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EXHIBIT 10.195
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is dated as of the 19th day of March,
1998, by and among Xxxxxx Communications of Portland-22, Inc., a Florida
corporation ("Buyer"); Xxxxxx Communications Corporation, a Delaware corporation
("PCC"); Blackstar Communications of Oregon, Inc., a Delaware corporation
("Blackstar Oregon"); and Blackstar of Salem, Inc., a Delaware corporation
("Blackstar Salem"; Blackstar Oregon and Blackstar Salem are referred to herein
individually as a "Seller" and collectively as the "Sellers").
R E C I T A L S
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A. Sellers own and operate television station KBSP(TV), Channel 22,
Salem, Oregon (the "Station") pursuant to licenses issued by the Federal
Communications Commission ("FCC") to Blackstar Salem.
X. Xxxxxxx desire to sell, and Buyer desires to buy, substantially all
the assets that are used or useful in the business or operations of the Station,
for the price and on the terms and conditions set forth in this Agreement.
A G R E E M E N T S
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In consideration of the above recitals and of the mutual agreements and
covenants contained in this Agreement, Buyer and Sellers, intending to be bound
legally, agree as follows:
SECTION 1. DEFINITIONS
The following terms, as used in this Agreement, shall have the meanings
set forth in this Section:
"Accounts Receivable" means all accounts receivable of Sellers with
respect to the Station.
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Buyer under this Agreement, as specified in Section 2.1.
"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7 that
are specifically designated on Schedule 3.7 as Contracts that are to be assumed
by Buyer upon its purchase of the Station, (ii) any Contracts entered into by
Sellers between the date of this Agreement and the Closing Date that Buyer
agrees in writing to assume, and (iii) time sales contracts entered into by
Sellers in compliance with Section 5.3.
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"Closing" means the consummation of the purchase and sale of the Assets
pursuant to this Agreement in accordance with the provisions of Section 8.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to Buyer or
otherwise to consummate the transactions contemplated by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses, and
other agreements (including leases for personal or real property and employment
agreements), written or oral (including any amendments and other modifications
thereto) to which either Seller is a party or which are binding upon either
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 either Seller between the date of this Agreement and
the Closing Date.
"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 either 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.
"Intangibles" means all copyrights, trademarks, trade names, service
marks, service names, licenses, patents, permits, jingles, proprietary
information, technical information and data, machinery and equipment warranties,
and other similar intangible property rights and interests applied for, issued
to, or owned by either Seller or under which either 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.
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"Licenses" means all licenses, permits, and other authorizations issued
by the FCC, the Federal Aviation Administration, or any other federal, state, or
local governmental authorities to either Seller 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.
"Purchase Price" means the purchase price specified in Section 2.3.
"Real Property" means all real property and interests in real property,
including fee estates, leaseholds and subleaseholds, purchase options,
easements, licenses, rights to access, and rights of way, and all buildings and
other improvements thereon, and other real property interests 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.
"Tangible Personal Property" means all machinery, equipment, tools,
vehicles, furniture, leasehold improvements, office equipment, plant, inventory,
spare parts, and other tangible personal property which are 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.
SECTION 2. PURCHASE AND SALE OF ASSETS
2.1 AGREEMENT TO SELL AND BUY. Subject to the terms and conditions set
forth in this Agreement, each Seller hereby agrees to sell, transfer, and
deliver to Buyer on the Closing Date, and Buyer agrees to purchase, all of the
tangible and intangible assets 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 liens for current taxes not
yet due and payable), including the following:
(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles and all other intangible assets of each
Seller relating to the Station that are not specifically included within the
Intangibles;
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(f) All of each Seller's proprietary information, technical
information and data, machinery and equipment warranties, maps, computer discs
and tapes, plans, diagrams, blueprints, and schematics, including filings with
the FCC relating to the business and operation of the Station;
(g) All choses in action of either Seller relating to the
Station, other than any claims made or to be made by either Seller in the
litigation described in Schedule 3.15; and
(h) All books and records relating to the business or
operations of the Station, including executed copies of the Assumed Contracts,
and all records maintained by Sellers pursuant to the rules and regulations of
the FCC.
2.2 EXCLUDED ASSETS. The Assets shall exclude the following assets:
(a) Each Seller's cash on hand as of the Closing and all other
cash in any of each 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 investments;
(b) All books and records that either Seller is required by
law to retain and that pertain to such Seller's corporate organization;
(c) Any pension, profit-sharing, or employee benefit plans,
and any collective bargaining agreements;
(d) The Accounts Receivable as of 11:59 p.m., Portland time,
on the day prior to the Closing Date; and
(e) All property listed on Schedule 2.2 hereto.
2.3 PURCHASE PRICE. The Purchase Price for the Assets shall be Thirty
Million Dollars ($30,000,000) adjusted as provided below:
(a) PRORATIONS. The Purchase Price shall be increased or
decreased as required to effectuate the proration of expenses. All expenses
arising from the operation of the Station, including business and license fees,
utility charges, real and personal property taxes and assessments levied against
the Assets, property and equipment rentals, applicable copyright or other fees,
sales and service charges, taxes (except for taxes arising from the transfer of
the Assets under this Agreement), FCC annual regulatory fees and similar prepaid
and deferred items, shall be prorated between Buyer and Sellers in accordance
with the principle that Sellers shall be responsible for all expenses, costs,
and liabilities allocable to
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the period prior to the Closing Date, and Buyer shall be responsible for all
expenses, costs, and obligations allocable to the period on and after the
Closing Date. Notwithstanding the preceding sentence, there shall be no
adjustment for, and Sellers shall remain solely liable with respect to, any
Contracts not included in the Assumed Contracts and any other obligation or
liability not being assumed by Buyer in accordance with Section 2.5.
(b) MANNER OF DETERMINING ADJUSTMENTS.
(1) Any adjustments will, insofar as feasible, be
determined and paid on the Closing Date in accordance with the following
procedures: Sellers shall prepare and deliver to Buyer not later than five (5)
days before the Closing Date a preliminary settlement statement which shall set
forth Sellers' good faith estimate of the adjustments to the Purchase Price
under Section 2.3(a). The preliminary settlement statement (i) shall contain all
information reasonably necessary to determine the adjustments to the Purchase
Price under Section 2.3(a), to the extent such adjustments can be determined or
estimated as of the date of the preliminary settlement statement, and such other
information as may be reasonably requested by Buyer, and (ii) shall be certified
by Sellers to be true and complete in all material respects as of the date
thereof.
(2) Final settlement and payment of any adjustments
by the appropriate party shall occur no later than ninety (90) days after the
Closing Date, or upon such other date as the parties shall mutually agree, in
accordance with the following procedures: Buyer shall prepare and deliver to
Sellers no later than sixty (60) days following the Closing Date a final
settlement statement which shall set forth Buyer's good faith estimate of the
adjustment to the Purchase Price under Section 2.3(a). The final settlement
statement (i) shall contain all information reasonably necessary to determine
the adjustments to the Purchase Price under Section 2.3(a) and such other
information as may be reasonably requested by Sellers, and (ii) shall be
certified by Buyer to be true and complete in all material respects as of the
date thereof. Buyer and Sellers shall use good faith efforts to resolve any
disputes involving the determination of the Purchase Price.
2.4 PAYMENT OF PURCHASE PRICE. The Purchase Price, as adjusted, shall
be paid by Buyer to Sellers at Closing by wire transfer of same-day funds
pursuant to wire instructions which shall be delivered by Sellers to Buyer, at
least two (2) days prior to the Closing Date.
2.5 ASSUMPTION OF LIABILITIES AND OBLIGATIONS. As of the Closing Date,
Buyer shall assume and undertake to pay, discharge, and perform all obligations
and liabilities of Sellers under the Licenses and the Assumed Contracts insofar
as they relate to the time on and after the Closing Date, and arise out of
events related to Buyer's ownership of the Assets or its operation of the
Station on or after the Closing Date. Buyer shall not assume any other
obligations or liabilities of either Seller, including (i) any obligations or
liabilities under any Contract not included in the Assumed Contracts, (ii) any
obligations or liabilities under
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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
capitalized leases or other financing agreements, (v) any obligations or
liabilities arising under agreements entered into other than in the ordinary
course of business, (vi) any obligations or liabilities of either Seller under
any employee pension, retirement, health and welfare or other benefit plans or
collective bargaining agreements, (vii) any obligation to any employee of the
Station for severance benefits, vacation time, or sick leave accrued prior to
the Closing Date, or (viii) any obligations or liabilities caused by, arising
out of, or resulting from any action or omission of either Seller prior to the
Closing, and all such obligations and liabilities shall remain and be the
obligations and liabilities solely of Sellers.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers represent and warrant to Buyer as follows:
3.1 ORGANIZATION, STANDING, AND AUTHORITY. Each Seller is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware, and Blackstar Oregon is duly qualified to conduct business
in, and is in good standing under, the laws of the State of Oregon. Each Seller
has all requisite power and authority (i) to own, lease, and use the Assets as
now owned, leased, and used, (ii) to conduct the business and operations of the
Station as now conducted, and (iii) to execute and deliver this Agreement and
the documents contemplated hereby and thereby, and to perform and comply with
all of the terms, covenants, and conditions to be performed and complied with by
such Seller hereunder and thereunder. Neither Seller is a participant in any
joint venture or partnership with any other 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 each Seller have been duly authorized by all
necessary actions on the part of each Seller and its shareholders. This
Agreement has been duly executed and delivered by each Seller and constitutes
the legal, valid, and binding obligations of each 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 FCC
Consent provided for in Section 6.1, the other Consents listed on Schedule 3.3
and any filing required under the HSR Act, the execution, delivery, and
performance of this Agreement and the documents contemplated hereby and thereby
(with or without the giving of notice, the lapse of time, or both): (i) do not
require the consent of any third party; (ii) will not conflict with
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any provision of the Articles of Incorporation or Bylaws of either Seller; (iii)
will not conflict with, result in a breach of, or constitute a default under,
any law, judgment, order, ordinance, injunction, decree, rule, regulation, or
ruling of any court or governmental instrumentality; (iv) will not conflict
with, constitute grounds for termination of, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license, or permit to which
either Seller is a party or by which either Seller may be bound; and (v) will
not create any claim, liability, mortgage, lien, pledge, condition, charge, or
encumbrance of any nature whatsoever upon any of the Assets.
3.4 GOVERNMENTAL LICENSES. Schedule 3.4(a) includes a true and complete
list of the Licenses. Sellers have delivered to Buyer true and complete copies
of all material Licenses (including any amendments and other modifications
thereto). The Licenses have been validly issued, and Blackstar Salem is the
authorized legal holder thereof. The Licenses listed on Schedule 3.4(a) comprise
all of the licenses, permits, and other authorizations required from any
governmental or regulatory authority for the lawful conduct of the business and
operations of the Station in the manner and to the full extent they are now
conducted, except for such licenses, permits and other authorizations the
failure of which to obtain could not reasonably be expected to have a material
adverse effect on the conduct of the business or operations of the Station, and
none of the Licenses is subject to any restriction or condition that would limit
the full operation of the Station as now operated. The Licenses are in full
force and effect, and the conduct of the business and operations of the Station
is in accordance therewith. Sellers have no reason to believe that any of the
Licenses would not be renewed by the FCC or other granting authority in the
ordinary course. Except as specified on Schedule 3.4(b), Sellers have delivered
written requests for must carry with respect to each cable system identified in
Schedule 3.4(b) and, except as identified on Schedule 3.4(b), no cable system
has advised Sellers of any signal quality or copyright indemnity or other
prerequisite to cable carriage of the Station's signal, and no cable system has
declined or threatened to decline such carriage or failed to respond to a
request for carriage or sought any form of relief from carriage from the FCC.
Except as described in Schedule 3.4(b), the Sellers have elected must-carry for
the Station in the Portland ADI. Other than the FCC Licenses, Blackstar Salem
does not own, hold or lease any Assets.
3.5 TITLE TO AND CONDITION OF REAL PROPERTY. Schedule 3.5 contains a
complete and accurate description of all the Real Property and Sellers'
interests therein (including, to the extent available, street address, legal
description, owner, and use and the location of all improvements thereon). The
Real Property listed on Schedule 3.5 comprises all real property interests
necessary to conduct the business and operations of the Station as now
conducted. None of the Real Property consists of fee estates. With respect to
each leasehold or subleasehold interest included in the Real Property being
conveyed under this Agreement, so long as Sellers fulfill their obligations
under the lease therefor, Sellers have enforceable
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rights to nondisturbance and quiet enjoyment, and no third party holds any
interest in the leased premises with the right to foreclose upon Sellers'
leasehold or subleasehold interest. All towers, guy anchors, and buildings and
other improvements included in the Assets are located entirely on the Real
Property listed in Schedule 3.5. All Real Property (including the improvements
thereon) (i) is in good condition and repair consistent with its present use,
(ii) is available for immediate use in the conduct of the business and
operations of the Station, and (iii) complies with all applicable building or
zoning codes and the regulations of any governmental authority having
jurisdiction. Sellers have full legal and practical access to the Real Property.
3.6 TITLE TO AND CONDITION OF TANGIBLE PERSONAL PROPERTY. Schedule 3.6
lists all material items of Tangible Personal Property. The Tangible Personal
Property listed on Schedule 3.6 comprises all material items of tangible
personal property necessary to conduct the business and operations of the
Station as now conducted. Except as described in Schedule 3.6, Sellers own and
have good title to each item of Tangible Personal Property, and none of the
Tangible Personal Property owned by Sellers is subject to any security interest,
mortgage, pledge, conditional sales agreement, or other lien or encumbrance,
except for liens for current taxes not yet due and payable. Each item of
Tangible Personal Property is available for immediate use in the business and
operations of the Station. All items of transmitting and studio equipment
included in the Tangible Personal Property (i) have been maintained in a manner
consistent with generally accepted standards of good engineering practice, and
(ii) will permit the Station and any auxiliary broadcast facilities related to
the Station to operate in accordance with the terms of the FCC Licenses and the
rules and regulations of the FCC, and with all other applicable federal, state,
and local statutes, ordinances, rules, and regulations.
3.7 CONTRACTS. Schedule 3.7 is a true and complete list of all
Contracts except contracts with advertisers for the sale of advertising time on
the Station for cash at prevailing rates and which have not been prepaid and
which may be canceled by the Station without penalty on not more than thirty
days' notice. Schedule 3.7 includes true and complete copies of all written
Contracts, true and complete memoranda of all oral Contracts (including any
amendments and other modifications to such Contracts), and a schedule
summarizing Sellers' obligations under trade and barter agreements relating to
the Station. Other than the Contracts listed on Schedule 3.7 and cash
programming contracts, neither Seller requires any contract, lease, or other
agreement to enable it to carry on its business as now conducted. All of the
Assumed Contracts are in full force and effect, and are valid, binding, and
enforceable in accordance with their terms. There is not under any Assumed
Contract any default by any party thereto or any event that, after notice or
lapse of time or both, could constitute a default. Sellers are not aware of any
intention by any party to any Assumed Contract (i) to terminate such contract or
amend the terms thereof, (ii) to refuse to renew the Assumed Contract upon
expiration of its term, or (iii) to renew the Assumed Contract upon expiration
only on terms and conditions which are more onerous than those now existing.
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Except for the need to obtain the Consents listed in Schedule 3.3, Sellers have
full legal power and authority to assign their rights under the Assumed
Contracts to Buyer in accordance with this Agreement, and such assignment will
not affect the validity, enforceability, or continuation of any of the Assumed
Contracts.
3.8 CONSENTS. Except for the FCC Consent provided for in Section 6.1,
the other Consents described in Schedule 3.3, and any filing required under the
HSR Act, no consent, approval, permit, or authorization of, or declaration to or
filing with any governmental or regulatory authority, or any other third party
is required (i) to consummate this Agreement and the transactions contemplated
hereby, (ii) to permit each 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 uncontested. Sellers have delivered to Buyer copies of
all documents establishing or evidencing all Intangibles. To the best of
Sellers' knowledge, neither Seller is infringing upon or otherwise acting
adversely to any trademarks, trade names, service marks, service names,
copyrights, patents, patent applications, know-how, methods, or processes owned
by any other person or persons, and there is no claim or action pending, or to
the knowledge of Sellers threatened, with respect thereto. The Intangibles
listed on Schedule 3.9 comprise all intangible property interests necessary to
conduct the business and operations of the Station as now conducted.
3.10 FINANCIAL STATEMENTS. Schedule 3.10 hereto contains true and
complete copies of financial statements of Sellers, including balance sheets,
statements of operations and a statement of operating cash flow for the period
ending December 31, 1997 (collectively, the "Financial Statements"). The
Financial Statements have been prepared from the books and records of Sellers,
have been prepared in accordance with generally accepted accounting principles
consistently applied and maintained throughout the periods indicated, accurately
reflect the books, records, and accounts of the Station (which books, records,
and accounts are complete and correct), are complete and correct in all material
respects, and present fairly the financial condition of the Station as at their
respective dates and the results of operations for the periods then ended. None
of the Financial Statements understates the true costs and expenses of
conducting the business or operations of the Station, fails to disclose any
material contingent liabilities, or inflates the revenues of the Station.
3.11 INSURANCE. Schedule 3.11 is a true and complete list of all
insurance policies of Sellers that insure any part of the Assets or the business
of the Station. All policies of insurance listed in Schedule 3.11 are in full
force and effect. The insurance policies listed in Schedule 3.11 are adequate in
amount with respect to, and for the full value (subject to customary
deductibles) of, the Assets, and insure the Assets and the business of the
Station
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against all customary and foreseeable risks. During the past three years, no
insurance policy of Sellers on the Assets or the Station has been canceled by
the insurer and no application of Sellers for insurance has been rejected by any
insurer.
3.12 REPORTS. All material returns, reports, and statements required to
be filed by the Station with the FCC or with any other governmental agency
during the three-year period ending on the date hereof have been filed, and,
during such period, all reporting requirements of the FCC and other governmental
authorities having jurisdiction over each Seller and the Station have been
complied with in all material respects. All of such returns, reports, and
statements are substantially complete and correct as filed. Sellers have timely
paid to the FCC all annual regulatory fees payable with respect to the FCC
Licenses.
3.13 PERSONNEL.
(a) All of Sellers' Employee Plans and Compensation
Arrangements are listed in Schedule 3.13, and complete and accurate copies of
any such written Employee Plans and Compensation Arrangements (or related
insurance policies) have been furnished to Buyer, along with copies of any
employee handbooks or similar documents describing such Employee Plans and
Compensation Arrangements. Descriptions of any unwritten Employee Plans or
Compensation Arrangements also are provided in Schedule 3.13. Schedule 3.13 also
contains a true and complete list of all employees of the Station, title, date
of hire, salary and amount and date of last salary increase.
(b) Each Employee Plan and Compensation Arrangement has been
administered in all material respects in compliance with its own terms and in
material compliance with the provisions of ERISA, the Code, the Age
Discrimination in Employment Act and any other applicable Federal or state laws.
Sellers are not aware of the existence of any governmental audit or examination
of any Employee Plan or Compensation Arrangement or of any facts which would
lead them to believe that any such audit or examination is pending or
threatened. There exists no action, suit or claim (other than routine claims for
benefits) with respect to any Employee Plan or Compensation Arrangement pending
or, to the best knowledge of Sellers, threatened against any of such plans or
arrangements, and Sellers possess no knowledge of any facts which could give
rise to any such action, suit or claim.
(c) Sellers do not contribute to and are not required to
contribute to any Multi-employer Plan with respect to the employees of the
Station, and neither Sellers nor any other trade or business under common
control with Sellers (within the meaning of Sections 414(b), (c), (m) or (o) of
the Code) has incurred or reasonably expects to incur any "withdrawal
liability," as defined under Section 4201 ET SEQ. of XXXXX.
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(x) Xxxxxx as described in Schedule 3.13, neither Sellers nor
any other trade or business under common control with Sellers (within the
meaning of Sections 414(b), (c), (m) or (o) of the Code) sponsors, maintains or
contributes to any Employee Plan or Compensation Arrangement that provides
retiree medical or retiree life insurance coverage to former employees of
Sellers at the Station.
(e) Except as described in Schedule 3.13, with respect to each
Employee Plan and, to the extent applicable, each Compensation Arrangement: (i)
each Employee Plan that is intended to be tax-qualified, and each amendment
thereto, is the subject of a favorable determination letter, and no plan
amendment that is not the subject of a favorable determination letter would
affect the validity of an Employee Plan's letter; (ii) no prohibited
transaction, within the definition of section 4975 of the Code or Title 1, Part
4 of ERISA, has occurred which would subject either Seller to any liability; and
(iii) all contributions, premiums or payments accrued, in whole or in part,
under each Employee Plan or Compensation Arrangement or with respect thereto as
of the Closing will be paid by the Sellers prior to the Closing, including, but
not limited to, contributions thereto with respect to the plan year ending
immediately prior to the Closing.
(f) For purposes of this Agreement, the following terms shall
have the meaning indicated: (i) "Employee Plan" shall mean any pension,
profit-sharing, deferred compensation, vacation, bonus, incentive, medical,
vision, dental, disability, life insurance or any other employee benefit plan as
defined in Section 3(3) of ERISA to which Sellers or any entity related to
Sellers (under the terms of Section 414(b), (c), (m) or (o) of the Code)
contributes or to which Sellers or any entity related to Sellers (under the
terms of Sections 414(b), (c), (m) or (o) of the Code) sponsors, maintains or
otherwise is bound which provides benefits to persons employed or previously
employed at the Station; (ii) "Code" shall mean the Internal Revenue Code of
1986, as amended, any successor thereto and any regulations promulgated
thereunder; (iii) "Compensation Arrangement" shall mean any plan or compensation
arrangement other than an Employee Plan, whether written or unwritten, which
provides to employees, former employees, officers, directors and shareholders of
Sellers or any entity related to Sellers (under the terms of Section 414(b),
(c), (m) or (o) of the Code) employed or previously employed at the Station any
compensation or other benefits, whether deferred or not, in excess of base
salary or wages, including, but not limited to, any bonus or incentive plan,
stock rights plan, deferred compensation arrangement, life insurance, stock
purchase plan, severance pay plan and any other employee fringe benefit plan;
(iv) "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, any successor thereto and any regulations promulgated thereunder; and
(v) "Multi-employer Plan" means a plan, as defined in ERISA Section 3(37), to
which Sellers or any entity related to Sellers (under the terms of Section
414(b) or (c) of the Code) contributes or is required to contribute.
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(g) Neither Seller is a party to or subject to any collective
bargaining agreements with respect to the Station. Neither Seller has any
written or oral contracts of employment with any employee of the Station, other
than those listed in Schedule 3.7. Each Seller has complied in all material
respects with all laws, rules, and regulations relating to the employment of
labor, including those related to wages, hours, collective bargaining,
occupational safety, discrimination, and the payment of social security and
other payroll related taxes, and neither Seller has received any notice alleging
that it has failed to comply in any material respect with any such laws, rules,
or regulations. No controversies, disputes, or proceedings are pending or, to
the best of Sellers' knowledge, threatened, between Sellers and any employee
(singly or collectively) of the Station. No labor union or other collective
bargaining unit represents or claims to represent any of the employees of the
Station. To the best of Sellers' knowledge, there is no union campaign being
conducted to represent any employees of the Station or to solicit cards from
employees to authorize a union to request a National Labor Relations Board
certification election with respect to any employees at the Station.
3.14 TAXES. Sellers have 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 have paid or caused to be paid all taxes
shown on those returns or on any tax assessment received by Sellers to the
extent that such taxes have become due, or has set aside on their books adequate
reserves (segregated to the extent required by generally accepted accounting
principles) with respect thereto. There are no legal, administrative, or tax
proceedings or, to the best of Sellers' knowledge, governmental investigations,
pursuant to which either 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 either Seller.
3.15 CLAIMS AND LEGAL ACTIONS. Except as disclosed on Schedule 3.15 and
except for any FCC rulemaking proceedings generally affecting the broadcasting
industry, there is no claim, legal action, counterclaim, suit, arbitration,
governmental investigation or other legal, administrative, or tax proceeding,
nor any order, decree or judgment, in progress or pending, or to the knowledge
of Sellers threatened, against or relating to either Seller with respect to the
ownership or operation of the Station or otherwise relating to the Assets or the
business or operations of the Station, nor do Sellers know or have reason to be
aware of any basis for the same. In particular, but without limiting the
generality of the foregoing, there are no applications, complaints or
proceedings pending or, to the best of Sellers' 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)
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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.
3.16 ENVIRONMENTAL MATTERS.
(a) To the best of Sellers' knowledge, Sellers have complied
in all material respects with all laws, rules, and regulations of all federal,
state, and local governments (and all agencies thereof) concerning the
environment, public health and safety, and employee health and safety, and no
charge, complaint, action, suit, proceeding, hearing, investigation, claim,
demand, or notice has been filed or commenced against either Seller in
connection with its ownership or operation of the Station alleging any failure
to comply with any such law, rule, or regulation.
(b) To the best of Sellers' knowledge, Sellers have no
liability relating to their ownership and operation of the Station (and there is
no basis related to the past or present operations, properties, or facilities of
Sellers for any present or future charge, complaint, action, suit, proceeding,
hearing, investigation, claim, or demand against Sellers 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 Sellers' knowledge, Sellers have no
liability relating to their ownership and operation of the Station (and Sellers
have 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 Sellers 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 Sellers' knowledge, Sellers have no
liability relating to their 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 Sellers 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) To the best of Sellers' knowledge, Sellers have no
liability relating to their ownership and operation of the Station (and Sellers
have not exposed any employee to any substance or condition that could form the
basis for any present or future charge, complaint, action, suit, proceeding,
hearing, investigation, claim, or demand (under the common law or pursuant to
statute) against Sellers giving rise to any such liability) for any illness or
personal injury to any employee.
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(f) In connection with their ownership or operation of the
Station, Sellers have obtained and been in compliance in all material respects
with all of the terms and conditions of all permits, licenses, and other
authorizations which are required under, and have 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, 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.
(g) No pollutant, contaminant, or chemical, industrial,
hazardous, or toxic material or waste has ever been manufactured, buried,
stored, spilled, leaked, discharged, emitted, or released by Sellers in
connection with their ownership and operation of the Station or, to the best of
Sellers' knowledge, by any other party on any Real Property.
3.17 COMPLIANCE WITH LAWS. Sellers have 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. To the best of Sellers' knowledge, neither the
ownership or use of the properties of the Station nor the conduct of the
business or operations of the Station conflicts with the rights of any other
person or entity.
3.18 CONDUCT OF BUSINESS IN ORDINARY COURSE. Since December 31, 1997,
Sellers have conducted the business and operations of the Station only in the
ordinary course and has not:
(a) Suffered any material adverse change in the business,
assets, or properties of the Station, including any damage, destruction, or loss
affecting any assets used or useful in the conduct of the business of the
Station;
(b) Made any material increase in compensation payable or to
become payable to any of the employees of the Station, or any bonus payment made
or promised to any employee of the Station, or any material change in personnel
policies, employee benefits, or other compensation arrangements affecting the
employees of the Station;
(c) Made any sale, assignment, lease, or other transfer of any
of the Station's properties other than in the normal and usual course of
business with suitable replacements being obtained therefor;
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(d) Canceled any debts owed to or claims held by either Seller
with respect to the Station, except in the normal and usual course of business;
(e) Suffered any material write-down of the value of any
Assets or any material write-off as uncollectible of any accounts receivable of
the Station; or
(f) Transferred or granted any right under, or entered into
any settlement regarding the breach or infringement of, any license, patent,
copyright, trademark, trade name, franchise, or similar right, or modified any
existing right relating to the Station.
3.19 TRANSACTIONS WITH AFFILIATES. Except as set forth on Schedule
3.19, neither Seller has been involved in any business arrangement or
relationship relating to the Station with any affiliate of either Seller, and no
affiliate of either Seller owns any property or right, tangible or intangible,
which is used in the business of the Station. As used in this paragraph,
"affiliate" has the meaning set forth in Rule 12b-2 promulgated under the
Securities and Exchange Act of 1934.
3.20 BROKER. Neither Seller nor any person acting on Sellers' behalf
has incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement.
3.21 FULL DISCLOSURE. No representation or warranty made by Sellers in
this Agreement or in any certificate, document, or other instrument furnished or
to be furnished by Sellers pursuant hereto contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
required to make any statement made herein or therein not misleading.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers as follows:
4.1 ORGANIZATION, STANDING, AND AUTHORITY. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Florida and at Closing will be duly qualified to conduct business as a foreign
corporation in the State of Oregon. Buyer has all requisite power and authority
to execute and deliver this Agreement and the documents contemplated hereby and
thereby, and to perform and comply with all of the terms, covenants, and
conditions to be performed and complied with by Buyer hereunder and thereunder.
4.2 AUTHORIZATION AND BINDING OBLIGATION. The execution, delivery, and
performance of this Agreement 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
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constitutes the legal, valid, and binding obligations 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 and making any filing required under the HSR Act, the execution,
delivery, and performance by Buyer of this Agreement and the documents
contemplated hereby and thereby (with or without the giving of notice, the lapse
of time, or both): (i) do not require the consent of any third party; (ii) will
not conflict with the Articles of Incorporation or Bylaws of Buyer; (iii) will
not conflict with, result in a breach of, or constitute a default under, any
law, judgment, order, injunction, decree, rule, regulation, or ruling of any
court or governmental instrumentality; or (iv) will not conflict with,
constitute grounds for termination of, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license, or permit to which
Buyer is a party or by which Buyer may be bound, such that Buyer could not
acquire or operate the Assets.
4.4 BROKER. Neither Buyer nor any person acting on Buyer's behalf has
incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement.
4.5 QUALIFICATIONS. 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 now in effect, and the rules, regulations and
published policies of the FCC, as now in effect. Between the date hereof and the
Closing Date, Buyer shall not take or fail to take any action that could
reasonably be expected to cause the foregoing representation and warranty to be
untrue.
4.6 FULL DISCLOSURE. No representation or warranty made by Buyer in
this Agreement or in any certificate, document, or other instrument furnished or
to be furnished by Buyer pursuant hereto contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
required to make any statement made herein or therein not misleading.
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING
5.1 GENERALLY. Sellers agree that, between the date of this Agreement
and the Closing Date, Sellers shall operate the Station diligently in the
ordinary course of business in accordance with their past practices (except
where such conduct would conflict with the following covenants or with Sellers'
other obligations under this Agreement), and in accordance with the other
covenants in this Section 5.
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5.2 COMPENSATION. Sellers shall not increase the compensation, bonuses,
or other benefits payable or to be payable to any person employed in connection
with the conduct of the business or operations of the Station, except in
accordance with past practices.
5.3 CONTRACTS. Neither Seller will enter into any contract or
commitment relating to the Station or the Assets, or amend or terminate any
Contract (or waive any material right thereunder), or incur any obligation
(including obligations relating to the borrowing of money or the guaranteeing of
indebtedness) that will be binding on Buyer after Closing, except for cash time
sales agreements that are cancellable by the Station without penalty on no more
than 30-days' notice and that are entered into in the ordinary course of
business consistent with Sellers' past practices. Prior to the Closing Date,
Sellers 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.
5.4 DISPOSITION OF ASSETS. Neither Seller shall sell, assign, lease, or
otherwise transfer or dispose of any of the Assets, except where no longer used
or useful in the business or operations of the Station or in connection with the
acquisition of replacement property of equivalent kind and value.
5.5 ENCUMBRANCES. Neither Seller shall create, assume or permit to
exist any claim, liability, mortgage, lien, pledge, condition, charge, or
encumbrance of any nature whatsoever upon the Assets, except for (i) liens
disclosed on Schedule 3.5 and Schedule 3.6, which shall be removed on or prior
to the Closing Date, (ii) liens for current taxes not yet due and payable, and
(iii) mechanics' liens and other similar liens, which shall be removed on or
prior to the Closing Date.
5.6 LICENSES. Neither Seller shall cause or permit, by any act or
failure to act, any of the Licenses to expire or to be revoked, suspended, or
modified, or take any action that could cause the FCC or any other governmental
authority to institute proceedings for the suspension, revocation, or adverse
modification of any of the Licenses. Sellers shall not fail to prosecute with
due diligence any applications to any governmental authority in connection with
the operation of the Station.
5.7 RIGHTS. Neither Seller shall waive any right relating to the
Station or any of the Assets. Neither Seller shall cause, by any act or failure
to act, any cable system located within the Station's Area of Dominant Influence
to refuse to carry the Station's signal.
5.8 NO INCONSISTENT ACTION. Neither Seller shall take any action that
is inconsistent with its obligations under this Agreement or that could hinder
or delay the consummation of the transactions contemplated by this Agreement.
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5.9 ACCESS TO INFORMATION. Sellers shall give Buyer and its counsel,
accountants, engineers, appraisers and other authorized representatives
reasonable access 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, including inspections incident to the environmental study
described in Section 6.5, the engineering study described in Section 6.6 and the
appraisal described in Section 6.11, 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 financial reports and operations reports produced with respect to the
affairs and business of the Station). Without limiting the generality of the
foregoing, Sellers shall give Buyer and its counsel, accountants and other
authorized representatives reasonable access to Sellers' financial records and
Sellers' employees, counsel, accountants and other representatives for the
purpose of preparing and auditing such financial statements as Buyer determines,
in its sole judgment, are required or advisable to comply with federal or state
securities laws and the rules and regulations of securities markets as a result
of the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
5.10 MAINTENANCE OF ASSETS. Each Seller shall use its best efforts and
take all reasonable actions to maintain all of the Assets in good condition
(ordinary wear and tear excepted), and use, operate, and maintain all of the
Assets in a reasonable manner and in accordance with the terms of the FCC
Licenses, all rules and regulations of the FCC and generally accepted standards
of good engineering practice. Sellers shall maintain inventories of spare parts
and expendable supplies at levels consistent with past practices. If any loss,
damage, impairment, confiscation, or condemnation of or to any of the Assets
occurs, Sellers shall repair, replace, or restore the Assets to their prior
condition as represented in this Agreement as soon thereafter as possible, and
Sellers shall use the proceeds of any claim under any insurance policy solely to
repair, replace, or restore any of the Assets that are lost, damaged, impaired,
or destroyed.
5.11 INSURANCE. Sellers shall maintain the existing insurance policies
on the Station and the Assets.
5.12 CONSENTS. Sellers shall obtain the Consents designated on Schedule
3.3 as "Material Consents" and shall use commercially reasonable efforts to
obtain each other Consent and the estoppel certificates described in Section
8.2(b), without any change in the terms or conditions of any Contract or License
that could be less advantageous to the Station than those pertaining under the
Contract or License as in effect on the date of this Agreement. Sellers shall
promptly advise Buyer of any difficulties experienced in obtaining any of the
Consents and of any conditions proposed, considered, or requested for any of the
Consents. Upon Buyer's request, Sellers shall cooperate with Buyer and use
commercially reasonable efforts to obtain from the lessors under each Real
Property lease such estoppel
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certificates and consents to the collateral assignment of the lessee's interest
under each such lease as Buyer's senior lenders may request.
5.13 BOOKS AND RECORDS. Sellers shall maintain the books and records
relating to the Station in accordance with past practices.
5.14 NOTIFICATION. Sellers shall promptly notify Buyer in writing of
any material change in any of the information contained in Sellers'
representations and warranties contained in Section 3 of this Agreement.
5.15 FINANCIAL INFORMATION. Sellers shall furnish to Buyer within
thirty days after the end of each month ending between the date of this
Agreement and the Closing Date a statement of income and expense and a statement
of operating cash flow for the month just ended and such other financial
information (including information on payables and receivables) as Buyer may
reasonably request. All financial information delivered by Sellers to Buyer
pursuant to this Section shall be prepared from the books and records of Sellers
in accordance with generally accepted accounting principles consistently
applied, shall accurately reflect the books, records, and accounts of the
Station, shall be complete and correct in all material respects, and shall
present fairly the financial condition of the Station as at their respective
dates and the results of operations for the periods then ended.
5.16 COMPLIANCE WITH LAWS. Sellers shall comply in all material
respects with all laws, rules, and regulations applicable or relating to the
ownership and operation of the Station.
5.17 FINANCING LEASES. Sellers will satisfy at or prior to Closing all
outstanding obligations under capital and financing leases with respect to any
of the Assets and obtain good title to the Assets leased by either Seller
pursuant to those leases so that those Assets shall be transferred to Buyer at
Closing free of any interest of the lessors.
5.18 PROGRAMMING. Sellers shall not make any material changes in the
broadcast hours or in the percentages of types of programming broadcast by the
Station, or make any other material change in the Station's programming
policies, except such changes as in the good faith judgment of the Sellers are
required by the public interest.
5.19 PRESERVATION OF BUSINESS. Sellers shall use their best efforts to
preserve the business and organization of the Station and use their best efforts
to keep available to the Station its present employees and to preserve the
audience of the Station and the Station's present relationships with suppliers,
advertisers, and others having business relations with it, to the end that the
business, operations, and prospects of the Station shall be unimpaired at the
Closing Date. The ordinary and customary operating, marketing, promotional,
sales, and advertising practices of the Station shall be maintained.
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5.20 PERSONNEL RECOMMENDATIONS. Sellers shall promptly notify Buyer as
personnel vacancies occur at the Station and consider for employment all
personnel recommended by Buyer for such vacant positions.
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC CONSENT.
(a) The assignment of the FCC Licenses in connection with the
purchase and sale of the Assets pursuant to this Agreement shall be subject to
the prior consent and approval of the FCC.
(b) Sellers and Buyer filed on March 10, 1998, an appropriate
application for the FCC Consent. The parties shall prosecute the application
with all reasonable diligence and otherwise use their best efforts to obtain a
grant of the application as expeditiously as practicable. Each party agrees to
comply with any condition imposed on it by the FCC Consent, except that no party
shall be required to comply with a condition if (1) the condition was imposed on
it as the result of a circumstance the existence of which does not constitute a
breach by the party of any of its representations, warranties, or covenants
under this Agreement, and (2) compliance with the condition would have a
material adverse effect upon it. Buyer and Sellers shall oppose any requests for
reconsideration or judicial review of the FCC Consent. If the Closing shall not
have occurred for any reason within the original effective period of the FCC
Consent, and neither party shall have terminated this Agreement under Section 9,
the parties shall jointly request an extension of the effective period of the
FCC Consent. No extension of the FCC Consent shall limit the exercise by either
party of its rights under Section 9.
6.2 CONTROL OF THE 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 Station programs, employees, and policies, shall
be the sole responsibility of Sellers until the Closing.
6.3 RISK OF LOSS.
(a) The risk of any loss, damage, impairment, confiscation, or
condemnation of any of the Assets from any cause whatsoever shall be borne by
Sellers at all times prior to the Closing.
(b) If any damage or destruction of the Assets or any other
event occurs which (i) causes the Station to cease broadcasting operations for a
period of seven or more days or (ii) prevents in any material respect signal
transmission by the Station in the normal
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and usual manner and Sellers fail to restore or replace the Assets so that the
Station's normal and usual transmission is resumed in all material respects
within twenty-one days of the damage, destruction or other event, Buyer, in its
sole discretion, may (x) terminate this Agreement forthwith without any further
obligations hereunder upon written notice to Sellers, or (y) proceed to
consummate the transaction contemplated by this Agreement and complete the
restoration and replacement of the Assets after the Closing Date, in which event
Sellers shall deliver to Buyer all insurance proceeds received in connection
with such damage, destruction or other event. In the event Buyer fails to notify
Sellers of its election to terminate this Agreement pursuant to this Section
6.3(b) and Section 9.2(d) within 10 days following the end of the periods
specified in clause (i) or clause (ii) of this Section 6.3(b), as the case may
be, Buyer shall be deemed to have elected to consummate the transaction
contemplated by this Agreement in accordance with clause (y) of this Section
6.3(b).
6.4 CONFIDENTIALITY. Except as necessary for the consummation of the
transaction contemplated by this Agreement, including Buyer's obtaining of
financing related hereto, and except as and to the extent required by law,
including, without limitation, disclosure requirements of federal or state
securities laws and the rules and regulations of securities markets, each party
will keep confidential any information obtained from the other party in
connection with the transactions contemplated by this Agreement. If this
Agreement is terminated, each party will return to the other party all
information obtained by such party from the other party in connection with the
transactions contemplated by this Agreement.
6.5 ENVIRONMENTAL AUDIT. Buyer may, at its option and expense, retain
an environmental consultant to be selected by Buyer to perform a Phase I
environmental survey of the properties of the Station, and such survey shall be
completed within 45 days from the date hereof. If the survey discloses any
material environmental hazard or material possibility of future liability for
environmental damages or clean-up costs, Buyer shall so notify Sellers no later
than 55 days from the date hereof.
6.6 ENGINEERING STUDY. Buyer may, at its option and expense, retain an
engineering firm to conduct a proof of performance study of the Station and to
prepare a report on the Station's compliance with customary engineering
practices and all applicable FCC rules, regulations, prescribed practices, and
technical standards, and such study and report shall be completed within 45 days
from the date hereof. If the survey discloses any material deficiencies in the
operations or equipment of the Station, Buyer shall so notify Sellers no later
than 55 days from the date hereof.
6.7 COOPERATION. Buyer and Sellers shall cooperate fully with each
other and their respective counsel and accountants in connection with any
actions required to be taken as part of their respective obligations under this
Agreement, and Buyer and Sellers shall execute such other documents as may be
necessary and desirable to the implementation and consummation of this
Agreement, and otherwise use their best efforts to consummate the
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transaction contemplated hereby and to fulfill their obligations under this
Agreement. Notwithstanding the foregoing, Buyer shall have no obligation (i) to
expend funds to obtain any of the Consents or (ii) to agree to any adverse
change in any License or Assumed Contract to obtain a Consent required with
respect thereto.
6.8 BULK SALES LAW. If applicable, the Bulk Sales law of the State of
Oregon shall be complied with by Sellers. Any loss, liability, obligation, or
cost suffered by Sellers or Buyer as the result of the failure of Sellers or
Buyer to comply with the provisions of any bulk sales law applicable to the
transfer of the Assets as contemplated by this Agreement shall be borne by
Sellers.
6.9 SALES TAX FILINGS. Sellers shall continue to file Oregon sales tax
returns with respect to the Station in accordance with Sellers' past practices
and shall concurrently deliver copies of all such returns to Buyer.
6.10 ACCESS TO BOOKS AND RECORDS. Sellers shall provide Buyer access
and the right to copy for a period of three years from the Closing Date any
books and records relating to the Assets that are not included in the Assets.
Buyer shall provide Sellers access and the right to copy for a period of three
years from the Closing Date any books and records relating to the Assets.
6.11 APPRAISAL. Buyer and Sellers agree to allocate the Purchase Price
for tax and recording purposes in accordance with an appraisal (the "Appraisal")
to be conducted by an appraisal firm selected and paid for by Buyer with
experience in the valuation and appraisal of television station assets. Buyer
shall deliver a copy of the Appraisal to Sellers on or before the date that is
90 days following the Closing Date.
6.12 HSR ACT FILING. Sellers and Buyer agree to (a) file, or cause to
be filed, with the U.S. Department of Justice ("DOJ") and Federal Trade
Commission ("FTC") all filings, if any, which are required in connection with
the transactions contemplated hereby under the HSR Act within ten (10) business
days of the date of this Agreement; (b) submit to the other party, prior to
filing, their respective HSR Act filings to be made hereunder, and to discuss
with the other any comments the reviewing party may have; (c) cooperate with
each other in connection with such HSR Act filings, which cooperation shall
include furnishing the other with any information or documents in such party's
possession that may be reasonably required in connection with such filings; (d)
promptly file, after any request by the FTC or DOJ and appropriate negotiation
with the FTC or DOJ of the scope of such request, any information or documents
requested by the FTC or DOJ; and (e) furnish each other with any correspondence
from or to, and notify each other of any other communications with, the FTC or
DOJ which relates to the transactions contemplated hereunder, and to the extent
practicable, to permit each other to participate in any conferences with the FTC
or DOJ.
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SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLERS
AT CLOSING
7.1 CONDITIONS TO OBLIGATIONS OF BUYER. All obligations of Buyer at the
Closing are subject at Buyer's option to the fulfillment prior to or at the
Closing Date of each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. All representations and
warranties of Sellers contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time.
(b) COVENANTS AND CONDITIONS. Sellers shall have performed and
complied in all material respects with all covenants, agreements, and conditions
required by this Agreement to be performed or complied with by them prior to or
on the Closing Date.
(c) CONSENTS. All Consents designated on Schedule 3.3 as
"Material Consents" shall have been obtained and delivered to Buyer without any
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 conditions that need not be complied with
by Buyer under Section 6.1 hereof, Sellers shall have complied with any
conditions imposed on them by the FCC Consent, and the FCC Consent shall have
become a Final Order.
(e) GOVERNMENTAL AUTHORIZATIONS. Sellers shall be the holder
of all Licenses and, other than as a result of any decision or order issued in
connection with the FCC rulemaking identified as IN THE MATTER OF ADVANCED
TELEVISION SYSTEMS, MM Docket No. 87-268, and any subsequent FCC or court
proceeding relating to such rulemaking (the "ATV RULEMAKING"), there shall not
have been any modification of any License that could have a material adverse
effect on the Station or the conduct of their business and operations. Other
than the proceedings involved in the ATV RULEMAKING, no proceeding shall be
pending or threatened the effect of which could be to revoke, cancel, fail to
renew, suspend, or modify in any materially adverse respect any FCC License.
(f) DELIVERIES. Sellers shall have made or stand willing to
make all the deliveries to Buyer set forth in Section 8.2.
(g) ADVERSE CHANGE. Between the date of this Agreement and the
Closing Date, there shall have been no material adverse change in the Tangible
Personal Property, including any materially adverse damage, destruction, or loss
affecting the Tangible Personal Property.
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(h) HSR ACT. The waiting period under the HSR Act shall have
expired without unresolved action by the DOJ or the FTC to prevent the Closing.
(i) SKTV CONSENT. SKTV, Inc. shall have (x) granted its
consent to the transactions contemplated by this Agreement and (y) irrevocably
waived any right or interest it has or may have in or with respect to the Assets
or the business or operations of the Station, and the Affiliation Agreement
between Sellers and Home Shopping Club, Inc. shall have been terminated, in each
case pursuant to an agreement or agreements in form and substance reasonably
acceptable to Buyer (the "SKTV Consent").
(j) WNGM CLOSING. The transactions contemplated by the Asset
Purchase Agreement dated as of March 19, 1998, among Xxxxxx Communications of
Atlanta-14, Inc., SKMD Broadcasting Partnership, and Silver King Broadcasting of
Maryland, Inc., shall have been consummated in accordance with terms set forth
therein.
7.2 CONDITIONS TO OBLIGATIONS OF SELLERS. All obligations of Sellers at
the Closing are subject at Sellers' option to the fulfillment prior to or at the
Closing Date of each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. All representations and
warranties of Buyer contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time.
(b) COVENANTS AND CONDITIONS. Buyer shall have performed and
complied in all material respects with all covenants, agreements, and conditions
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date.
(c) DELIVERIES. Buyer shall have made or stand willing to make
all the deliveries set forth in Section 8.3.
(d) FCC CONSENT. The FCC Consent shall have been granted
without the imposition on Sellers of any conditions that need not be complied
with by Sellers under Section 6.1 hereof, and Buyer shall have complied with any
conditions imposed on it by the FCC Consent.
(e) HSR ACT. The waiting period under the HSR Act shall have
expired without unresolved action by the DOJ or the FTC to prevent the Closing.
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SECTION 8. CLOSING AND CLOSING DELIVERIES
8.1 CLOSING.
(a) CLOSING DATE. The Closing shall take place at 10:00 a.m.
on a date, to be set by Buyer on at least five days' written notice to Sellers,
that is (1) not earlier than the first business day after the FCC Consent is
granted, and (2) not later than ten business days following the date upon which
the FCC Consent has become a Final Order, subject to satisfaction or waiver of
all other conditions precedent to the holding of the Closing. If Buyer fails to
specify the date for Closing prior to the fifth business day after the date upon
which the FCC Consent becomes a Final Order, the Closing shall take place on the
tenth business day after the date upon which the FCC Consent becomes a Final
Order.
(b) CLOSING PLACE. The Closing shall be held at the offices of
Dow, Xxxxxx & Xxxxxxxxx, 0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx,
X.X. 00000, or any other place that is agreed upon by Buyer and Sellers.
8.2 DELIVERIES BY SELLERS. Prior to or on the Closing Date, Sellers
shall deliver to Buyer the following, in form and substance reasonably
satisfactory to Buyer and its counsel:
(a) TRANSFER DOCUMENTS. Duly executed motor vehicle titles,
assignments, and other transfer documents which shall be sufficient to vest good
and marketable title to the Assets in the name of Buyer, free and clear of all
claims, liabilities, security interests, mortgages, liens, pledges, conditions,
charges or encumbrances, except for liens for current taxes not yet due and
payable;
(b) ESTOPPEL CERTIFICATES. Estoppel certificates of the
lessors of all leasehold interests included in the Real Property if and to the
extent Sellers obtain such estoppel certificates in accordance with Section
5.12;
(c) CONSENTS. A manually executed copy of any instrument
evidencing receipt of any Consent obtained by Sellers pursuant to Section 5.12;
(d) OFFICER'S CERTIFICATE. A certificate, dated as of the
Closing Date, executed on behalf of Sellers by an officer of Sellers, certifying
(1) that the representations and warranties of Sellers contained in this
Agreement are true and complete in all material respects as of the Closing Date
as though made on and as of that date; and (2) that Sellers have in all material
respects performed and complied with all of their obligations, covenants, and
agreements set forth in this Agreement to be performed and complied with on or
prior to the Closing Date;
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(e) LICENSES, CONTRACTS, BUSINESS RECORDS, ETC. Copies of all
Licenses, Assumed Contracts, blueprints, schematics, working drawings, plans,
projections, engineering records, and all files and records used by Sellers in
connection with their operations;
(f) OPINION OF COUNSEL. An Opinion of Sellers' counsel dated
as of the Closing Date, substantially in the form of Schedule 8.2(f) hereto;
(g) LENDERS CERTIFICATES. Such certificates and confirmations
to Buyer's senior lenders executed by Sellers as Buyer may reasonably request in
connection with obtaining financing for the performance of its payment
obligations hereunder.
8.3 DELIVERIES BY BUYER. Prior to or on the Closing Date, Buyer shall
deliver to Sellers the following, in form and substance reasonably satisfactory
to Sellers and their counsel:
(a) PURCHASE PRICE. The Purchase Price as provided in Section
2.3;
(b) ASSUMPTION AGREEMENTS. Appropriate assumption agreements
pursuant to which Buyer shall assume and undertake to perform Sellers'
obligations under the Licenses and Assumed Contracts insofar as they relate to
the time on and after the Closing Date and arise out of events related to
Buyer's ownership of the Assets or its operation of the Station on or after the
Closing Date;
(c) OFFICER'S CERTIFICATE. A certificate, dated as of the
Closing Date, executed on behalf of Buyer by an officer of Buyer, certifying (1)
that the representations and warranties of Buyer contained in this Agreement are
true and complete in all material respects as of the Closing Date as though made
on and as of that date, and (2) that Buyer has in all material respects
performed and complied with all of its obligations, covenants, and agreements
set forth in this Agreement to be performed and complied with on or prior to the
Closing Date;
(d) OPINION OF COUNSEL. An opinion of Buyer's counsel dated as
of the Closing Date, substantially in the form of Schedule 8.3(d) hereto.
SECTION 9. TERMINATION
9.1 TERMINATION BY SELLERS. This Agreement may be terminated by Sellers
and the purchase and sale of the Station abandoned, if Sellers are not then in
material default, upon written notice to Buyer, upon the occurrence of any of
the following:
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(a) CONDITIONS. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of Sellers set
forth in this Agreement have not been satisfied or waived in writing by Sellers.
(b) JUDGMENTS. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that would
prevent or make unlawful the Closing, and any such judgment, decree or order is
not the result of any action or omission by Sellers.
(c) UPSET DATE. If the Closing shall not have occurred by
March 19, 1999.
(d) BREACH. Without limiting Sellers' 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 thirty days after Buyer received written notice of such breach from
Sellers.
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 Sellers, upon the occurrence of any of the
following:
(a) CONDITIONS. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of Buyer set
forth in this Agreement have not been satisfied or waived in writing by Buyer.
(b) JUDGMENTS. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that would
prevent or make unlawful the Closing, and any such judgment, decree or order is
not the result of any action or omission by Buyer.
(c) UPSET DATE. If the Closing shall not have occurred by
March 19, 1999.
(d) INTERRUPTION OF SERVICE. If any damage or destruction of
the Assets or any other event occurs that causes the Station to cease
broadcasting operations or prevents signal transmission by the Station in the
normal and usual manner, in each case for the periods specified in Section
6.3(b).
(e) ENVIRONMENTAL HAZARDS. Buyer shall have notified Sellers
of material environmental hazards or the material possibility of environmental
damages or clean-up costs, as indicated in the environmental study described in
Section 6.5, within the period specified in Section 6.5, and the cause thereof
shall not have been remedied within 30 days from the date such notice is
received by Sellers.
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(f) TECHNICAL DEFICIENCIES. Buyer shall have notified Sellers
of material deficiencies in the operations or equipment of the Station, as
indicated in the engineering study described in Section 6.6, within the period
specified in Section 6.6, and the cause thereof shall not have been remedied
within 30 days from the date such notice is received by Sellers.
(g) BREACH. Without limiting Buyer's rights under the other
provisions of this Section 9.2, if Sellers have failed to cure any material
breach of any of their representations, warranties or covenants under this
Agreement within thirty days after Sellers received written notice of such
breach from Buyer.
9.3 RIGHTS ON TERMINATION. If this Agreement is terminated pursuant to
Section 9.1 or Section 9.2 and neither party is in material breach of this
Agreement, the parties hereto shall not have any further liability to each other
with respect to the purchase and sale of the Assets. If this Agreement is
terminated by Sellers due to Buyer's material breach of this Agreement, then
Sellers shall have all rights or remedies available at law or equity. If this
Agreement is terminated by Buyer due to Sellers' material breach of this
Agreement, Buyer shall have all rights and remedies available at law or equity.
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES
10.1 REPRESENTATIONS AND WARRANTIES. All representations and warranties
contained in this Agreement shall be deemed continuing representations and
warranties and shall survive the Closing for a period of nine months. Any
investigations by or on behalf of any party hereto shall not constitute a waiver
as to enforcement of any representation, warranty, or covenant contained in this
Agreement. No notice or information delivered by Sellers shall affect Buyer's
right to rely on any representation or warranty made by Sellers or relieve
Sellers of any obligations under this Agreement as the result of a breach of any
of their representations and warranties.
10.2 INDEMNIFICATION BY SELLERS. Notwithstanding the Closing, and
regardless of any investigation made at any time by or on behalf of Buyer or any
information Buyer may have, Sellers hereby agrees to indemnify and hold Buyer
harmless against and with respect to, and shall reimburse Buyer for:
(a) Any and all losses, liabilities, or damages resulting from
any untrue representation, breach of warranty, or nonfulfillment of any covenant
by Sellers contained in this Agreement or in any certificate, document, or
instrument delivered to Buyer under this Agreement.
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(b) Any and all obligations of Sellers not assumed by Buyer
pursuant to this Agreement, including any liabilities arising at any time under
any Contract not included in the Assumed Contracts.
(c) Any loss, liability, obligation, or cost resulting from
the failure of the parties to comply with the provisions of any bulk sales law
applicable to the transfer of the Assets.
(d) Any and all losses, liabilities, or damages resulting from
the operation or ownership of the Station prior to the Closing, including any
liabilities arising under the Licenses or the Assumed Contracts which relate to
events occurring prior the Closing Date.
(e) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
10.3 INDEMNIFICATION BY BUYER. Notwithstanding the Closing, and
regardless of any investigation made at any time by or on behalf of Sellers or
any information Sellers may have, Buyer hereby agrees to indemnify and hold
Sellers harmless against and with respect to, and shall reimburse Sellers for:
(a) Any and all losses, liabilities, or damages resulting from
any untrue representation, breach of warranty, or nonfulfillment of any covenant
by Buyer contained in this Agreement or in any certificate, document, or
instrument delivered to Sellers under this Agreement.
(b) Any and all obligations of Sellers assumed by Buyer
pursuant to this Agreement.
(c) Any and all losses, liabilities, or damages resulting from
the operation or ownership 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:
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(a) The party claiming indemnification (the "Claimant") shall
promptly give notice to the party from which indemnification is claimed (the
"Indemnifying Party") of any claim, whether between the parties or brought by a
third party, specifying in reasonable detail the factual basis for the claim. If
the claim relates to an action, suit, or proceeding filed by a third party
against Claimant, such notice shall be given by Claimant within five days after
written notice of such action, suit, or proceeding was received by Claimant.
(b) With respect to claims solely between the parties,
following receipt of notice from the Claimant of a claim, the Indemnifying Party
shall have thirty days to make such investigation of the claim as the
Indemnifying Party deems necessary or desirable. For the purposes of such
investigation, the Claimant agrees to make available to the Indemnifying Party
and/or its authorized representatives the information relied upon by the
Claimant to substantiate the claim. If the Claimant and the Indemnifying Party
agree at or prior to the expiration of the thirty-day period (or any mutually
agreed upon extension thereof) to the validity and amount of such claim, the
Indemnifying Party shall immediately pay to the Claimant the full amount of the
claim. If the Claimant and the Indemnifying Party do not agree within the
thirty-day period (or any mutually agreed upon extension thereof), the Claimant
may seek appropriate remedy at law or equity or under the arbitration provisions
of this Agreement, as applicable.
(c) With respect to any claim by a third party as to which the
Claimant is entitled to indemnification under this Agreement, the Indemnifying
Party shall have the right at its own expense, to participate in or assume
control of the defense of such claim, and the Claimant shall cooperate fully
with the Indemnifying Party, subject to reimbursement for actual out-of-pocket
expenses incurred by the Claimant as the result of a request by the Indemnifying
Party. If the Indemnifying Party elects to assume control of the defense of any
third-party claim, the Claimant shall have the right to participate in the
defense of such claim at its own expense. If the Indemnifying Party does not
elect to assume control or otherwise participate in the defense of any third
party claim, it shall be bound by the results obtained by the Claimant with
respect to such claim.
(d) If a claim, whether between the parties or by a third
party, requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
(e) The indemnifications rights provided in Sections 10.2 and
10.3 shall extend to the shareholders, directors, officers, employees, and
representatives of any Claimant although for the purpose of the procedures set
forth in this Section 10.4, any indemnification claims by such parties shall be
made by and through the Claimant.
10.5 LIMITATIONS ON INDEMNIFICATION. Sellers' and Buyer's obligations
to indemnify the other pursuant to this Section 10 shall be subject to the
following limitations:
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(a) No indemnification shall be required to be made under
Section 10.2 or Section 10.3 (i) until the aggregate amount of losses,
liabilities, damages or expenses incurred by Buyer or Sellers, as the case may
be, exceeds $25,000, and then the indemnification shall be made by the
Indemnifying Party only to the extent of such excess over $25,000 and (ii) in an
amount in excess of $500,000; and
(b) No indemnification shall be required to be made under
Section 10.2 (a) or Section 10.3(a) if the written notice of any claim for
indemnification is received by the Indemnifying Party following the expiration
of the period specified in Section 10.1; provided, however, that the expiration
of the period specified in Section 10.1 shall not affect the validity of any
claim made prior to such expiration.
10.6 SPECIFIC PERFORMANCE. The parties recognize that if Sellers breach
this Agreement and refuse to perform under the provisions of this Agreement,
monetary damages alone would not be adequate to compensate Buyer for its injury.
Buyer shall therefore be entitled, in addition to any other remedies that may be
available, including money damages, to obtain specific performance of the terms
of this Agreement. If any action is brought by Buyer to enforce this Agreement,
Sellers shall waive the defense that there is an adequate remedy at law.
10.7 ATTORNEYS' FEES. In the event of a default by either party which
results in a lawsuit or other proceeding for any remedy available under this
Agreement, the prevailing party shall be entitled to reimbursement from the
other party of its reasonable legal fees and expenses.
SECTION 11. MISCELLANEOUS
11.1 FEES AND EXPENSES. Any federal, state, or local sales or transfer
tax arising in connection with the conveyance of the Assets by Sellers to Buyer
pursuant to this Agreement shall be paid by Sellers. Buyer and Sellers shall
each pay one-half of all filing fees required by the FTC under the HSR Act, and
all filing fees required by the FCC in connection with the FCC Consent. Except
as otherwise provided in this Agreement, each party shall pay its own expenses
incurred in connection with the authorization, preparation, execution, and
performance of this Agreement, including all fees and expenses of counsel,
accountants, agents, and representatives. Each party shall be responsible for
all fees or commissions payable to any finder, broker, advisor, or similar
person retained by or on behalf of such party.
11.2 ARBITRATION. Except as otherwise provided to the contrary below,
any dispute arising out of or related to this Agreement that Sellers and Buyer
are unable to resolve by themselves shall be settled by arbitration by a panel
of three (3) neutral arbitrators who shall be selected in accordance with the
procedures set forth in the commercial arbitration rules of
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the American Arbitration Association. The persons selected as arbitrators shall
have prior experience in the broadcasting industry but need not be professional
arbitrators, and persons such as lawyers, accountants, brokers and bankers shall
be acceptable. Before undertaking to resolve the dispute, each arbitrator shall
be duly sworn faithfully and fairly to hear and examine the matters in
controversy and to make a just award according to the best of his or her
understanding. The arbitration hearing shall be conducted in accordance with the
commercial arbitration rules of the American Arbitration Association in
Washington, D.C. The written decision of a majority of the arbitrators shall be
final and binding on Sellers and Buyer. The costs and expenses of the
arbitration proceeding shall be assessed between Sellers and Buyer in a manner
to be decided by a majority of the arbitrators, and the assessment shall be set
forth in the decision and award of the arbitrators. Judgment on the award, if it
is not paid within thirty days, may be entered in any court having jurisdiction
over the matter. No action at law or suit in equity based upon any claim arising
out of or related to this Agreement shall be instituted in any court by Sellers
or Buyer against the other except (i) an action to compel arbitration pursuant
to this Section, (ii) an action to enforce the award of the arbitration panel
rendered in accordance with this Section, or (iii) a suit for specific
performance pursuant to Section 10.5.
11.3 NOTICES. All notices, demands, and requests required or permitted
to be given under the provisions of this Agreement shall be (a) in writing, (b)
delivered by personal delivery, or sent by commercial delivery service or
registered or certified mail, return receipt requested, (c) deemed to have been
given on the date of personal delivery or the date set forth in the records of
the delivery service or on the return receipt, and (d) addressed as follows:
If to Sellers: Blackstar Communications of Oregon, Inc.
Blackstar of Salem, Inc.
0000 Xxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xx. Xxxx X. Xxxxxxxx
Telephone: (000) 000-0000
With a copy to: Xxxx X. Xxxxxxxx, Esquire
Xxxxx, Xxxxxxxx & Tannenwald, P.C.
0000 Xxxxx Xxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
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If to Buyer: Xxxxxx Communications of Portland-22, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
With a copy to: Xxxx X. Xxxxx, Xx., Esquire
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
or to any other or additional persons and addresses as the parties may from time
to time designate in a writing delivered in accordance with this Section 11.3.
11.4 BENEFIT AND BINDING EFFECT. Neither party hereto may assign this
Agreement without the prior written consent of the other party hereto; provided,
however, that Buyer may assign its rights and obligations under this Agreement,
in whole or in part, to one or more subsidiaries or commonly controlled
affiliates of Buyer without seeking or obtaining Sellers' prior approval in
which event Buyer shall have no further obligation hereunder and Buyer may
collaterally assign its rights and interests hereunder to its senior lenders
without seeking or obtaining Sellers' prior approval. Upon any permitted
assignment by Buyer or Sellers in accordance with this Section 11.4, all
references to "Buyer" herein shall be deemed to be references to Buyer's
assignee and all references to "Sellers" herein shall be deemed to be references
to Sellers' assignee, as the case may be. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
11.5 FURTHER ASSURANCES. The parties shall take any actions and execute
any other documents that may be necessary or desirable to the implementation and
consummation of this Agreement, including, in the case of Sellers, any
additional bills of sale, deeds, or other transfer documents that, in the
reasonable opinion of Buyer, may be necessary to ensure, complete, and evidence
the full and effective transfer of the Assets to Buyer pursuant to this
Agreement.
11.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED, AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT REGARD TO
THE CHOICE OF LAW PROVISIONS THEREOF).
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11.7 HEADINGS. The headings in this Agreement are included for ease of
reference only and shall not control or affect the meaning or construction of
the provisions of this Agreement.
11.8 GENDER AND NUMBER. Words used in this Agreement, regardless of the
gender and number specifically used, shall be deemed and construed to include
any other gender, masculine, feminine, or neuter, and any other number, singular
or plural, as the context requires.
11.9 ENTIRE AGREEMENT. This Agreement, the schedules, hereto, and all
documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between Buyer and Sellers with respect to the subject matter hereof. This
Agreement supersedes the letter of intent dated February 3, 1998, between Xxxxxx
Communications Corporation and Blackstar Communications, Inc. and all prior
negotiations between the parties and cannot be amended, supplemented, or changed
except by an agreement in writing that makes specific reference to this
Agreement and which is signed by the party against which enforcement of any such
amendment, supplement, or modification is sought.
11.10 WAIVER OF COMPLIANCE; CONSENTS. Except as otherwise provided in
this Agreement, any failure of any of the parties to comply with any obligation,
representation, warranty, covenant, agreement, or condition herein may be waived
by the party entitled to the benefits thereof only by a written instrument
signed by the party granting such waiver, but such waiver or failure to insist
upon strict compliance with such obligation, representation, warranty, covenant,
agreement, or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires or
permits consent by or on behalf of any party hereto, such consent shall be given
in writing in a manner consistent with the requirements for a waiver of
compliance as set forth in this Section 11.10.
11.11 PRESS RELEASE. Neither party shall publish any press release,
make any other public announcement or otherwise communicate with any news media
concerning this Agreement or the transactions contemplated hereby without the
prior written consent of the other party; provided, however, that nothing
contained herein shall prevent either party from promptly making all filings
with governmental authorities as may, in its judgement be required or advisable
in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
11.12 COUNTERPARTS. This Agreement may be signed in counterparts with
the same effect as if the signature on each counterpart were upon the same
instrument.
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11.13 GUARANTY OF PCC.
(a) In consideration of the execution and delivery of this
Agreement by Sellers, PCC agrees as follows:
(1) PCC hereby guarantees the complete and timely
performance in all material respects of each and every obligation of Buyer under
this Agreement. If any default shall be made by Buyer in such performance, then
PCC will itself perform or cause to be performed such obligation upon receipt of
notice from Sellers specifying in summary form the default.
(2) PCC waives presentment, protest, demand, or
action or delinquency in respect of any of the obligations of Buyer under this
Agreement. PCC waives all notices of nonperformance, notices of protest, notices
of dishonor, and notices of acceptance of this guaranty.
(3) This guaranty shall be deemed a continuing
guaranty, and the above consents and waivers of PCC shall remain in full force
and effect until the satisfaction in full of all obligations of Buyer under this
Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
XXXXXX COMMUNICATIONS
CORPORATION HEREBY JOINS IN THE
EXECUTION OF THE FOREGOING ASSET
PURCHASE AGREEMENT TO AGREE TO
THE PROVISIONS OF SECTION 11.13.
XXXXXX COMMUNICATIONS OF XXXXXX COMMUNICATIONS
OF PORTLAND-22, INC. CORPORATION
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXX X. XXXXXX
----------------------- --------------------------
Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxx
Chairman Chairman
BLACKSTAR COMMUNICATIONS OF BLACKSTAR OF SALEM, INC.
OREGON, INC.
By: /s/ XXXX X. XXXXXXXX By: /s/ XXXX X. XXXXXXXX
----------------------------- ------------------------
Xxxx X. Xxxxxxxx Xxxx X. Xxxxxxxx
Chairman Chairman
