Exhibit 10.10
ASSET PURCHASE AGREEMENT
BETWEEN
AND
AMONG
[XXXXXX XXXXX]
AS SELLER
AND
HISPANIC TELEVISION NETWORK, INC.
AS BUYER
Dated as of December 15, 1999
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("AGREEMENT") is made and entered into as of
December 15, 1999, between and among [XXXXXX XXXXX, an INDIVIDUAL ] ("SELLER"),
and HISPANIC TELEVISION VENTURES, INC., a Delaware corporation ("BUYER").
Background
This Agreement provides for the sale by Seller to Buyer of certain assets,
real, personal and mixed, tangible and intangible, owned by Seller and
associated with or employed in the operations of [10] television stations
located in Del Rio, Texas; San Antonio, Texas; Corpus Christi, Texas; Phoenix,
Arizona; Oklahoma City, Oklahoma; McAllen, Texas; Tulsa, Oklahoma; Uvalde,
Texas; Carrizo Springs, Texas; and Clovis, New Mexico (the "STATIONS"),
including, without limitation, all buildings and all real property, whether
developed or undeveloped, associated with the Stations, but specifically
excluding the Excluded Assets as hereinafter defined and provided. The Stations
are described more fully in Schedule 1 attached hereto and made a part hereof.
In consideration of the agreements, covenants, representations and
warranties hereinafter set forth, and other good and valuable consideration, the
receipt and adequacy of all of which are forever acknowledged and confessed, the
parties hereto agree as follows:
1. SALE OF ASSETS AND CERTAIN RELATED MATTERS.
1.1 SALE OF ASSETS. Subject to the terms and conditions of this
Agreement, Seller agrees to sell, convey, transfer and deliver to Buyer and
Buyer agrees to purchase as of Closing, as hereinafter defined, all assets,
real, personal and mixed, tangible and intangible, owned by Seller and
associated with or employed in the operations of the Stations (whether owned by
Seller or one or more of its affiliates), including, without limitation, the
following items (collectively, the "ASSETS"):
(a) Fee title to all real property together with all
improvements, buildings and fixtures located thereon or therein (collectively,
the "REAL PROPERTY");
(b) All major, minor or other equipment (including without
limitation, all computers and all data processing, software and source codes),
vehicles, furniture and furnishings;
(c) All usable supplies and inventory;
(d) Prepaid expenses, claims for refunds and rights to
offset;
(e) All notes and accounts receivable, whether recorded
or unrecorded or assigned for collection;
(f) All claims, recorded or unrecorded interests in real
property, choses in action and judgments in favor of Seller;
(g) All partnership and joint venture interests, whether
as a general partner or a limited partner;
(h) All financial and personnel records (including, without
limitation, all accounts receivable records, equipment records, administrative
libraries, billing records, documents, catalogs, books, records, files,
operating manuals and current personnel records);
(i) All of Seller's interest in all commitments, contracts,
leases and agreements outstanding in respect of the Assets which Buyer elects to
assume in writing (collectively, the "CONTRACTS");
(j) All licenses and permits, to the extent assignable, held
by Seller relating to the ownership, development and operations of the Stations
(including, without limitation, any pending or approved governmental approvals
regarding the Stations);
(k) All patents and patent applications and all names, trade
names, trademarks and service marks (or variations thereof) associated with the
Stations; and
(l) Seller's interest in all property, real, personal and
mixed, tangible and intangible, arising or acquired in the ordinary course of
Seller's business in respect of the Stations between the effective date hereof
and Closing.
Seller shall convey good and marketable title to the Assets and all parts
thereof to Buyer free and clear of all agreements, liabilities, claims,
assessments, security interests, liens, restrictions and encumbrances, except as
expressly provided herein to the contrary.
1.2 EXCLUDED ASSETS. The following items (the "EXCLUDED Assets"),
which are related to the Assets, are not intended by the parties to be a part of
the sale and purchase contemplated hereunder and are excluded from the Assets:
(a) Restricted and unrestricted cash and cash
equivalents; and
(b) Any records which by law Seller is required to retain
in its possession.
All other assets of Seller associated with or employed in the operation of the
Stations, whether or not scheduled or described herein, are included in the
Assets to be conveyed to Buyer pursuant to this Agreement.
1.3 ASSUMED LIABILITIES. As of Closing, Buyer agrees to assume the
future payment and performance of the following items (collectively, the
"ASSUMED LIABILITIES"):
(a) The Contracts; and
(b) Such other liabilities of Seller which Buyer elects
to assume in writing.
Buyer shall not be liable for, and Seller shall indemnify and hold Buyer and the
Assets harmless from and against, any asserted liability relating to (i)
Seller's assignment and Buyer's assumption of the Assumed Liabilities, (ii)
uncured defaults in performance of the Assumed Liabilities for periods prior to
December 31, 1999, (iii) unpaid amounts in respect of the Assumed Liabilities
that are past due as of December 31, 1999 and/or (iv) rights or remedies claimed
by third parties against Buyer which broaden or vary the rights and remedies
such third parties would have had against Seller if the sale and purchase of the
Assets were not to occur.
1.4 EXCLUDED LIABILITIES. Except as expressly provided to the
contrary in Section 1.3 above, under no circumstance shall Buyer be obligated to
pay or assume, and none of the Assets shall be or become liable for or subject
to, any liability of Seller, whether fixed or contingent, recorded or unrecorded
(collectively, the "EXCLUDED LIABILITIES").
1.5 PURCHASE PRICE. Subject to the terms and conditions hereof, in
reliance upon the representations and warranties of Seller herein set forth and
as consideration for the sale and purchase of the Assets as herein contemplated,
Buyer agrees to tender to Seller at Closing as the purchase price hereunder (the
"PURCHASE PRICE"), and in the manner hereinafter provided, the total amount of
[Ten Million Dollars ($10,000,000)]. The Purchase Price shall be due and payable
at Closing as follows:
(a) Buyer shall tender to Seller in cash an amount equal to
the Purchase Price less Three Million Dollars ($3,000,000).
(b) Buyer shall deliver to Seller _____________ shares of
Buyer's common stock registered in the name of Seller (the "Shares"), the Shares
having a current value of Three Million Dollars ($3,000,000) based upon the
average of the high "bid" and the low "asked" price of Buyer's common stock on
December ___31ST_, 1999.
1.6 CASH DEPOSIT AND LMA FEE. Buyer has tendered to Seller the
amount of Fifty Thousand Dollars ($50,000.00) as a cash deposit (the "CASH
DEPOSIT"). On or before December 31, 1999, Buyer will tender to Seller the
amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) to serve as
a license management agreement fee ("LMA FEE"). The LMA Fee shall entitle Buyer
to (i) full and complete operational access to and (ii) all revenue generated by
all of the Stations commencing on the date of payment of the LMA Fee to Seller
and continuing until Closing or for a period not to exceed twenty-four (24)
months from the date of this Agreement. Seller and Buyer will enter into a
License Management Agreement substantially in the form of EXHIBIT A attached
hereto and made a part hereof with respect to each of the Stations to evidence
Buyer's rights in respect of the Stations pending the Closing or during such
twenty-four (24) month period. Upon Closing, the Cash Deposit and the LMA Fee
shall be credited against the cash portion of the Purchase Price due and payable
by Buyer. In the event Closing does not occur as a result of Seller's breach of
this Agreement, Seller shall immediately refund the Cash Deposit and the LMA Fee
to Buyer, without limiting any remedies available to Buyer at law or in equity.
2. CLOSING.
2.1 CLOSING. Subject to the satisfaction or waiver by the
appropriate party of all of the conditions precedent to Closing specified in
Sections 7 and 8 hereof, the consummation of the sale and purchase of the Assets
and the other transactions contemplated by and described in this Agreement (the
"Closing") shall take place at the offices of Buyer at 10:00 a.m. local time on
or before December 15, 2001, or at such later date and/or at such other location
as the parties hereto may mutually designate in writing (the "Closing Date").
2.2 ACTIONS OF SELLER AT CLOSING. At the Closing and unless
otherwise waived in writing by Buyer, Seller shall deliver to Buyer the
following:
(a) Deeds containing general warranty of title, fully executed
by Seller in recordable form, conveying to Buyer good and marketable fee title
to the Real Property, subject only to the liens and encumbrances permitted
herein;
(b) A General Xxxx of Sale and Assignment, fully executed by
Seller, conveying to Buyer good and marketable title to all the Assets other
than the Real Property;
(c) An Assignment of Leases and Contracts, fully executed
by Seller, conveying to Buyer Seller's interest in the Contracts;
(d) An Owner's Policy of Title Insurance covering the
Real Property;
(e) Copies of resolutions duly adopted by the Board of
Directors and shareholders of Seller authorizing and approving the performance
of the transactions contemplated hereby and the execution and delivery of this
Agreement and the documents described herein, certified as true and of full
force as of Closing, by the appropriate officers of Seller;
(f) Certificates of the President or a Vice President of
Seller certifying that as of Closing all of the representations and warranties
made by or on behalf of Seller contained in this Agreement are true and correct
in all respects and that each covenant and agreement of Seller to be performed
prior to or as of Closing pursuant to this Agreement has been performed;
(g) Certificates of incumbency for the officers of Seller
executing this Agreement and the documents described herein or making
certifications for Closing, dated as of Closing;
(h) Certificates of existence and good standing of Seller from
the State in which it is incorporated, dated the most recent practical date
prior to Closing;
(i) An investment undertaking of Seller in respect of the
Shares, substantially in the form of Exhibit B attached hereto and made a part
hereof; and
(j) Such other instruments and documents, including, without
limitation, third party consents and estoppel certificates, as Buyer reasonably
deems necessary to effect the transactions contemplated hereby and to place
Buyer in legal and operational possession of the Assets.
2.3 ACTIONS OF BUYER AT CLOSING. At the Closing and unless otherwise
waived in writing by Seller, Buyer shall deliver to Seller the following:
(a) An amount equal to the cash portion of the Purchase Price
in same day funds reduced by the amount of the Cash Deposit and the LMA Fee;
(b) A valid certificate representing the Shares;
(c) Copies of resolutions duly adopted by the Board of
Directors of Buyer authorizing and approving the performance of the transactions
contemplated hereby and the execution and delivery of this Agreement and the
documents described herein, certified as true and of full force as of Closing,
by the appropriate officers of Buyer;
(d) Certificates of the President or a Vice-President of Buyer
certifying that as of Closing all of the representations and warranties made by
or on behalf of Buyer contained in this Agreement are true and correct in all
respects and that each covenant and agreement of Buyer to be performed prior to
or as of Closing pursuant to this Agreement has been performed;
(e) Certificates of incumbency for the officers of Buyer
executing this Agreement or making certifications for Closing, dated as of
Closing;
(f) A certificate of existence and good standing of Buyer from
the state of its organization, dated the most recent practical date prior to
Closing;
(g) Such other instruments and documents as Seller reasonably
deems necessary to effect the transactions contemplated hereby.
2.4 ADDITIONAL ACTS. From time to time after Closing, Seller shall
execute and deliver such other instruments of conveyance and transfer, and take
such other actions as Buyer reasonably may request, to more effectively convey
and transfer full right, title and interest to, vest in, and place Buyer in
legal and actual possession of, any and all of the Assets. In the case of
Contracts and rights which cannot be transferred effectively without the
consents of third parties, Seller shall use its best efforts to obtain such
consents promptly. Seller shall also furnish Buyer with such information and
documents in Seller's possession or under Seller's control, or which Seller can
execute or cause to be executed, as will enable Buyer to prosecute any and all
petitions, applications, claims and demands relating to or constituting a part
of the Assets. Additionally, Seller shall cooperate and use Seller's best
efforts to have Seller's present directors, officers, employees and shareholders
cooperate with Buyer on and after Closing in furnishing information, evidence,
testimony and other assistance in connection with any action, proceeding,
arrangement or dispute of any nature with respect to matters pertaining to all
periods prior to Closing in respect of the items subject to this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF SELLER.
As of the date hereof, Seller represents and warrants to Buyer the
following:
3.1 CORPORATE CAPACITY. Seller is a corporation, duly organized and
validly existing and in good standing under the laws of the State in which it is
incorporated. Seller has the requisite power and authority to enter into this
Agreement, perform its obligations hereunder and to conduct its business as now
being conducted and Seller is duly authorized, qualified and licensed under all
applicable laws, regulations, ordinances and orders of governmental authorities
having jurisdiction over the Assets and operations of the Stations to own its
properties and conduct its business in the place and in the manner now
conducted.
3.2 CORPORATE POWERS; CONSENTS; ABSENCE OF CONFLICTS WITH OTHER
AGREEMENTS, ETC. The execution, delivery and performance of this Agreement by
Seller and the consummation of the transactions contemplated herein by Seller:
(a) Are within Seller's corporate powers, are not in
contravention of law or of the terms of Seller's Articles of Incorporation,
Bylaws or any amendments thereto and have been duly authorized by all
appropriate corporate action;
(b) Except as otherwise expressly herein provided, do not
require any approval or consent of, or filing with, any governmental agency or
authority bearing on the validity of this Agreement which is required by law or
the regulations of any such agency or authority;
(c) Will neither conflict with nor result in any breach or
contravention of, nor permit the acceleration of the maturity of or the creation
of any lien under, any indenture, mortgage, agreement, lease, contract,
instrument or understanding to which Seller is a party or by which Seller or the
Assets are bound;
(d) Will not violate any statute, law, rule or regulation
of any governmental authority to which Seller or the Assets may be subject;
(e) Will not violate any judgment, decree, order, writ or
injunction of any court or governmental authority to which Seller or the Assets
may be subject; and
(f) Are and will constitute the valid and legally binding
obligations of Seller, enforceable in accordance with the terms of this
Agreement, except as enforceability may be restricted, limited or delayed by
applicable bankruptcy or other laws affecting creditors' rights generally and
except as enforceability may be subject to general principles of equity.
3.3 LICENSES. Seller has delivered to Buyer an accurate list and
summary description of all licenses and permits and of all other franchises,
certificates of need and certificate of need applications, trademarks, trade
names, patents, patent applications and copyrights, owned or held by Seller
relating to the ownership, development or operations of the Stations and the
Assets, all of which are now and as of Closing shall be valid, in good standing
and not subject to meritorious challenge.
3.4 REGULATORY COMPLIANCE. Seller is in full compliance with all
applicable rules, regulations and requirements of all federal, state and local
commissions, boards, bureaus and agencies having jurisdiction over the Stations
and the operations of the Stations, including, without limitation, the Internal
Revenue Service, Federal Communications Commission, and Seller has timely filed
all reports, data and other information required to be filed with such
commissions, boards, bureaus and agencies.
3.5 AGREEMENTS AND COMMITMENTS. Seller has delivered to Buyer an
accurate list and summary description of all material commitments, contracts,
leases and agreements which relate to, or may affect, the Stations, the Assets
or the operation thereof, to which Seller is a party or by which Seller or any
of the Assets are bound (including, without limitation, employment agreements,
contracts, tenant leases, equipment leases, equipment maintenance agreements,
agreements with municipalities and labor organizations, loan agreements, bonds,
mortgages, liens or other security agreements). Seller has delivered true and
correct copies of such agreements to Buyer. None of such agreements unduly
burdens or restricts the Stations in the ordinary course of their businesses.
All parties to such agreements have complied with all material commitments and
obligations thereunder, such agreements constitute the entire agreements by and
between the parties thereto relating to the subject matter thereof, and such
agreements are now in full force and effect.
3.6 REAL PROPERTY. Seller owns good and marketable fee title to the
Real Property, together with all buildings, improvements and fixtures thereon
and all appurtenances and rights thereto, free and clear of all mortgages,
liens, restrictions, agreements, claims and other encumbrances, except for such
encumbrances or defects in title which will not render title to the Real
Property unmarketable or uninsurable and which will not interfere with Buyer's
use of the Assets in a manner consistent with that of Seller, liens securing any
indebtedness assumed by Buyer, any lease obligations assumed by Buyer and
easements of record (the "PERMITTED ENCUMBRANCES"). The Real Property comprises
all of the real property owned or leased by Seller or otherwise associated with
the Stations.
3.7 LITIGATION OR PROCEEDINGS. Seller is not in default under any
law or regulation, or under any order of any court or federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality wherever located. There are no claims, actions, suits,
proceedings or investigationspending, threatened against or affecting Seller
with respect to the Stations or the Assets, at law or in equity, or before or by
any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality wherever located.
3.8 TAX LIABILITIES.
(a) All tax returns, including, without limitation, income tax
returns, employee payroll tax returns, employee unemployment tax returns and
franchise tax returns, for periods prior to and including Closing which are
required to be filed by Seller (collectively "RETURNS") have been filed or will
be filed within the time and in the manner provided by law (including any valid
extensions thereof), all Returns are or will be true and correct and accurately
reflect the tax liabilities of Seller and all Returns which have not been filed
prior to Closing will be consistent with those Returns filed prior to Closing;
(b) All taxes, penalties, interest, and any other statutory
additions which have become due by Seller pursuant to Returns, and any
assessments received by Seller have been paid or adequately provided for;
(c) There are no tax liens on any of the Assets; and
(d) There are no pending questions nor are there any issues
known to Seller, relating to, or claims or assessments for, taxes payable by
Seller. Proper and accurate amounts have been withheld by Seller from employees
of Seller for all periods in full and complete compliance with the tax and
otherwithholding provisions of all applicable laws.
3.9 FULL DISCLOSURE. This Agreement and Schedules hereto and all
other documents and information furnished to Buyer and Buyer's representatives
by Seller pursuant hereto do not and will not include any untrue statement of
material fact or omit to state any material fact necessary to make the
statements made and to be made not misleading.
4. REPRESENTATIONS AND WARRANTIES OF BUYER.
As of the date hereof, Buyer represents and warrants to Seller the
following:
4.1 CORPORATE CAPACITY. Buyer is a corporation, duly organized and
validly existing in good standing under the laws of the State of Delaware.
4.2 CORPORATE POWERS; CONSENTS; ABSENCE OF CONFLICTS WITH OTHER
AGREEMENTS, ETC. The execution, delivery and performance of this Agreement by
Buyer and the consummation of the transactions contemplated herein by Buyer:
(a) Are within Buyer's corporate powers and are not in
contravention of the terms of Buyer's Articles of Incorporation or Bylaws and
have been approved by all requisite corporate action;
(b) Will neither conflict with nor result in any breach or
contravention of, or the creation of any lien under, any indenture, agreement,
lease, instrument or understanding to which Buyer is a party of by which Buyer
is bound; and
(c) Are and will constitute the valid and legally binding
obligations of Buyer, enforceable in accordance with the terms of this
Agreement, except as enforceability may be restricted, limited or delayed by
applicable bankruptcy or other laws affecting creditors' rights generally and
except as enforceability may be subject to general principles of equity.
4.3 SEC FILINGS.
(a) Buyer has filed and made available to Seller all forms,
reports and documents required to be filed by Buyer with the Securities and
Exchange Commission ("SEC") since January 1, 1999 (collectively, the "BUYER'S
SEC REPORTS"). The Buyer's SEC Reports (i) at the time filed, complied in all
material respects with the applicable requirements of the Securities Act of
1933, as amended, and the Securities Exchange Act of 1934, as the case may be;
and (ii) did not at the time they were filed (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing)
contain any untrue statement of a material fact or omit to state a material fact
required to be stated in such Buyer's SEC Reports or necessary in order to make
the statements in which Buyer's SEC Reports, in the light of the circumstances
under which they were made, not misleading.
(b) Since the date of filing of the last Buyer's SEC Report,
there has not been any material adverse change in the assets, liabilities,
financial condition or results of operations of Buyer and its subsidiaries,
taken as a whole.
5. COVENANTS OF SELLER PRIOR TO CLOSING.
Between the date of this Agreement and the Closing Date:
5.1 INFORMATION. Seller shall afford to the officers and authorized
representatives and agents of Buyer full and complete access to and the right to
inspect the plants, properties, books and records of Seller and the Assets, and
will furnish Buyer with such additional financial and operating data and other
information as to the business and properties of Seller and the Assets as Buyer
may from time to time reasonably request without regard to where such
information may be located.
5.2 OPERATIONS. From the date hereof until the Closing Date,
Seller will:
(a) Cooperate with Buyer in the management and operation
of the Stations in accordance with the License Management Agreements; and
(b) Take all actions necessary and appropriate to render title
to the Assets free and clear of all liens, security agreements, claims, charges
and encumbrances (except for the Permitted Encumbrances) and obtain appropriate
releases, consents, estoppels and other instruments as Buyer may reasonably
request.
5.3 NEGATIVE COVENANTS. From the date hereof to the Closing Date,
Seller will not, without the prior written consent of Buyer:
(a) Amend or terminate any of the Contracts or enter into any
contract or commitment, or incur or agree to incur any liability with respect to
the Stations;
(b) Create, assume or permit to exist any new mortgage, pledge
or other lien or encumbrance upon any of the Assets, whether now owned or
hereafter acquired; and
(c) Acquire (whether by purchase or lease) or sell, assign,
lease or otherwise transfer or dispose of any property, plant or equipment
associated with or employed in the operations of the Stations.
5.4 GOVERNMENTAL APPROVALS. Seller shall assist and cooperate with
Buyer and Buyer's representatives and counsel in obtaining all governmental
consents, approvals and licenses which Buyer deems necessary or appropriate and
in the preparation of any document or other material which may be required by
any governmental agency as a predicate to or result of the transactions
contemplated herein.
5.5 NO-SHOP CLAUSE. From and after the date of the execution and
delivery of this Agreement by Seller, and for a period of ninety (90) days after
the termination of this Agreement, Seller will not, without the prior written
consent of Buyer: (i) offer for sale the Assets (or any material portion
thereof) or any ownership interest of any entity owning any of the Assets, (ii)
solicit offers to buy all or any material portion of the Assets or any ownership
interest of any entity owning any of the Assets, (iii) hold discussions with any
party (other than Buyer) looking toward such an offer or solicitation or looking
toward a merger or consolidation of any entity owning any of the Assets, or (iv)
enter into any agreement with any party (other than Buyer) with respect to the
sale or other disposition of the Assets (or any material portion thereof) or any
ownership interest in any entity owning any of the Assets or with respect to any
merger, consolidation, or similar transaction involving any entity owning any of
the Assets.
6. COVENANTS OF BUYER PRIOR TO CLOSING.
Between the date of this Agreement and the Closing Date:
6.1 GOVERNMENTAL APPROVALS. Buyer shall promptly make all required
applications, and file such notices as are necessary to obtain all licenses for
the operation of the Stations and shall use Buyer's reasonable efforts to
promptly obtain the approval of all local, state and federal authorities
necessary to allow Buyer to operate the Stations pursuant to the License
Management Agreements and subsequent to the Closing.
6.2 OPERATIONS. From December 31, 1999 until the Closing Date or the
expiration of twenty-four (24) months from the date of this Agreement, whichever
first occurs, Buyer will operate the Stations in accordance with the License
Management Agreements.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER.
The obligations of Buyer hereunder are, at the option of Buyer, subject to
the satisfaction, on or prior to the Closing Date, of the following conditions
unless waived in writing by Buyer:
7.1 REPRESENTATIONS/WARRANTIES. The representations and warranties
of Seller contained in this Agreement shall be true when made and on and as of
the Closing Date as though such representations and warranties had been made on
and as of such Closing Date; and each and all of the terms, covenants and
conditions of this Agreement to be complied with or performed by Seller on or
before the Closing Date pursuant to the terms hereof shall have been duly
complied with and performed.
7.2 DUE DILIGENCE. Buyer shall have completed Buyer's due diligence
in respect of Seller and the Assets prior to Closing and be fully satisfied with
the results thereof. In order to facilitate Buyer's due diligence, Seller will
provide Buyer and Buyer's representatives and agents with full and complete
access to the books, records and management staff of Seller and shall further
provide such written consents and authorizations as may be necessary for Buyer
to have access to materials on file with governmental agencies. Such due
diligence shall not have disclosed any previously unknown or undisclosed
material adverse circumstance or condition on the basis of which Buyer
reasonably and in good xxxxx xxxxx it inappropriate to proceed with the
transactions described herein.
7.3 PRE-CLOSING CONFIRMATIONS. Buyer shall have obtained
documentation or other evidence satisfactory to Buyer that Buyer has:
(a) Received approval from all governmental agencies
whose approval is required to complete the transactions herein contemplated;
(b) Received written confirmation from all applicable
licensure agencies that upon Closing all licenses required by law to operate the
Stations as currently operated will be transferred to, or reissued in the name
of Buyer; and
(c) Obtained such other consents and approvals as may be
legally or contractually required by Buyer's consummation of the transactions
described herein.
7.4 ACTION/PROCEEDING. No action or proceeding before a court or any
other governmental agency or body shall have been instituted or threatened to
restrain or prohibit the transactions herein contemplated, and no governmental
agency or body shall have taken any other action or made any request of Seller
or Buyer as a result of which Buyer deems it inadvisable to proceed with the
transactions hereunder.
7.5 VESTING/RECORDATION. Seller shall have furnished to Buyer in
form acceptable to Buyer and approved by Buyer's counsel, deeds, bills of sale,
assignments or other instruments of transfer and (except in minor instances)
consents and waivers by others, necessary or appropriate to transfer to
andeffectively vest in Buyer all right, title and interest in and to the Assets,
in proper statutory form for recording if such recording is necessary or
appropriate.
7.6 TITLE POLICY AND SURVEY. Buyer shall have received commitments,
satisfactory to Buyer, from a title insurance company mutually acceptable to
Seller and Buyer to issue as of the Closing Date an owner's title insurance
policy (with survey and zoning endorsements) for the Real Property, together
with improvements, buildings and fixtures thereon, in the customary form
prescribed for use in the State where the Real Property is located. The
commitment shall provide for the issuance of said policy to Buyer as of Closing
and shall insure good and marketable fee title to the Real Property in Buyer
subject only to (i) the lien of accrued taxes not yet due and payable, (ii)
liens, if any, which secure indebtedness of Seller assumed by Buyer or which are
created by Buyer, and (iii) such utility and similar easements as do not
materially adversely effect the present operation and business of the Assets.
Additionally, Buyer shall have received an as-built survey of the Real Property
reflecting all improvements visible on the grounds and all easements, rights of
way, encroachments and drainage ditches, whether abutting or interior, of record
or on the grounds. The costs of such title policies and survey shall be borne by
Seller.
7.7 PROPERTY TAXES. Seller shall have paid all property taxes on the
Assets for all calendar years prior to Closing. Any taxes for the calendar year
in which Closing occurs shall be prorated to the Closing Date.
7.8 RECENT AGREEMENTS AND COMMITMENTS. Seller shall have delivered
to Buyer an accurate list and substantially complete description, as of the
Closing Date, showing all contracts and commitments relating to the Assets
entered into by Seller since the date hereof, which agreements Buyer may assume
at its option.
7.9 CONSENTS TO ASSIGNMENTS. All material consents, waivers and
estoppels of third parties which are reasonably necessary, in the opinion of
Buyer, to effectively complete the transactions herein contemplated shall have
been obtained and will be in form and substance reasonably satisfactory to
Buyer.
7.10 BUYER'S FINANCING. Buyer shall have entered into credit
agreements, upon terms and conditions satisfactory to Buyer, with one or more
financial institutions, and such financial institutions shall have funded an
amount equal to the cash portion of the Purchase Price less the Cash Deposit and
the LMA Fee.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER.
The obligations of Seller hereunder are, at the option of Seller, subject
to the satisfaction, on or prior to the Closing Date, of the following
conditions unless waived in writing by Seller:
8.1 REPRESENTATIONS/WARRANTIES. The representations and warranties
of Buyer contained in this Agreement shall be true when made and as of the
Closing Date as though such representations and warranties had been made on and
as of such Closing Date; and each and all of the terms, covenants and conditions
of this Agreement to be complied with or performed by Buyer on or before the
Closing Date pursuant to the terms hereof shall have been duly complied with and
performed.
8.2 ACTION/PROCEEDING. No action or proceeding before a court or any
other governmental agency or body shall have been instituted or threatened to
restrain or prohibit the transaction herein contemplated, and no governmental
agency or body shall have taken any other action or made any request of Seller
or Buyer as a result of which Seller deems it inadvisable to proceed with the
transactions hereunder.
9. NONCOMPETITION.
Seller recognizes that (i) Buyer's entering into this Agreement is induced
primarily because of the covenants and assurances made by Seller hereunder,
including, without limitation, the covenants and assurances contained in this
Section 9, (ii) Seller's covenant not to compete is necessary to insure the
continuation of the business of Buyer in respect of the Assets subsequent to
Closing and (iii) irreparable harm and damage will be done to Buyer in the event
that Seller, or any of Seller's affiliates, competes with Buyer within the area
or areas specified in this Section. Therefore, in consideration of the premises
and as an inducement for Buyer to enter into this Agreement and consummate the
transactions contemplated herein, Seller and Seller's affiliates, including,
without limitation, all of Seller's shareholders, who have joined in the
execution of this Agreement for the purpose of acknowledging their agreement to
be bound by the provisions of this Section 9, agree that for a period of five
(5) years from and after the Closing Date, neither Seller nor Seller's
affiliates will, directly or indirectly, in any capacity, own, manage, operate,
control, participate in the management or control of, be employed by, or
maintain or continue any interest whatsoever in any enterprise engaged in any
business similar to the business of Buyer in respect of the Assets within a
100-mile radius of the Stations. Seller further agrees that if any restriction
contained in this Section is held by any Court to be unenforceable or
unreasonable, a lesser restriction shall be severable therefrom and be enforced
in its place, and the remaining restrictions contained herein shall be
enforceable independently of each other. In the event of an actual or threatened
breach of this covenant by Seller, Buyer shall be entitled to injunctive relief,
without the necessity of posting a bond, cash or otherwise.
10. ADDITIONAL AGREEMENTS.
10.1 TERMINATION PRIOR TO CLOSING. Notwithstanding anything herein
to the contrary, this Agreement may be terminated at any time: (i) on or prior
to the Closing Date by mutual consent of Buyer and Seller; (ii) on or prior to
the Closing Date by Buyer, if there has been a material and adverse change in
the financial condition or prospects for future results of operations of the
Assets since the date hereof: (iii) by Buyer on the Closing Date if any of the
conditions specified in Section 7 of this Agreement have not been satisfied and
shall not have been waived by Buyer; (iv) by Seller if on the Closing Date any
of the conditions specified in Section 8 of this Agreement have not been
satisfied and shall not have been waived by Seller; and (v) by Buyer or Seller
if the Closing shall not have taken place on or before [December 15, 2001]
(which date may be extended by mutual agreement of Buyer and Seller), unless the
party giving notice of termination is in default hereunder.
10.2 POST-CLOSING ACCESS TO INFORMATION. Seller and Buyer
acknowledge that subsequent to Closing each party may need access to information
or documents in the control or possession of the other party for the purposes of
concluding the transactions herein contemplated, audits, compliance with
governmental requirements and regulations, and the prosecution or defense of
third party claims. Accordingly, Seller and Buyer agree that for a period of two
(2) years after Closing each will make reasonably available to the other's
agents, independent auditors and/or governmental agencies upon written request
and at the expense of the requesting party such documents and information as may
be available relating to the Assets for periods prior and subsequent to Closing
to the extent necessary to facilitate concluding the transactions herein
contemplated, audits, compliance with governmental requirements and regulations
and the prosecution or defense of claims.
11. GENERAL.
11.1 ADDITIONAL ASSURANCES. The provisions of this Agreement shall
be self-operative and shall not require further agreement by the parties except
as may be herein specifically provided to the contrary; provided, however, at
the request of either party, the other party shall execute such additional
instruments and take such additional acts as the requesting party may deem
necessary to effectuate this Agreement.
11.2 CONSENTED ASSIGNMENT. Anything contained herein to the contrary
notwithstanding, this Agreement shall not constitute an agreement to assign any
claim, right, contract, license, lease, commitment, sales order or purchase
order if an attempted assignment thereof without the consent of another party
thereto would constitute a breach thereof or in any material way affect the
rights of Seller thereunder, unless such consent is obtained. If such consent is
not obtained, or if an attempted assignment would be ineffective or would
materially affect Seller's rights thereunder so that Buyer would not in fact
receive all such rights, Seller shall cooperate in any reasonable arrangement
designed to provide for Buyer the benefits under any such claim, right,
contract, license, lease, commitment, sales order or purchase order, including,
without limitation, enforcement of any and all rights of Seller against the
other party or parties thereto arising out of the breach or cancellation by such
other party or otherwise.
11.3 CONSENTS, APPROVALS AND DISCRETION. Except as herein expressly
provided to the contrary, whenever this Agreement requires any consent or
approval to be given by either party or either party must or may exercise
discretion, the parties agree that such consent or approval shall not be
unreasonably withheld or delayed and such discretion shall be reasonably
exercised.
11.4 LEGAL FEES AND COSTS. In the event either party elects to incur
legal expenses to enforce or interpret any provision of this Agreement, the
prevailing party will be entitled to recover such legal expenses, including,
without limitation, attorney's fees, costs and necessary disbursements, in
addition to any other relief to which such party shall be entitled.
11.5 CHOICE OF LAW. The parties agree that this Agreement shall be
governed by and construed in accordance with the laws of the State of Texas, and
that the courts of such State shall be the exclusive courts of jurisdiction and
venue for any litigation, special proceedings or other proceedings as between
the parties that may be brought, or arise out of, in connection with or by
reason of this Agreement.
11.6 BENEFIT/ASSIGNMENT. Subject to provisions herein to the
contrary, this Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective legal representatives, successors and
assigns; provided, however, that no party may assign this Agreement without the
prior written consent of the other party, which consent shall not be
unreasonably withheld; provided, further, however, that Buyer may, without the
prior written consent of Seller, assign its rights and delegate its duties
hereunder to one or more entities controlled by Buyer.
11.7 ACCOUNTING DATE. The transactions contemplated hereby shall be
effective for accounting purposes as of 12:01 a.m. on the day after the Closing
Date, unless otherwise agreed in writing by Seller and Buyer.
11.8 NO BROKERAGE. Seller and Buyer represent to each other that no
broker has in any way been contracted in connection with the transactions
contemplated hereby. Seller and Buyer agree to indemnify the other party from
and against all loss, cost, damage or expense arising out of claims for fees or
commissions of brokers employed or alleged to have been employed by such
indemnifying party.
11.9 COST OF TRANSACTION. Whether or not the transactions
contemplated hereby shall be consummated and except as otherwise provided
herein, the parties agree as follows: (i) Seller will pay the fees, expenses,
and disbursements of Seller and its agents, representatives, accountants, and
counsel incurred in connection with the subject matter hereof and any amendments
hereto and shall pay any and all recording fees and sales or recording taxes
incurred in connection with the transfer and conveyance of the Assets to Buyer;
and (ii) Buyer shall pay the fees, expenses and disbursements of Buyer and its
agents, representatives, accountants and counsel incurred in connection with the
subject matter hereof and any amendments hereto.
11.10 CONFIDENTIALITY. It is understood by the parties hereto that
the information, documents and instruments delivered to Buyer by Seller or
Seller's agents and the information, documents and instruments delivered to
Seller by Buyer or Buyer's agents are of a confidential and proprietary nature.
Each of the parties hereto agrees that both prior and subsequent to Closing it
will maintain the confidentiality of all such confidential information,
documents or instruments delivered to it by the other party hereto or its agents
in connection with the negotiation of this Agreement or in compliance with the
terms,conditions and covenants hereof and only disclose such information,
documents and instruments to its duly authorized officers, directors,
representatives and agents. Each of the parties hereto further agrees that if
the transactions contemplated hereby are not consummated, it will return all
such documents and instruments and all copies thereof in its possession to the
other party to this Agreement. Each of the parties hereto recognizes that any
breach of this Section would result in irreparable harm to the other parties to
this Agreement and their affiliates and that therefore either Seller or Buyer
shall be entitled to an injunction to prohibit any such breach or anticipated
breach, without the necessity of posting a bond, cash or otherwise, in addition
to all of their other legal and equitable remedies. Nothing in this Section,
however, shall prohibit the use of such confidential information, documents or
information for such governmental filings as in the mutual opinion of Buyer's
Counsel and Seller's Counsel are (i) required by law or governmental regulations
or (ii) otherwise appropriate.
11.11 PUBLIC ANNOUNCEMENTS. Seller and Buyer mutually agree that no
party hereto shall release, publish or otherwise make available to the public in
any manner whatsoever any information or announcement regarding the transactions
herein contemplated without the prior written consent of Seller and Buyer,
except for information and filings reasonably necessary to be directed to
governmental agencies to fully and lawfully effect the transactions herein
contemplated or required in connection with securities and other laws. Nothing
herein shall prohibit either party from responding to questions presented by the
press or media without first obtaining prior consent of the other party hereto.
11.12 WAIVER OF BREACH. The waiver by either party of a breach or
violation of any provision of this Agreement shall not operate as, or be
construed to constitute, a waiver of any subsequent breach of the same or other
provision hereof.
11.13 NOTICE. Any notice, demand or communication required,
permitted, or desired to be given hereunder shall be deemed effectively given
when personally delivered, when received by telegraphic or other electronic
means (including telecopy and telex) or overnight courier, or five (5) days
after being deposited in the United States mail, with postage prepaid thereon,
certified or registered mail, return receipt requested, addressed as follows:
Seller: XXXXXX XXXXX
000 XXXXXXXXXXX
XXX XXXXXX, XXXXX 00000
Buyer: Hispanic Television Network, Inc.
0000 Xxxxxxx Xxxxxxx, #000
Xxxx Xxxxx, Xxxxx 00000
Attention: XXXX XXXXXXX, Chief Executive Officer
or to such other address, and to the attention of such other person or officer
as any party may designate, with copies thereof to the respective counsel
thereof as notified by such party.
11.14 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws during the term
hereof, such provision shall be fully severable, this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof, and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom. Furthermore, in
lieu of such illegal, invalid or unenforceable provision there shall be added
automatically as a part of this Agreement a legal, valid and enforceable
provision as similar in terms to the illegal, invalid or unenforceable provision
as may be possible.
11.15 GENDER AND NUMBER. Whenever the context of this Agreement
requires, the gender of all words herein shall include the masculine, feminine
and neuter, and the number of all words herein shall include the singular and
plural.
11.16 DIVISIONS AND HEADINGS. The divisions of thisAgreement into
sections and subsections and the use of captions and headings in connection
therewith are solely for convenience and shall have no legal effect in
construing the provisions of this Agreement.
11.17 ENTIRE AGREEMENT/AMENDMENT. This Agreement supersedes all
previous contracts, and constitutes the entire agreement of whatsoever kind or
nature existing between or among the parties respecting the within subject
matter and no party shall be entitled to benefits other than those specified
herein. As between or among the parties, no oral statements or prior written
material not specifically incorporated herein shall be of any force and effect.
The parties specifically acknowledge that in entering into and executing this
Agreement, the parties rely solely upon the representations and agreements
contained in this Agreement and no others. All prior representations or
agreements, whether written or verbal, not expressly incorporated herein are
superseded and no changes in or additions to this Agreement shall be recognized
unless and until made in writing and signed by all parties hereto. The
provisions of this Agreement shall survive the Closing and remain of full force
and effect until the expiration of the applicable statute of limitation for
claims brought hereunder, and shall survive the execution and delivery of all
other agreements described, referenced or contemplated herein and shall not be
merged therewith. This Agreement may be executed in two or more counterparts,
each and all of which shall be deemed an original and all of which together
shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed in multiple originals by their duly authorized officers, all as of the
day and year first above written.
SELLER:
/S/ XXXXXX XXXXX
--------------------------------
Name: Xxxxxx Xxxxx
TITLE: Pastor-Individual
BUYER:
HISPANIC TELEVISION NETWORK, INC.,
a Delaware corporation
Name: /S/ XXXXXXX XXXX XXXXXXX
--------------------------------
Title: CEO
SCHEDULE 1
DESCRIPTIONS OF STATIONS
Xxxxxx Xxxxx, an individual, shall issue a blanket operation authorization and
shall obtain all necessary releases and permits to fully transfer and assign the
following properties:
K07WU Uvalde, TX Assignment to Faith
Pleases God Church
KTRG Del Rio, TX Full Power Xxxxx Broadcasting Corp.
K11UG Carrizo Springs, TX Xxxxxx Xxxxx
K13WD Corpus Christi, TX Xxxx Xxxxx
K17EX Oklahoma City, OK Xxxxxx Xxxxx
K28FV Phoenix, AZ Xxxxxx Xxxxx
K29DZ Xxxxx, XX Xxxxxx Xxxxx
X00XX San Antonio, TX Xxxxx Broadcasting Corp.
K53FU Clovis, NM Faith Pleases God Church
K69HZ McAllen, TX Faith Pleases God Church
/s/ Xxxxxxx Xxxx Xxxxxxx
/s/ Xxxxxx Xxxxx
EXHIBIT A
LICENSE MANAGEMENT AGREEMENT
This document shall serve as a formal License Management Agreement (LMA)
to be filed with the Federal Communications Commission (FCC). This Agreement is
made between _______________________ ("Licensor") and ______________________
("Licensee"). The property to be managed is listed as SEE EXHIBIT SCHEDULE 1
with the FCC, with a city of license registered as SEE SCHEDULE 1.
Licensee will comply with all aspects of regulatory policy regarding the
station and will run programming schedule consisting of: Hispanic
Programming--Network to provide available time to Pastor Xxxxx ministry as per
separate agreement - 3 hours M-S and Sunday Service. Additional $100,000 to be
paid on or before 12-20-99. Pastor Xxxxx to work with company on balance which
shall not go beyond 1-10-2000.
The programming above will comply with all aspects of over air broadcast
requirements including appropriateness of content public service announcements,
required testing and all other requirements existing now or determined to be
required by the FCC in the future.
Licensee will be responsible for all aspects of operations and shall pay
all items required for the ongoing operations including but not limited to:
Utilities, tower rental, maintenance, upkeep and all required operational costs
of the station. The fee for this license management agreement will be 1,500,000
per 24 months. Other pertinent terms and conditions of this transaction are
listed as follows:
Pastor Xxxxx New Years Eve live event Dec 31 - Jan 1, 2000
shall not be preempted on any station.
The term of this Agreement shall be 24 months and shall only be cancelable
in the event of non-payment of fees, non-compliance with Federal regulatory
policy or mutual agreement of both parties. Cancellation will require a minimum
of 30 days notice based upon the following first day of a calendar month and
will require cancellation notice and acceptance by the FCC. This Agreement will
be followed by formal LMA sign-off and notification with the FCC.
AGREED to this 15TH day of DECEMBER, 1999.
/S/ XXXXXX XXXXX /S/ XXXXXXX XXXX XXXXXXX, CEO
---------------- -------------------------------
Licensor Licensee
EXHIBIT B
December _____, 20_____
Hispanic Television Network, Inc.
_____________________
_____________________
Gentlemen:
Pursuant to the terms of the Asset Purchase Agreement (the "Agreement") by
and between Hispanic Television Network, Inc. ("HTN") and the undersigned, the
undersigned has this day delivered the Assets, as defined in the Agreement, to
you in exchange for the purchase price set forth in the Agreement, which
purchase price includes the issuance to the undersigned of ______________ shares
of the common stock of HTN (the "HTN Shares").
In consideration of the issuance of the HTN Shares pursuant to the
Agreement, I hereby covenant, agree and represent to you as follows:
1. I hereby acquire the HTN Shares issued or to be issued to me by HTN
pursuant to the Agreement solely for investment and not with a view to or for
sale in connection with any distribution thereof to the public within the
meaning of the Securities Act of 1933, as amended (the "Act").
2. I agree not to offer, sell, pledge, transfer or otherwise dispose of
the HTN Shares or any portion thereof (or solicit any offers to buy, purchase or
otherwise acquire or to take a pledge of any of said HTN Shares) which I have
received or will receive pursuant to the Agreement if under the Act and the
applicable Rules and Regulations of the Securities and Exchange Commission, I
would be deemed to be an "underwriter" or to be engaged in a distribution with
respect to such shares otherwise than in conformity with the Act.
3. I understand that the following legend will be placed on all
certificates representing the HTN Shares issued or to be issued to me pursuant
to the Agreement.
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. NO TRANSFER, SALE OR OTHER DISPOSITION OF
THESE SHARES MAY BE MADE UNLESS A REGISTRATION STATEMENT WITH RESPECT TO
THESE SHARES HAS BECOME EFFECTIVE UNDER SAID ACT, OR COMPLIANCE WITH RULE
144 PROMULGATED UNDER SAID ACT, OR THE CORPORATION IS FURNISHED WITH AN
OPINION FROM ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
Very truly yours,
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