercially reasonable efforts by Seller, any other Consents.
(d) Certificates.
(i) A certificate, dated as of the Closing Date,
executed by Seller certifying that:
(A) the representations and warranties
of Seller set forth in this Agreement (1) that are qualified as to materiality,
are true and correct and (2) that are not qualified as to materiality, are true
and correct in all material respects, in each case as though made on and as of
the Closing Date except to the extent made expressly as of a specified date;
and
(B) the obligations, covenants and
agreements of Seller set forth in this Agreement to be performed or complied
with on or prior to the Closing Date (1) that are qualified as to materiality,
have been performed or complied with and (2) that are not qualified as to
materiality, have been performed or complied with in all material respects, in
each case on or prior to the Closing Date.
(ii) such additional certificates and
confirmations to Buyer's lenders as Buyer may reasonably request.
(d) Licenses, Contracts, Business Records, Etc. Copies
of all Licenses and Assumed Contracts.
(e) Opinions of Counsel. Opinions of Seller's counsel
dated as of the Closing Date, substantially in the form of Schedule 8.2(f)
hereto.
(f) Evidence of Debt Repayment. Copies of any and all
deeds of release, pay-off letters, Uniform Commercial Code Form UCC-3
termination statements and similar documents and instruments reasonably
requested by Buyer in order to evidence the release of any and all liens,
security interests and encumbrances on the Assets, including, without
limitation, in favor of the lenders under the Credit Agreement securing the
Xxxxxxxxx Companies' obligations under the Credit Agreement; provided that the
effectiveness of such releases and termination statements may be conditioned
upon receipt of the payoff amounts by such lenders.
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.
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(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 to the extent required hereunder.
(c) Officer's Certificate. A certificate, dated as of
the Closing Date, executed by Buyer certifying that:
(i) the representations and warranties of Buyer
set forth in this Agreement (A) that are qualified as to materiality, are true
and correct and (B) that are not qualified as to materiality, are true and
correct in all material respects, in each case as though made on and as of the
Closing Date except to the extent made expressly as of a specified date; and
(ii) the obligations, covenants and agreements of
Buyer set forth in this Agreement to be performed or complied with on or prior
to the Closing Date (A) that are qualified as to materiality, have been
performed or complied with and (B) that are not qualified as to materiality,
have been performed or complied with in all material respects, in each case 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.
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) Mutual Consent. Upon the mutual written consent of
Seller and Buyer.
(b) Upset Date. If the Closing shall not have occurred
prior to February 1, 1998.
(c) 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.
(d) 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 be satisfied or waived in writing
by Seller.
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(e) Breach. Without limiting Seller's rights under the
other provisions of this Section 9.1, if Buyer has failed to cure any material
breach of any of its representations, warranties or covenants under this
Agreement within fifteen days after Buyer received written notice of such
breach from Seller.
(f) Assignment If, on or before the deadline
specified in Section 6.1 for filing the application for FCC Consent, Buyer has
not assigned its rights and interests hereunder to a Buyer Assignee (as defined
in Section 11.3), the Buyer Assignee has not assumed Buyer's obligations
hereunder or Seller has not received the application for FCC Consent completed
and executed by the Buyer Assignee.
(g) Assignee Representations. If the
representations in Section 4.4 as they apply to the Buyer Assignee (it being
understood that the Overlap exceptions set forth in Section 4.4 shall not apply
to the Buyer Assignee) are materially inaccurate and, as a result of such
inaccuracy, the grant of the FCC Consent would reasonably be expected to be
materially delayed.
(h) Termination of Xxxxxxxxx Purchase Agreement. Upon
termination of the Xxxxxxxxx Purchase Agreement for any reason.
9.2 Termination by Buyer. This Agreement may be terminated by
Buyer and the purchase and sale of the Station abandoned, if Buyer is not then
in material default, upon written notice to Seller, upon the occurrence of any
of the following:
(a) Mutual Consent. Upon the mutual written consent of
Buyer and Seller.
(b) Upset Date. If the Closing shall not have occurred
prior to February 1, 1998.
(c) 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.
(d) 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.
(e) Breach. Without limiting Buyer's rights under the
other provisions of this Section 9.2, if Seller fails to cure any material
breach of any of its representations, warranties or covenants under this
Agreement within fifteen days after Seller received written notice of such
breach from Buyer.
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(f) Xxxxxxxxx Purchase Agreement. Upon ten days' written
notice to Seller, if Seller and the Xxxxxxxxx Companies shall not have entered
into the Xxxxxxxxx Purchase Agreement on or before the date that is 60 days
following the date hereof.
(g) Termination of Xxxxxxxxx Purchase Agreement. Upon
termination of the Xxxxxxxxx Purchase Agreement for any reason.
9.3 Rights on Termination. In the event of the termination of
this Agreement as provided in Section 9.1 or 9.2, this Agreement shall
forthwith become void and there shall be no liability on the part of any party
hereto, except (a) as set forth in Section 10, (b) nothing herein shall relieve
either party from liability for any breach hereof or failure to perform
hereunder and (c) as set forth in Section 9.4.
9.4 Escrow Deposit. Buyer has deposited with First Union National
Bank of Florida (the "Escrow Agent") the sum of Two Million Five Hundred
Thousand Dollars ($2,500,000) (the "Deposit") in accordance with an Escrow
Agreement among Buyer, Seller and the Escrow Agent (the "Escrow Agreement").
The Deposit, together with any interest on or other proceeds from the
investment thereof, shall be held and disbursed by the Escrow Agent in
accordance with the terms of the Escrow Agreement and the following provisions:
(a) At the Closing, all amounts held by the Escrow Agent
pursuant to the Escrow Agreement, including any interest on or other proceeds
from the investment of the Deposit, shall be disbursed to or at the direction
of Buyer;
(b) If this Agreement is terminated pursuant to Section
9.1 (other than pursuant to Section 9.1(e), (f) or (g)) or 9.2 and Buyer is not
in material breach of this Agreement, all amounts held by the Escrow Agent
pursuant to the Escrow Agreement, including any interest on or other proceeds
from the investment of the Deposit, shall be disbursed to or at the direction
of Buyer; and
(c) If this Agreement is terminated by Seller pursuant to
Section 9.1(e), (f) or (g), then the Deposit shall be disbursed by the Escrow
Agent to or at the direction of Seller as liquidated damages and any interest
on or other proceeds from the investment of the Deposit shall be disbursed by
the Escrow Agent to or at the direction of Buyer. If this Agreement is
terminated by Seller as provided in the preceding sentence, the payment to
Seller of the Deposit shall constitute full payment and the exclusive remedy
for any damages suffered by Seller. Seller and Buyer agree in advance that
actual damages would be difficult to ascertain and that the amount of the
Deposit is a fair and equitable amount to reimburse Seller for damages
sustained due to Buyer's material breach of this Agreement or the circumstances
described in Section 9.1(f) and (g).
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SECTION 10 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION;
CERTAIN REMEDIES
10.1 Survival. The representations, warranties, covenants and
agreements of Seller and Buyer contained in or made pursuant to this Agreement
or in any certificate, document or instrument furnished pursuant hereto or in
connection herewith shall survive in full force and effect until the first
anniversary of the Closing Date regardless of any investigation by the parties;
except that any covenant required to be performed by its terms after the
Closing Date shall survive for the period required to perform such covenant
pursuant to the terms of this Agreement.
10.2 Indemnification by Seller. Subject to Section 10.1, 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, schedule, document, or instrument delivered to Buyer under this
Agreement.
(b) Any and all obligations of Seller or the Xxxxxxxxx
Companies not assumed by Buyer pursuant to this Agreement, including, without
limitation, any liabilities arising at any time under any Contract not included
in the Assumed Contracts.
(c) Any and all losses, liabilities, or damages
contingent or otherwise resulting from the operation or ownership of the
Station by Seller or the Xxxxxxxxx Companies 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. Subject to Section 10.1, Buyer
hereby agrees to indemnify and hold Seller harmless against and with respect
to, and shall reimburse Seller for:
(a) Any and all losses, liabilities, or damages resulting
from any untrue representation, breach of warranty, or 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.
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(b) Any and all obligations of Seller assumed by Buyer
pursuant to this Agreement.
(c) Any and all losses, liabilities, or damages
contingent or otherwise, resulting from the operation of the Station 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; provided, however, that the failure to provide such notice shall
not release the Indemnifying Party from any of its obligations under this
Section 10 except to the extent the Indemnifying Party is materially prejudiced
by such failure.
(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.
(c) With respect to any claim by a third party as to
which the Claimant is entitled to indemnification under this Agreement, the
Indemnifying Party shall have the right at its own expense, to participate in
or assume control of the defense of such claim, and the Claimant shall
cooperate fully with the Indemnifying Party subject to reimbursement for
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
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of any third-party claim, the Claimant shall have the right to participate in
the defense of such claim at its own expense. If the Indemnifying Party does
not elect to assume control or otherwise participate in the defense of any
third party claim, it shall be bound by the results obtained by the Claimant
with respect to such claim.
(d) If a claim, whether between the parties or by a third
party, requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
(e) The indemnification rights provided in Sections 10.2
and 10.3 shall extend to the shareholders, directors, officers, employees, and
representatives of any Claimant although for the purpose of the procedures set
forth in this Section 10.4, any indemnification claims by such parties shall be
made by and through the Claimant.
(f) Notwithstanding anything in this Agreement to the
contrary, neither party shall indemnify or otherwise be liable to the other
party for any breach of a representation or warranty, or for breach of any
covenant in this Agreement except to the extent the losses, obligations,
liabilities, costs and expenses of such party arising therefrom exceed in the
aggregate Ten Thousand Dollars ($10,000). The provisions of the foregoing
sentence shall not apply to liabilities assumed by either party pursuant to the
adjustments and prorations set forth in Section 2.3.
10.5 Specific Performance. The parties recognize that if Seller
breaches this Agreement and refuses to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled, as its sole and exclusive
remedy, to obtain specific performance of the terms of this Agreement. If any
action is brought by Buyer to enforce this Agreement, Seller shall waive the
defense that there is an adequate remedy at law.
10.6 Attorneys' Fees. In the event of a default by either party
which results in a lawsuit or other proceeding for any remedy available under
this Agreement, the prevailing party shall be entitled to reimbursement from
the other party of its reasonable legal fees and expenses.
SECTION 11. MISCELLANEOUS
11.1 Fees and Expenses. Buyer and Seller shall each pay one-half
of 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
and of the fee payable to the FCC in connection with the filing of the
application for the FCC Consent. Except as otherwise provided in this
Agreement, each party shall pay its own expenses incurred in connection with
the authorization, preparation, execution, and performance of this Agreement,
including all fees
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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.
11.2 Notices. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall be (a) in
writing, (b) 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:
To Seller: Xxxxxx Communications of Ft. Xxxxxx-34, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx, Chairman
Telecopy: 000-000-0000
Telephone: 000-000-0000
with copies to: Xxxxxx Communications of Ft. Xxxxxx-34, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy: 000-000-0000
Telephone: 000-000-0000
and Xxxx X. Xxxxx, Xx., Esq.
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxx., X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telephone: 000-000-0000
Telecopy: 202-776-2222
To Buyer: Xxxxxxx Xxxxxxx, President
Paramount Stations Group, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with a copy to: General Counsel
Viacom International Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (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
11.2.
11.3 Benefit and Binding Effect.
(a) This Agreement shall not be assigned by operation or law
or otherwise, except that Buyer may assign all or any of its rights and
obligations hereunder to any Person; provided, however, that (i) Buyer shall
remain liable hereunder and Seller shall have the same rights hereunder against
Buyer as if such assignment had not occurred and (ii) upon any breach or
default of the terms of this Agreement by such Person, Seller shall have the
right at its option to bring an action directly against Buyer irrespective of
whether any action has been brought against such Person. Nothing contained in
the foregoing proviso shall limit Seller's rights against any Person to whom
Buyer has assigned any of its obligations hereunder. From and after the
effectiveness of any assignment by Buyer permitted under this Section 11.3, (A)
such assignee shall become a "Buyer Assignee" hereunder and (B) any reference
to "Buyer" in this Agreement shall be deemed to be a reference to such Buyer
Assignee. Upon an assignment by Buyer to a Buyer Assignee of its rights and
interests hereunder in accordance with this Section 11.3, such Buyer Assignee
shall be deemed to have made to Seller, effective as of the date of such
assignment, each of the representations and warranties of Buyer set forth in
Section 4, provided, however, that the Overlap exceptions set forth in Section
4.4 shall not apply to the Buyer Assignee.
(b) If (i) Buyer shall make payment to Seller of all or
any part of the obligations of the Buyer Assignee under this Agreement and (ii)
all of such obligations of such Buyer Assignee shall be paid in full in cash,
Seller shall, at the Buyer's request and expense, execute and deliver to the
Buyer appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation to the Buyer of
an interest in the obligations of such Buyer Assignee under this Agreement
resulting from such payment by the Buyer.
11.4 Further Assurances. The parties shall take any actions and
execute any other documents that may be necessary or desirable to the
implementation and consummation of this Agreement or that, in the reasonable
opinion of Buyer, may be necessary to ensure, complete, and evidence the full
and effective transfer of the Assets to Buyer pursuant to this Agreement.
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11.5 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). ALL ACTIONS AND PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE HEARD AND DETERMINED IN A
FLORIDA STATE COURT OR A FEDERAL COURT SITTING IN THE COUNTY OF PALM BEACH,
FLORIDA, AND THE PARTIES HERETO HEREBY IRREVOCABLY SUBMIT TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING AND IRREVOCABLY
WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH
ACTION OR PROCEEDING.
11.6 Headings. The headings in this Agreement are included for
ease of reference only and shall not control or affect the meaning or
construction of the provisions of this Agreement.
11.7 Gender and Number. Words used in this Agreement, regardless
of the gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine, or neuter, and any other number,
singular or plural, as the context requires.
11.8 Entire Agreement. This Agreement and the schedules hereto and
thereto, 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 and thereof. This Agreement supersedes all prior negotiations between
the parties and cannot be amended, supplemented, or changed except by an
agreement in writing that makes specific reference to this Agreement and which
is signed by the party against which enforcement of any such amendment,
supplement, or modification is sought.
11.9 Waiver of Compliance; Consents. Except as otherwise provided
in this Agreement, any failure of any of the parties to comply with any
obligation, representation, warranty, covenant, agreement, or condition herein
may be waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, representation,
warranty, covenant, agreement or condition shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any party hereto, such
consent shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in this Section 11.9.
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11.10 Counterparts. This Agreement may be signed in counterparts
with the same effect as if the signature on each counterpart were upon the same
instrument.
11.11 Press Releases. Seller and Buyer shall jointly prepare and
determine the timing of, any press release, or other announcement to the public
or the news media relating to the execution of this Agreement. Neither party
hereto will issue any press release or make any other public announcement
relating to the transactions contemplated by this Agreement without the prior
consent of the other party hereto, except that either party may make any
disclosure required to be made by it under applicable law (including federal or
state securities laws and securities exchange regulations) if it determines in
good faith that it is appropriate to do so and gives prior notice to the other
party hereto.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
PARAMOUNT STATIONS GROUP, INC.
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: President
XXXXXX COMMUNICATIONS OF FT. XXXXXX-34,
INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman & CEO
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