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EXHIBIT 10.54
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EXHIBIT 10.54
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
XXXXXXXXX MEDIA, INC.
AND
NGM TELEVISION PARTNERS, LIMITED
FOR
TELEVISION STATION WNGM-TV,
ATHENS, GEORGIA
OCTOBER 2, 1995
3
TABLE OF CONTENTS
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Accounts Receivable" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assumed Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Consents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Consent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Final Order" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Intangibles" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Permitted Liens" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Real Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Tangible Personal Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2. PURCHASE AND SALE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Agreement to Sell and Buy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Excluded Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Manner of Determining Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4 Payment of Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.5 Assumption of Liabilities and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1 Organization, Standing and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4 Governmental Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.5 Title to and Condition of Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.6 Title to and Condition of Tangible Personal Property . . . . . . . . . . . . . . . . . . . . 8
3.7 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.8 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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3.9 Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.10 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.11 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.12 Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(a) Employees and Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(b) Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(c) Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.14 Claims and Legal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.15 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.17 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3A. REPRESENTATIONS AND WARRANTIES OF THE GENERAL PARTNER . . . . . . . . . . . . . . . . . . . . . 13
3A.1 Organization, Standing and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3A.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3A.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.1 Organization, Standing and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.4 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.5 Buyer Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.2 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.3 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.4 Trade Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.5 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.6 Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.7 Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.8 Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.9 No Inconsistent Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.10 Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.11 Maintenance of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.12 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.13 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.14 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.15 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.17 Preservation of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.18 Personnel Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.19 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.20 Financial Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.21 Financing Leases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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SECTION 6. SPECIAL COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.1 FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.2 Control of the Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.3 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.5 Environmental and Engineering Audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.6 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.7 State Tax Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.8 Access to Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.9 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.10 Noncompetition Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT CLOSING . . . . . . . . . . . . . . . . . . . . 20
7.1 Conditions to Obligations of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(a) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(b) Covenants and Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(c) Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(d) FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(e) Governmental Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(f) Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(g) Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(h) Television Market . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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7.2 Conditions to Obligations of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(a) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(b) Covenants and Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(c) Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(d) FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(e) Transfer Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8. CLOSING AND CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(a) Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(b) Closing Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.2 Deliveries by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(a) Transfer Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(b) Estoppel Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(c) Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(d) Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(e) Licenses, Contracts, Business Records, Etc. . . . . . . . . . . . . . . . . . . . . 23
(f) Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(g) Noncompetition Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.3 Deliveries by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(a) Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(b) Assumption Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(c) Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(d) Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(e) Noncompetition Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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SECTION 9. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
9.1 Termination by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(a) Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(b) Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(c) Upset Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
9.2 Termination by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(a) Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(b) Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(c) Upset Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(d) Environmental Hazards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(e) Technical Deficiencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(f) Casualty Termination Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.3 Escrow Deposit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.4 Rights on Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;INDEMNIFICATION; CERTAIN REMEDIES . . . . . . . . . 26
10.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.2 Indemnification by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.3 Indemnification by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.4 Procedure for Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.5 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.6 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.1 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.2 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.4 Benefit and Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.5 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.6 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.8 Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.9 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.10 Waiver of Compliance; Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.12 Press Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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LIST OF SCHEDULES
Schedule 2.2 -- Excluded Property
Schedule 3.3 -- Consents
Schedule 3.4 -- Licenses
Schedule 3.5 -- Real Property
Schedule 3.6 -- Tangible Personal Property
Schedule 3.7 -- Assumed Contracts
Schedule 3.9 -- Intangibles
Schedule 3.10 -- Insurance Policies
Schedule 3.12 -- Employee Matters
Schedule 6.10 -- Noncompetition Agreement
Schedule 8.2(f) -- Form of Opinion of Seller's Counsel
Schedule 8.3(d) -- Form of Opinion of Buyer's Counsel
Schedule 9.3 -- Escrow Agreement
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is dated as of October 2, 1995, by and
between Xxxxxxxxx Media, Inc., a Florida corporation ("Buyer"), and NGM
Television Partners, Limited, an Alabama partnership ("Seller").
RECITALS
A. Seller is the licensee of and owns and operates television
station WNGM-TV, Athens, Georgia (the "Station"), pursuant to licenses issued
by the Federal Communications Commission ("FCC").
B. Georgia Mountain Corporation is a Georgia corporation and is
the general partner of Seller ("General Partner") and there are four limited
partners.
C. Seller and General Partner have pending at the FCC a transfer
of control application (FCC File No. BTCCT-950508KF) and the grant and closing
of this application is essential to completing the transaction contemplated by
this Agreement.
D. Seller desires to sell, and Buyer wishes to buy, substantially
all the assets that are owned by Seller or in which Seller has a transferable
interest and which are used or useful in the business or operations of the
Station, for the price and on the terms and conditions set forth in this
Agreement.
AGREEMENTS
In consideration of the above recitals and of the mutual agreements
and covenants contained in this Agreement, Buyer and Seller, intending to be
bound legally, agree as follows:
SECTION 1. DEFINITIONS
The following terms, as used in this Agreement, shall have the
meanings set forth in this Section:
"Accounts Receivable" means the rights of Seller to payment for the
sale of advertising and/or programming time on the Station prior to the Closing
Date.
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Buyer under this Agreement, as specified in Section 2.1 and 2.2.
"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7
that are to be assumed by Buyer upon its purchase of the Station, (ii) all
Contracts entered into by Seller in the ordinary course of business which
comply with the provisions of Section 5.3 hereof; and (iii) any other Contracts
entered into by Seller
9
between the date of this Agreement and the Closing Date that Buyer agrees in
writing to assume.
"Closing" means the consummation of the purchase and sale of the
Assets pursuant to this Agreement in accordance with the provisions of Section
8.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to Buyer
or otherwise to consummate the transactions contemplated by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses,
and other agreements (including leases for personal or real property and
employment agreements), written or oral (including any amendments and other
modifications thereto) to which Seller is a party or which are binding upon
Seller and which relate to or affect the Assets or the business or operations
of the Station, and (i) which are in effect on the date of this Agreement or
(ii) which are entered into by Seller between the date of this Agreement and
the Closing Date.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the
assignment of the FCC Licenses to Buyer as contemplated by this Agreement.
"FCC Licenses" means all Licenses issued by the FCC to Seller in
connection with the business or operations of the Station.
"Final Order" means an action by the FCC that has not been reversed,
stayed, enjoined, set aside, annulled, or suspended, and with respect to which
no requests are pending for administrative or judicial review, reconsideration,
appeal, or stay, and the time for filing any such requests and the time for the
FCC to set aside the action on its own motion have expired.
"Intangibles" means all copyrights, trademarks, trade names, service
marks, service names, licenses, patents, permits, jingles, proprietary
information, technical information and data, machinery and equipment
warranties, and other similar intangible property rights and interests (and any
goodwill associated with any of the foregoing) applied for, issued to, or owned
y Seller or under which Seller is licensed or franchised and which are used or
useful in the business and operations of the Station, together with any
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additions thereto between the date of this Agreement and the Closing Date.
"Licenses" means all licenses, permits, and other authorizations
issued by the FCC, the Federal Aviation Administration, or any other federal,
state, or local government authorities to Seller in connection with the conduct
of the business or operations of the Station, together with any additions
thereto between the date of this Agreement and the Closing Date.
"Permitted Liens" means liens for taxes not yet due and payable.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, or any
governmental entity.
"Purchase Price" means the purchase price specified in Section 2.3.
"Real Property" means Seller's interests in real property, leaseholds
and subleaseholds, purchase options, easements, licenses, rights to access, and
rights of way, and all buildings and other improvements thereon, 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,
furniture, leasehold improvements, office equipment, plant, inventory, spare
parts, and other tangible personal property which is owned by the Seller or in
which Seller has an interest and which is used or useful in the conduct of the
business or operations of the Station, together with any additions thereto
between the date of this Agreement and the Closing Date, but excluding any
Tangible Personal Property consumed in the ordinary course of business between
the date hereof and the Closing Date.
SECTION 2. PURCHASE AND SALE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and
conditions set forth in this Agreement, Seller hereby agrees to sell, transfer,
assign and deliver to Buyer on the Closing Date, and Buyer agrees to purchase
and accept, all of the Assets and property interests owned by Seller or in
which Seller has a property interest which are used or useful in connection
with the conduct of the business or operations of the Station, (but excluding
all vehicles) 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,
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conditions, charges, or encumbrances of any nature whatsoever (except for
Permitted Liens), including the following:
(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles, including the goodwill of
the Station, if any;
(f) All proprietary information, technical
information and data, machinery and equipment warranties, maps, computer discs
and tapes, plans, diagrams, blueprints, and schematics, including filings with
the FCC relating to the business and operation of the Station, which belong to
Seller and is within its possession and control;
(g) All choses in action of Seller relating to
the Station that are assignable to Buyer as provided herein;
(h) All records required by the FCC to be kept by
the Station and copies of all other books and records which belong to Seller
and are within its possession and control relating to the business or
operations of the Station (exclusive of corporate, financial and accounting
records), including executed copies of the Assumed Contracts; and
2.2 Excluded Assets. The Assets shall exclude the following
assets.
(a) Seller's cash on hand as of the Closing and
all other cash in any of Seller's bank or savings accounts; any insurance
policies, letters of credit, or other similar items and cash surrender value in
regard thereto; and any stocks, bonds, certificates of deposit and similar
securities or other investments;
(b) All corporate and accounting records of
Seller and copies of all other books and records relating to the business and
operations of the Station; and
(c) All property listed on Schedule 2.2 hereto;
and
(d) The Accounts Receivable.
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2.3 Purchase Price. The Purchase Price for the Assets shall be
NINE MILLION EIGHT HUNDRED THOUSAND DOLLARS ($9,800,000), adjusted as provided
below:
(a) Prorations. The Purchase Price shall be
increased or decreased as required to effectuate the proration of expenses as
of 11:59 p.m. local time, on the day prior to the Closing Date. All expenses
arising from the operation of the Station, including business and license fees,
utility charges, real and personal property taxes and assessments 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 Asset under this Agreement which shall be governed by Section
11.1 hereof), prepaid time sales agreements and similar prepaid and deferred
items, shall be prorated between Buyer and Seller in accordance with the
principle that Seller shall be responsible for all expenses, costs, and
liabilities allocable to the period prior to the Closing Date, and Buyer shall
be responsible for all expenses, costs, and obligations allocable to the period
on and after the Closing Date. Notwithstanding the preceding sentence, there
shall be no adjustment for, and Seller shall remain solely liable with respect
to, any Contracts not included in the Assumed Contracts and any other
obligation or liability not being assumed by Buyer in accordance with Section
2.5.
(b) Manner of Determining Adjustments. Any
adjustments will, insofar as feasible, be determined and paid on the Closing
Date, with final settlement and payment by the appropriate party occurring no
later than ninety (90) days after the Closing Date or such other date as the
parties shall mutually agree upon.
2.4 Payment of Purchase Price. The Purchase Price shall be paid
by Buyer to Seller as follows: At the Closing, Buyer shall pay to Seller the
sum of NINE MILLION EIGHT HUNDRED THOUSAND DOLLARS ($9,800,000), adjusted as
provided above, by wire transfer of same-day funds pursuant to wire
instructions which shall be delivered by Seller to Buyer, at least two 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 the Seller under the Licenses and the Assumed
Contracts insofar as they relate to the time on and after the Closing Date, and
arise out of events related to Buyer's ownership of the Assets or its operation
of the Station on or after the Closing Date and those relating to the period
prior to the Closing which Buyer agrees to assume pursuant to the prorations
and adjustments. Buyer shall not assume any other
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obligations or liabilities of Seller, including (i) any obligations or
liabilities under any Contract not included in the Assumed Contracts, (ii) any
obligations or liabilities under the Assumed Contracts relating to the period
prior to the Closing Date, (iii) any claims or pending litigation or
proceedings relating to the operation of the Station prior to the Closing, (iv)
any obligations or liabilities arising under agreements entered into other than
in the ordinary course of business, (v) any obligation to any employee of the
Station for severance benefits, vacation time, or sick leave accrued prior to
the Closing Date relating to any employee of Seller who is not employed or
offered employment by Buyer within the 90-day adjustment period, or (vi) any
obligations or liabilities caused by, arising out of, or resulting from any
action or omission of Seller prior to the Closing, and all such obligations and
liabilities shall remain and be the obligations and liabilities solely of
Seller.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization, Standing and Authority. Seller is a partnership
organized under the laws of Alabama and is authorized to transact business in
Georgia. Seller has all requisite power and authority (i) to own, lease, and
use the Assets as now owned, leased, and used, (ii) to conduct the business
operations of the Station as now conducted, and (iii) to execute and deliver
this Agreement and the documents contemplated hereby, and to perform and comply
with all of the terms, covenants, and conditions to be performed and complied
with by Seller hereunder and thereunder. Seller is not a participant of any
joint venture or partnership with any person or entity with respect to any part
of the operations of the Station or any of the Assets.
3.2 Authorization and Binding Obligation. The execution,
delivery, and performance of this Agreement by Seller have been duly authorized
by all necessary partnership actions on the part of Seller. This Agreement has
been duly executed and delivered by Seller and constitutes the legal, valid,
and binding obligation of Seller, enforceable against it in accordance with its
terms except as the enforceability of this Agreement may be affected by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally,
and by judicial discretion in the enforcement of equitable remedies.
3.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents listed on Schedule 3.3, the execution, delivery, the performance of
this Agreement and the documents contemplated hereby (with or without the
giving of notice, the lapse of time, or both): (i) do not require the consent
of any third party; (ii) will not
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conflict with, result in a breach of, or constitute a default under, any law,
judgment, order, ordinance, injunction, decree, rule, regulation, or ruling of
any court or governmental instrumentality in a proceeding involving Seller;
(iii) will not conflict with, constitute grounds for termination of, result in
a breach of, constitute a default under, or accelerate or permit the
acceleration of any performance required by the terms of, any agreement,
instrument, license, or permit to which Seller is a party or by which Seller
may be bound; (iv) will not create any claim, liability, mortgage, lien,
pledge, condition, charge, or encumbrance of any nature whatsoever upon any of
the Assets; and (v) will not conflict with any provision of Seller's
Partnership Agreement or Certificate of Limited Partnership.
3.4 Governmental Licenses. To the best of Seller's knowledge and
except as set forth on Schedule 3.4, (i) Schedule 3.4 includes a true and
complete list of the material Licenses and lists pending applications affecting
the Licenses; (ii) Seller has delivered to Buyer true and complete copies of
the Licenses listed on such Schedule (including any amendment and other
modifications thereto), (iii) the Licenses have been validly issued, and Seller
is the authorized legal holder thereof, (iv) the Licenses listed on Schedule
3.4 comprise all of the material licenses, permits, and other authorizations
required from any governmental or regulatory authority for the lawful conduct
of the business and operations of the Station in the manner and to the full
extent they are now conducted, (v) none of the Licenses is subject to any
restriction or condition that would limit the full operation of the Station as
now operated, (vi) the Licenses are in full force and effect, in all material
respects, and the conduct of the business and operations of the Station is in
material accordance therewith, and (vii) Seller has no reason to believe that
any of the Licenses would not be renewed by the FCC or other granting authority
in the ordinary course. Schedule 3.4 lists the cable systems to whom Seller
made a valid election of must carry and further lists those cable systems that
have disputed or are currently disputing Seller's must carry election. The
Station's city-of-license, as determined by the FCC, is located within (i) the
Atlanta, Georgia Area of Dominant Influence as defined by the 1991-1992 Area of
Dominant Influence Market Guide published by The Arbitron Co., and (ii) the
Atlanta, Georgia Designated Market Area as defined by the 0000 Xxxxxx Xxxxxx
Television Household Estimates published by Xxxxxxx Media Research.
3.5 Title to and Condition of Real Property. Schedule 3.5
contains a complete and accurate description of all the Real Property and
Seller's interests therein (including 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
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business and operations of the Station as now conducted. With respect to each
leasehold or subleasehold interest included in the Real Property being conveyed
under this Agreement, so long as Seller fulfills its obligations under the
lease therefor, Seller has enforceable rights to nondisturbance and quiet
enjoyment, and no third party holds any interest in the leased premises with
the right to foreclose upon Seller's 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. To
the best of Seller's knowledge, all Real Property (including the improvements
thereon) is in good condition and repair consistent with its present use, and
such use complies in all material respects with (i) the terms of the FCC
Licenses, (ii) all rules and regulations of the FCC, and (iii) generally
accepted standards of good engineering practice. All Real Property (including
all improvements thereon) (i) is available for immediate use in the conduct of
the business and operations of the Station, and (ii) complies in all material
respects with all applicable building or zoning codes and the regulations of
any governmental authority having jurisdiction. Seller has full legal and
practical access to the Real Property. All easements, rights-of-way, and real
property licenses relating to the Real Property have been properly recorded in
the appropriate public recording offices. Seller will cooperate with Buyer and
provide such assistance as Buyer may reasonably request in connection with
Buyer's efforts to obtain on or before Closing, at Buyer's election and
expense, a policy of title insurance and a current survey with respect to the
Real Property, including, without limitation, using its best efforts to cause
all lease agreements relating to the Real Property to be recorded in the
appropriate public recording offices.
3.6 Title to and Condition of Tangible Personal Property.
Schedule 3.6 lists all material items of Tangible Personal Property. The
Tangible Personal Property listed on Schedule 3.6 comprises all material items
of tangible personal property used to conduct the business and operations of
the Station as now conducted exclusive of motor vehicles. Except as described
in Schedule 3.6, Seller owns and has good title to each item of Tangible
Personal Property, and none of the Tangible Personal Property owned by Seller
is subject to any security interest, mortgage, pledge, conditional sales
agreement, or other lien or encumbrance, except Permitted Liens. Each item of
Tangible Personal Property is available for immediate use in the business and
operations of the Station. To the best of Seller's knowledge, all items of
transmitting and studio equipment included in the Tangible Personal Property
will permit 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.
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3.7 Contracts. Schedule 3.7 is a true and complete list of all
Assumed Contracts except contracts with advertisers for the sale of advertising
time on the Station for cash at prevailing rates and which may be canceled by
the Station without penalty on not more than ninety days' notice. Seller has
delivered to Buyer true and complete copies of all written Assumed Contracts,
true and complete memoranda of all material oral Assumed Contracts (including
any amendments and other modifications to such Assumed Contracts), and a
schedule summarizing Seller's obligations under trade and barter agreements
relating to the Station. To the best of Seller's knowledge, all of the Assumed
Contracts are in full force and effect, and are valid, binding, and enforceable
in accordance with their terms and there is not under any Assumed Contract any
default by any party thereto or any event that, after notice or lapse of time
or both, could constitute a default. Except for the need to obtain the
Consents listed in Schedule 3.3, Seller has full legal power and authority to
assign its rights under the Assumed Contracts to Buyer in accordance with this
Agreement, and such assignment will not affect the validity, enforceability, or
continuation of any of the Assumed Contracts.
3.8 Consents. Except for the FCC Consent provided in Section 6.1
and the other Consents described in Schedule 3.3, to the best of Seller's
knowledge, no consent, approval, permit, or authorization of, or declaration to
or filing with any governmental or regulatory authority, or any other third
party is required (i) to consummate this Agreement and the transactions
contemplated hereby, (ii) to permit Seller to assign or transfer the Assets to
Buyer, or (iii) to enable Buyer to conduct the business and operations of the
Station in essentially the same manner as such business and operations are now
conducted.
3.9 Intangibles. To the best of Seller's knowledge, Schedule 3.9
is a true and complete list of all material Intangibles (exclusive of those
listed in Schedule 3.4), all of which are valid and in good standing and
uncontested. Seller has delivered to Buyer copies of all documents
establishing or evidencing all intangibles. Seller is not, to the best of its
knowledge, infringing upon or otherwise acting adversely to any trademarks,
trade names, service marks, service names, copyright, patents, patent
applications, know-how, methods, or processes owned by any other person or
persons, and, there is no claim or action pending, or threatened, with respect
thereto. To the best of Seller's knowledge, the Intangibles listed on Schedule
3.9 comprise all intangible property interests used to conduct the business and
operations of the Station as now conducted.
3.10 Insurance. Schedule 3.10 is a true and complete list of all
insurance policies of Seller that insure any part of the Assets
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or the business of the Station. All policies of insurance listed in Schedule
3.10 are in full force and effect.
3.11 Reports. To the best of Seller's knowledge and except as set
forth in Schedule 3.4, all returns, reports, and statements that the Station is
currently required to file with the FCC or place in its Public File or file
with any other governmental agency have been filed, and all reporting
requirements of the FCC and other governmental authorities having jurisdiction
over Seller and the Station have been complied with in all material respects
and all of such returns, reports, and statements are substantially complete and
correct as filed. Seller has not paid to the FCC the 1994 and 1995 annual
regulatory fees payable with respect to the FCC Licenses, and has filed or is
preparing to file a waiver with the FCC with regard to both the 1994 and 1995
annual regulatory fees.
3.12 Personnel.
(a) Employees and Compensation. Schedule 3.12 contains a
true and complete list of all employees of the Station, their job description,
date of hire, salary and amount and date of last salary increase. Schedule
3.12 also contains a true and complete list as of the date of this Agreement of
all employee benefit plans or arrangements applicable to the employees of the
Station and all fixed or contingent liabilities or obligations of Seller with
respect to any person now or formerly employed by Seller at the Station,
including pension or thrift plans, individual or supplemental pension or
accrued compensation arrangements, contributions to hospitalization or other
health or life insurance programs, incentive plans, bonus arrangements, and
vacation, sick leave, disability and termination arrangements or policies,
including workers' compensation policies, and a description of all fixed or
contingent liabilities or obligations of Seller with respect to any person now
or formerly employed at the Station or any person now or formerly retained as
an independent contractor at the Station. Seller has furnished Buyer with true
and complete copies of all employee handbooks, employee rules and regulations,
and summary plan descriptions of the written plans and arrangements listed in
Schedule 3.12, and with descriptions, in writing, of the unwritten plans and
arrangements listed in Schedule 3.12. At Buyer's request, Seller will furnish
Buyer with true and complete copies of all applicable plan documents, trust
documents, and insurance contracts with respect to the plans and arrangements
listed on Schedule 3.12. All employee benefits and welfare plans or
arrangements listed in Schedule 3.12 were established and have been executed,
managed and administered in accordance with the Internal Revenue Code of 1986,
as amended, the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and all other laws. Seller is not aware of the existence of any
governmental
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audit or examination of any of such plans or arrangements or of any facts which
would lead it to believe that any such audit or examination is pending or
threatened. No action, suit, or claim with respect to any of such plans or
arrangements (other than routine claims for benefits) is pending or, to the
knowledge of Seller, threatened, and Seller possesses no knowledge of any facts
which could give rise to any such action, suit or claim.
(b) Labor Relations. Seller is not a party to or subject
to any collective bargaining agreements with respect to the Station. Seller
has no written or oral contracts of employment with any employee of the
Station, other than those listed in Schedule 3.7. 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 it has not 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 its knowledge, threatened, between it 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 Seller's knowledge, there is no union
campaign being conducted 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.
(c) Liabilities. Seller has no liability of any kind to
or in respect of any employee benefit plan, including withdrawal liability
under Section 4201 of ERISA. Seller has not incurred any accumulated funding
deficiency within the meaning of ERISA or Section 4971 of the Internal Revenue
Code. Seller has not failed to make any required contributions to any employee
benefit plan. The Pension Benefit Guaranty Corporation has not asserted that
Seller has incurred any liability in connection with any such plan. No lien
has been attached and no person has threatened to attach a lien on any property
of Seller as a result of a failure to comply with ERISA.
3.13 Taxes. To the best of the Seller's knowledge, (i) Seller has
filed or caused to be filed all federal income tax returns and all other
federal, state, county, local, or city tax returns which are required to be
filed, and it has paid or caused to be paid all taxes shown on those returns or
on any tax assessment received by it to the extent that such taxes have become
due, and (ii) there are no governmental investigations or other legal,
administrative, or tax proceedings pursuant to which Seller is or could be made
liable for any taxes, penalties, interest, or other charges, the
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liability for which could extend to Buyer as transferee of the business of the
Station, and no event has occurred that could impose on Buyer any transferee
liability for any taxes, penalties, or interest due or to become due from
Seller.
3.14 Claims and Legal Actions. Except for any FCC rulemaking
proceedings generally affecting the broadcasting industry, and except as set
forth on Schedule 3.4, to the best of Seller's knowledge, there is no claim,
legal action, counterclaim, nor any order, decree or judgment, in progress or
pending, or to the knowledge of Seller threatened, against or relating to
Seller with respect to its ownership or operation of the Station or otherwise
relating to the Assets or the business or operations of the Station, nor does
Seller know or have reason to be aware of any basis for the same. In
particular, but without limiting the generality of the foregoing, and except as
forth on Schedule 3.14, to the best of Seller's knowledge, there are no
applications, complaints or proceedings pending or, to the best of its
knowledge, threatened (i) before the FCC relating to the business or operations
of the Station other than rule making proceedings which affect the radio
industry generally, (ii) before any federal or state agency relating to the
business or operations of the Station involving charges of illegal
discrimination under any federal or state employment laws or regulations, or
(iii) before any federal, state, or local agency relating to the business or
operations of the Station involving zoning issues under any federal, state, or
local zoning law, rule, or regulation.
3.15 Environmental Matters.
(a) Seller has complied in all material respects with all
laws, rules, and regulations of all federal, state, and local governments (and
all agencies thereof) concerning the environment, public health and safety, and
employee health and safety, and no charge, complaint, action, suit, proceeding,
hearing, investigation, claim, demand, or notice has been filed or commenced
against 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 Seller's knowledge, after due
investigation, Seller has no liability relating to its ownership and operation
of the Station (and there is no basis related to the past or present
operations, properties, or facilities of Seller for any present or future
charge, complaint, action, suit, proceeding, hearing, investigation, claim, or
demand against Seller giving rise to any such liability) under any law, rule,
or regulation of any federal, state, or local government (or agency thereof)
concerning release or threatened release of hazardous substances, public health
and safety, or pollution or protection of the environment.
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(c) To the best of Seller's knowledge, after due
investigation, Seller has no liability relating to its ownership and operation
of the Station (and Seller has not handled or disposed of any substance,
arranged for the disposal of any substance, or owned or operated any property
or facility in any manner that could form the basis for any present or future
charge, complaint, action, suit, proceeding, hearing, investigation, claim, or
demand (under the common law or pursuant to any statute) against Seller giving
rise to any such liability) for damage to any site, location, or body of water
(surface of subsurface) or for illness or personal injury.
(d) To the best of Seller's knowledge, after due
investigation, Seller has no liability relating to its ownership and operation
of the Station (and there is no basis for any present or future charge,
complaint, action, suit, proceeding, hearing, investigation, claim, or demand
against Seller giving rise to any such liability) under any law, rule, or
regulation of any federal, state, or local government (or agency thereof)
concerning employee health and safety.
(e) In connection with its ownership or operation of the
Station, Seller has obtained and been in material compliance with all of the
terms and conditions of all permits, licenses, and other authorizations which
are required under, and has complied in all material respects with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables which are contained in, all federal,
state, and local laws, rules, and regulations (including all codes, plans,
judgments, orders, decrees, stipulations, injunctions, and charges thereunder)
relating to public health and safety, worker health and safety, and pollution
or protection of the environment, including laws relating to emissions,
discharges, releases, or threatened releases of pollutants, contaminants, or
chemical, industrial, hazardous, or toxic materials or wastes into ambient air,
surface water, ground water, or lands or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling of pollutants, contaminants, or chemical, industrial, hazardous, or
toxic materials or wastes.
(f) To the best of Seller's knowledge, after due
investigation, all properties and equipment used in the business of the Station
are and have been free of asbestos and asbestos-related products, PCB's,
dioxins, and Extremely Hazardous Substances (as defined in Section 302 of the
Emergency Planning and Community Right-to-Know Act).
(g) No pollutant, contaminant, or chemical, industrial,
hazardous, or toxic material or waste has ever been manufactured, buried,
stored, spilled, leaked, discharged, emitted, or released
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by Seller in connection with its ownership and operation of the Station or, to
the best of Seller's knowledge, after due investigation, by any other party on
any Real Property.
3.16 Compliance with Laws. To the best Seller's knowledge and
except as set forth on Schedule 3.4, Seller has complied in all material
respects with the Licenses and all federal, state, and local laws, rules,
regulations, and ordinances applicable or relating to the ownership and
operation of the Station. To the best of Seller's 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.
3.17 Full Disclosure. No representation or warranty made by Seller
in this Agreement or in any certificate, document, or other instrument
furnished or to be furnished by Seller pursuant hereto contains or will
knowingly contain any untrue statement of a material fact.
SECTION 3A. REPRESENTATIONS AND WARRANTIES OF THE GENERAL
PARTNER
Georgia Mountain Corporation ("GMC") as Seller's General Partner
represents and warrants to Buyer as follows:
3A.1 Organization, Standing and Authority. GMC is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Georgia. GMC has all requisite corporate power and authority to
execute and deliver this Agreement and the documents contemplated hereby.
3A.2 Authorization and Binding Obligation. The execution, delivery,
and performance of this Agreement by GMC have been duly authorized by all
necessary corporate actions on the part of GMC. This Agreement has been duly
executed by GMC and constitute the legal, valid and binding obligation of GMC,
enforceable against it in accordance with their terms except as the
enforceability hereof may be affected by bankruptcy, insolvency, or similar
laws affecting creditors' rights generally or by court-applied equitable
remedies.
3A.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents, the execution, delivery, and performance of this Agreement and the
documents contemplated hereby, by GMC (with or without giving of notice, the
lapse of time, or both): (i) does not require the consent of any third party
(ii) will not conflict with any provision of the Articles of Incorporation or
By-Laws of GMC; (iii) will not conflict with, result in a material breach of,
or constitute a material default under, any law, judgment, order,
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injunction, decree, rule, regulation or ruling of any court or governmental
instrumentality, which is applicable to CCI; or (iv) will not conflict with,
constitute grounds for termination of, result in a material breach of,
constitute a material default under, or accelerate or permit the acceleration
of any performance required by the terms of an material agreement, instrument,
licenses, or permit to which GMC is a party or by which GMC may be bound.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization, Standing and Authority. Buyer is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Florida and at Closing will be duly qualified to conduct business as a
foreign corporation in the State of Georgia. Buyer has all requisite power and
authority to execute and deliver this Agreement and the documents contemplated
hereby, and to perform and comply with all of the terms, covenants, and
conditions to be performed and complied with by Buyer hereunder and thereunder.
4.2 Authorization and Binding Obligation. The execution,
delivery, and performance of this Agreement by Buyer have been duly authorized
by all necessary actions on the part of Buyer. This Agreement has been duly
executed and delivered by Buyer and constitutes the legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms
except as the enforceability of this Agreement may be affected by bankruptcy,
insolvency, or similar laws affecting creditors' rights generally and by
judicial discretion in the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents, the execution, delivery, and performance by Buyer of this Agreement
and the documents contemplated hereby (with or without the giving of notice,
the lapse of time, or both): (i) do not require the consent of any third party;
(ii) will not conflict with the Certificate of Incorporation or Bylaws of
Buyer; (iii) will not conflict with, result in a breach of, or constitute a
default under, any law, judgment, order, injunction, decree, rule, regulation,
or ruling of any court or governmental instrumentality; (iv) will not conflict
with, constitute grounds for termination of, result in a breach of, constitute
a default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license, or permit to
which Buyer is a party or by which Buyer may be bound, such that Buyer could
not acquire the Assets or operate the Station.
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4.4 Full Disclosure. No representation or warranty made by Buyer
in this Agreement or in any certificate, document, or other instrument
furnished or to be furnished by Buyer pursuant hereto contains or will
knowingly contain any untrue statement of a material fact.
4.5 Buyer 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 amended, and the rules, regulations
and policies of the FCC. Buyer knows of no fact that would, under existing law
and the existing rules, regulations, policies and procedures of the FCC
disqualify Buyer as assignee of the FCC Licenses or as the owner and operator
of the Station.
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING
5.1 Generally. Seller agrees that, between the date of this
Agreement and the Closing Date, Seller shall operate the Station in the
ordinary course of business in accordance with its past practices (except where
such conduct would conflict with the following covenants or with Seller's other
obligations under this Agreement), and in accordance with the other covenants
in this Section 5.
5.2 Compensation. Seller shall not materially 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. Seller will not enter into any contract or
commitment which is not terminable on 90-days notice 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 made in the ordinary
course of business and other contracts or commitments involving less than
$5,000. Prior to the Closing Date, Seller shall deliver to Buyer a list of all
Contracts entered into between the date of this Agreement and the Closing Date,
together with copies of such Contracts.
5.4 Trade Agreements. Seller shall not increase in any material
respect its obligations under trade agreements in effect on the date hereof and
shall use reasonable best efforts to satisfy Station's obligations under the
trade agreements in effect on the date hereof.
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5.5 Disposition of Assets. Seller shall not sell, assign, lease,
or otherwise transfer or dispose of any of the material 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.
5.6 Encumbrances. Seller shall not create, assume or permit to
exist any claim, liability, mortgage, lien, pledge, condition, charge, or
encumbrance of any nature whatsoever upon the Assets, except for (i) liens
which shall be removed prior to the Closing Date, (ii) liens for current taxes
not yet due and payable, and (iii) mechanics' liens and other similar liens,
which shall be removed prior to the Closing Date either by payment or posting
an appropriate indemnity bond.
5.7 Licenses. Seller shall not cause or permit, by any act or
failure to act, any of the Licenses issued by the FCC to expire or to be
revoked, suspended, or modified, or take any action that could cause the FCC or
any other governmental authority to institute proceedings for the suspension,
revocation, or adverse modification of any of the Licenses. Seller shall not
fail to prosecute with due diligence any applications to any governmental
authority in connection with the operation of the Station.
5.8 Rights. Seller shall not knowingly waive any material right
relating to the Station or any of the Assets.
5.9 No Inconsistent Action. Seller shall not take any action that
is inconsistent with its material obligations under this Agreement or that
could hinder or delay the consummation of the transactions contemplated by this
Agreement. Without limiting the generality of the foregoing, Seller covenants
that neither it nor any of its partners nor their officers or agents will,
prior to the Closing Date, (a) solicit, initiate or encourage the submission of
any proposal or offer relating to any (i) liquidation, dissolution or
recapitalization, (ii) merger or consolidation, (iii) acquisition or purchase
of securities or assets, or (iv) similar transaction or business combination,
in each case involving Seller or (b) participate in any discussions or
negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
party to do or seek any of the foregoing. Notwithstanding the foregoing,
Seller and its General Partner may undertake to complete the restructuring
presented to the FCC in the pending transfer of control application (FCC File
No. BTCCT-950508KF). Seller shall notify Buyer as soon as practicable if any
party makes any proposal with respect to any of the foregoing. Notwithstanding
any other provision in this Agreement to the contrary, in the event that Seller
violates its obligations in this Section 5.9, Buyer shall
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have the right to seek specific performance of Seller's obligations hereunder.
5.10 Access to Information. Seller shall give Buyer and its
counsel, accountants, engineers, and other authorized representatives
reasonable access during normal business hours to the Assets and to all other
properties, equipment, books, records, Contracts, and documents relating to the
Station for the purpose of audit and inspection, including inspections incident
to the environmental study and the engineering study described in Section 6.6,
and will furnish or cause to be furnished to Buyer or its authorized
representatives all material information with respect to the affairs and
business of the Station that Buyer may reasonably request (including any
operations reports produced with respect to the affairs and business of the
Station).
5.11 Maintenance of Assets. Seller shall maintain all of the
Assets in good condition (ordinary wear and tear and casualty loss excepted),
and use, operate, and maintain all of the Assets in a reasonable manner.
Seller shall maintain inventories of spare parts and expendable supplies at
levels consistent with past practices.
5.12 Insurance. Seller shall maintain substantially the same
insurance coverage provided by the existing insurance policies on the Station
and the Assets.
5.13 Consents. Seller shall use its best efforts to obtain the
Consents described in Section 8.2(c), without any material change in the terms
or conditions of any Contract or License as in effect on the date of this
Agreement. Seller shall advise Buyer of any communications it receives
concerning the Consents and of any conditions proposed, considered, or
requested for any of the Consents. Upon Buyer's request, Seller shall
cooperate with Buyer and use its best efforts to obtain from the lessors under
each Real Property lease such estoppel certificates and consents to the
collateral assignment of the lessee's interest under each such lease as Buyer's
lenders may request.
5.14 Books and Records. Seller shall maintain its books and
records relating to the Station in accordance with past practices.
5.15 Notification. Seller shall promptly notify Buyer in writing
of any material change in any of the information contained in Seller's
representations and warranties contained in Section 3 of this Agreement.
5.16 Compliance with Laws. Seller shall comply in all material
respects with all laws, rules, and regulations applicable or relating to the
ownership and operation of the Station.
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5.17 Preservation of Business. Seller shall operate the Station in
the ordinary course of business consistent with its past practices.
5.18 Personnel Recommendations. Seller shall promptly notify Buyer
as personnel vacancies occur at the Station and consider for employment all
personnel recommended by Buyer for such vacant positions.
5.19 Indebtedness. Seller shall not incur, create, assume or
permit to exist any Indebtedness, except (i) unsecured trade accounts payable
and other unsecured current Indebtedness incurred in the ordinary course of
business between the date hereof and the Closing Date (but excluding any
Indebtedness for borrowed money) ("Trade Indebtedness") and (ii) Indebtedness
for taxes arising between the date hereof and the Closing Date.
5.20 Financial Information. Seller shall furnish to Buyer within
twenty 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 Seller to
Buyer pursuant to this Section shall be prepared from the books and records of
Seller 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.
5.21 Financing Leases. Seller 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 Seller pursuant
to those leases so that those Assets shall be transferred to Buyer at Closing
free of any interest of the lessors.
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC Consent.
(a) The assignment of the FCC Licenses in connection with
the purchase and sale of the Assets pursuant to this Agreement shall be subject
to the prior consent and approval of the FCC.
(b) Seller and Buyer shall promptly prepare an
appropriate application for the FCC Consent and shall file the application with
the FCC within five (5) business days of the
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execution of this Agreement. The parties shall prosecute the application with
all reasonable diligence and otherwise use their reasonable commercial efforts
to obtain a grant of the application as expeditiously as practicable. Each
party agrees to comply with any condition imposed on it by the FCC Consent,
except that no party shall be required to comply with a condition if (1) the
condition was imposed on it as the result of a circumstance the existence of
which does not constitute a breach by the party of any of its representations,
warranties, or covenants under this Agreement, and (2) compliance with the
condition would have a material adverse effect upon it, provided, however, that
Buyer agrees that the imposition by the FCC of a standard EEO reporting
condition on the Station's license renewal shall not be considered to have a
material adverse effect. Buyer and Seller shall oppose any requests for
reconsideration or judicial review of the FCC Consent, provided, however, that
the parties shall continue to have all rights available to them pursuant to
Section 9 hereof. If the Closing shall not have occurred for any reason within
the original effective period of the FCC Consent, and neither party shall have
terminated this Agreement under Section 9, the parties shall jointly request an
extension of the effective period of the FCC Consent. No extension of the FCC
Consent shall limit the exercise by either party of its rights under Section 9.
6.2 Control of the Station. Prior to Closing, Buyer shall not,
directly or indirectly, control, supervise, direct, or attempt to control,
supervise, or direct, the operations of the Station; such operations, including
complete control and supervision of all of the Station programs, employees, and
policies, shall be the sole responsibility of the Seller until the Closing.
6.3 Risk of Loss. The risk of any loss, damage, impairment,
confiscation, or condemnation of any of the Assets from any cause whatsoever
shall be borne by Seller at all times prior to the Closing. If any damage or
destruction of the Assets or any other event occurs which prevents in any
material respect signal transmission by the Station in the normal and usual
manner and Seller is unable to restore or replace the Assets so that such
conditions are cured and normal and usual transmission is resumed in all
material respects before the Closing Date, Seller shall send Buyer written
notice of such event (a "Casualty Notice"), which notice shall contain an
estimate, in Seller's reasonable judgment, of the costs to repair or replace
the damaged or destroyed Assets, as well as the amount of any credit or refund
Seller will offer Buyer due to the inadequacy of Seller's insurance proceeds to
restore or place the Assets in all material respects. Within five (5) days
after its receipt of a Casualty Notice, Buyer may, by written notice to Seller
(a "Casualty Termination Notice"), elect to terminate the Agreement and receive
a refund of the Escrow Deposit and interest earned thereon, and neither party
shall
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thereafter have any liability to the other hereunder. In the event that Buyer
does not give Seller a timely and unconditional Casualty Termination Notice,
then Buyer shall, proceed to close this Agreement and complete the restoration
and replacement of such damaged Assets and Seller shall deliver to Buyer all
insurance proceeds received in connection with such damage or destruction of
the Assets; provided, however, that Buyer will receive a credit or refund at
Closing for any funds it provides up to the amount of credit or refund as
offered by Seller's Casualty Notice.
6.4 Confidentiality. Except as necessary for the consummation of
the transaction contemplated by this Agreement, including Buyer's obtaining of
financing related hereto, and except as and to the extent required by law,
including, without limitation, disclosure requirements of federal or state
securities laws and rules and regulations of securities markets, each party
will keep confidential any information obtained from the other party in
connection with the transactions contemplated by this Agreement. Except as
provided in this Paragraph each party will refrain from disclosing any such
information to any third party. If this Agreement is terminated, each party
will return to the other party all copies of all documents and other all
information obtained by the such party from the other party in connection with
the transactions contemplated by this Agreement.
6.5 Environmental and Engineering Audit. Buyer shall have the
right during the period ending thirty (30) days from the date hereof at its
expense (i) to retain an environmental consultant to conduct a Phase I or other
environmental study with respect to the Real Property, and (ii) 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
applicable FCC rules, regulations, prescribed practice and technical standards.
In the event that such investigations or reports disclose matters which are not
acceptable to Buyer then Buyer may by written notice to Seller within such
thirty (30) day period elect to terminate this Agreement and receive a refund
of the Escrow Deposit unless Seller within five (5) business days from its
receipt of such notice gives Buyer notice of Seller's election to undertake and
perform remedial action to cure such matters. In no event shall Seller have
any liability to Buyer following the Closing for any environmental matters.
6.6 Cooperation. Buyer and Seller shall cooperate fully with each
other and their respective counsel and accountants in connection with any
actions required to be taken as part of their respective obligations under this
Agreement, and Buyer and Seller shall execute such other documents as may be
necessary and desirable to the implementation and consummation of this
Agreement, and otherwise use their reasonable commercial efforts to consummate
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the transaction contemplated hereby and to fulfill their obligations under this
Agreement. Notwithstanding the foregoing, neither Buyer nor Seller shall have
any obligation (i) to expend funds to obtain any of the Consents or (ii) to
agree to any material adverse change in any License or Assumed Contract to
obtain a Consent required with respect thereto; provided, however, that Seller
shall be required to expend funds, if necessary, to cure any defaults in order
to obtain Consents and either party shall be required to expend funds in
respect of normal and usual filing fees and the fees of professional advisors.
6.7 State Tax Filings. Seller shall continue to file Georgia
sales tax returns with respect to the Station in accordance with Seller's past
practices.
6.8 Access to Books and Records. Seller shall provide Buyer
access and the right to copy for a period of four (4) years from the Closing
Date any books and records relating to the Assets but not included in the
Assets. Buyer shall provide Seller access and the right to copy for a period
of four (4) years from the Closing Date any books and records relating to the
Assets that are included in the Assets.
6.9 Broker. Each of Buyer and Seller represents and warrants that
neither it nor any person or entity acting on its behalf has incurred any
liability for any finders' or brokers' fees or commissions in connection with
the transactions contemplated by this Agreement, except that Seller shall be
solely responsible for any commissions payable to Media Venture Partners and
Xxxxxx and Company.
6.10 Noncompetition Agreement. At Closing, Buyer and Seller shall
enter into a Noncompetition Agreement in the form of Schedule 6.10 and Seller
shall receive Two Hundred Thousand Dollars ($200,000).
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER
AT CLOSING
7.1 Conditions to Obligations of Buyer. All obligations of Buyer
at the Closing are subject at Buyer's option to the fulfillment or waiver by
Buyer prior to or at the Closing Date of each of the following conditions:
(a) Representations and Warranties. All material
representations and warranties of Seller and General Partner 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.
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(b) Covenants and Conditions. Seller shall have
performed and complied in all material respects with all material covenants,
agreements, and conditions required by this Agreement to be performed or
complied with by it prior to or on the Closing Date.
(c) Consents. All Consents shall have been obtained and
delivered to Buyer without any material adverse change in the terms or
conditions of any agreement or any governmental license, permit, or other
authorization, provided that with respect to Consents to assignment of
agreements, only Consent to assignment of the Lease described in Paragraph 1 of
Schedule 3.7 hereof shall be a condition precedent to Buyer's obligation to
close, and; provided, further, that as set forth at Section 6.1(b) hereof, the
imposition of a standard EEO reporting condition by the FCC will not be
considered a material adverse change.
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Buyer of any material conditions that need not be
complied with by Buyer under Section 6.1 hereof, Seller shall have complied
with any material conditions imposed on it by the FCC Consent, and the FCC
Consent shall have become a Final Order.
(e) Governmental Authorizations. Seller shall be the
holder of all material Licenses and there shall not have been any modification
of any material License that could have a material adverse effect on the
Station or the conduct of its business and operations. No proceeding shall be
pending the effect of which could be to revoke, cancel, fail to renew, suspend,
or modify adversely any material License. All FCC Licenses are material
Licenses.
(f) Deliveries. Seller and General Partner shall have
made or stand willing to make all the deliveries to Buyer set forth in Section
8.2.
(g) Adverse Change. Subject to the provisions of Section
6.3 hereof, between the date of this Agreement and the Closing, there shall
have been no material adverse change in the Real Property or Tangible Personal
Property of the Station, including any damage, destruction, or loss to the Real
Property or Tangible Personal Property used or useful by the Station.
(h) Television Market. Between the date of this
Agreement and the Closing, there shall have been no action deleting the City of
Athens, Georgia or Xxxxxx County, Georgia or the Station from the Atlanta,
Georgia DMA as defined by Xxxxxxx Media Research.
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7.2 Conditions to Obligations of Seller. All obligations of
Seller at the Closing are subject at Seller's option to the fulfillment prior
to or at the Closing Date of each of the following conditions:
(a) Representations and Warranties. All material
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 material covenants, agreements,
and conditions required by this Agreement to be performed or complied with by
it prior to or on the Closing Date.
(c) Deliveries. Buyer shall have made or stand willing
to make all the deliveries set forth in Section 8.3.
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Seller of any material conditions that need not be
complied with by Seller under Section 6.1 hereof and Buyer shall have complied
with any conditions imposed on it by the FCC Consent.
(e) Transfer Application. The FCC shall have approved
Seller's transfer of control application (FCC File No. BTCCT-950508KF).
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
Seller, 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. If Buyer fails to specify
the date for Closing pursuant to the preceding sentence prior to the fifth
business day after the date upon which the FCC Consent becomes a Final Order,
the Closing shall take place on the tenth business day after the date upon
which the FCC Consent becomes a Final Order.
(b) Closing Place. The Closing shall be held at the
offices of Dow, Xxxxxx & Xxxxxxxxx, 0000 00xx Xxxxxx, X.X, Xxxxx 000,
Xxxxxxxxxx, X.X. 00000, or such other place that is agreed upon by Buyer and
Seller.
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8.2 Deliveries by Seller. Prior to or on the Closing Date, Seller
shall deliver to Buyer the following, in form and substance reasonably
satisfactory to Buyer and its counsel:
(a) Transfer Documents. Subject to the provisions of
this Agreement, duly executed bills of sale, assignments, and other transfer
documents which shall be sufficient to vest good and marketable title to the
Assets in the name of Buyer, free and clear of all mortgages, liens,
restrictions, encumbrances, claims, and obligations except for Permitted Liens.
(b) Estoppel Certificate. An Estoppel Certificate of the
Lessor of the leasehold interests listed in Schedule 3.5.
(c) Consents. An executed copy of any instrument
evidencing receipt of any Consent;
(d) Certificates. Certificates, dated as of the Closing
Date, executed by Seller and General Partner certifying (1) that the material
representations and warranties of Seller and General Partner 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 Seller and General Partner
have in all material respects performed and complied with all of its material
obligations, covenants, and agreements set forth in this Agreement to be
performed and complied with on or prior to the Closing Date and such additional
Certificates and confirmations to Buyer's lenders as Buyer may reasonably
request in connection with obtaining financing for the performance of its
payment obligations hereunder.
(e) Licenses, Contracts, Business Records, Etc. Copies
of all Licenses and Assumed Contracts;
(f) Opinions of Counsel. Opinions of Seller's corporate
and communications counsel dated as of the Closing Date, substantially in the
form of Schedule 8.2(f) hereto.
(g) Noncompetition Agreement. The Noncompetition
Agreement in the form of Schedule 6.10 duly executed by Seller.
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer
shall deliver to Seller the following, in form and substance reasonably
satisfactory to Seller and its counsel;
(a) Purchase Price. The Purchase price as provided in
Section 2.4(a);
(b) Assumption Agreements. Appropriate assumption
agreements pursuant to which Buyer shall assume and undertake to
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perform Seller's obligations under the Licenses and Assumed Contracts arising
on or after the Closing Date;
(c) Officer's Certificate. A certificate, dated as of
the Closing Date, executed on behalf of Buyer by its President, certifying (1)
that the representations and warranties of Buyer contained in this Agreement
are true and complete in all material respects as of the Closing Date as though
made on and as of that date, and (2) that Buyer has in all material respects
performed and complied with all of its obligations, covenants, and agreements
set forth in this Agreement to be performed and complied with on or prior to
the Closing Date;
(d) Opinion of Counsel. An opinion of Buyer's counsel
dated as of the Closing Date, substantially in the form of Schedule 8.3(d)
hereto.
(e) Noncompetition Agreement. The Noncompetition
Agreement in the form of Schedule 6.10, duly executed by Buyer and the payment
called for by that Agreement.
SECTION 9. TERMINATION
9.1 Termination by Seller. This Agreement may be terminated by
Seller and the purchase and sale of the Assets abandoned, if Seller is not then
in material default, upon written notice to Buyer, upon the occurrence of any
of the following:
(a) Conditions. If, on the date that would otherwise be
the Closing Date, any of the conditions precedent to the obligations of Seller
set forth in this Agreement have not been satisfied or waived in writing by
Seller.
(b) Judgments. If there shall be in effect on the date
that would otherwise be the Closing Date any judgment, decree, or order, not
caused by Seller, that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred
by October 1, 1996.
9.2 Termination by Buyer. This Agreement may be terminated by
Buyer and the purchase and sale of the Station abandoned, if Buyer is not then
in material default, upon written notice to Seller, upon the occurrence of any
of the following:
(a) 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.
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(b) Judgments. If there shall be in effect on the date
that would otherwise be the Closing Date any judgment, decree, or order, not
caused by Buyer, that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred
by October 1, 1996.
(d) Environmental Hazards. Buyer shall have notified
Seller 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 30 days after the execution of this
Agreement, and the cause thereof shall not have been remedied prior to the
Closing Date.
(e) Technical Deficiencies. Buyer shall have notified
Seller of material deficiencies in the technical operations or equipment of the
Station, as indicated in the engineering study described in Section 6.5, within
30 days after the date of this Agreement, and the cause thereof shall not have
been remedied prior to the Closing Date.
(f) Casualty Termination Notice. Buyer shall have given
a timely and unconditional Casualty Termination Notice to Seller pursuant to
Section 6.3 hereof.
9.3 Escrow Deposit. Simultaneously with the execution and
delivery of this Agreement, Buyer has deposited with First Union National Bank
of Florida, as escrow agent (the "Escrow Agent"), the sum of Five Hundred
Thousand Dollars ($500,000) in accordance with an Escrow Agreement among Buyer,
Seller and the Escrow Agent in the form of Schedule 9.3. All funds deposited
with the Escrow Agent shall be held and disbursed in accordance with the terms
of the Escrow Agreement and the following provisions:
(a) At the Closing, all amounts held by the Escrow Agent
pursuant to the Escrow Agreement, [including any interest or other proceeds
from the investment of funds held by the Escrow Agent], shall be disbursed to
or at the direction of Buyer.
(b) If this Agreement is terminated pursuant to Section
9.1 or Section 9.2 and Buyer is not in material breach of any provision of this
Agreement, all amounts held by the Escrow Agent pursuant to the Escrow
Agreement, including any interest or other proceeds from the investment of
funds held by the Escrow Agent, shall be disbursed to or at the direction of
Buyer.
(c) If this Agreement is terminated by Seller due to
Buyer's breach of this Agreement, then the amounts held by the Escrow Agent
pursuant to the Escrow Agreement, including any
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interest or other proceeds from the investment of funds held by the Escrow
Agent shall be disbursed by the Escrow Agent to or at the direction of Seller.
9.4 Rights on Termination. If this Agreement is terminated
pursuant to Section 9.1 or Section 9.2 and neither party is in material breach
of any provision of this Agreement, the parties hereto shall not have any
further liability to each other with respect to the purchase and sale of the
Assets. If this Agreement is terminated by Seller due to Buyer's material
breach of any provision of this Agreement, then the payment to Seller pursuant
to Section 9.3(c) shall be liquidated damages and shall constitute full payment
and the exclusive remedy for any damages suffered by Seller by reason of
Buyer's material beach of this Agreement. Seller and Buyer agree in advance
that actual damages would be difficult to ascertain and that the amount of Five
Hundred Thousand ($500,000) is a fair and equitable amount to reimburse Seller
for damages sustained due to Buyer's material breach of this Agreement. If
prior to Closing, Seller is in material breach of its obligations under this
Agreement, Buyer's sole remedy shall be an action for specific performance of
this Agreement and Buyer expressly waives any right to pursue a claim for
monetary damages.
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES
10.1 Representations and Warranties. All representations and
warranties contained in this Agreement shall be deemed continuing
representations and warranties and shall survive the closing for a period of
eighteen (18) months provided, however, that as to any representation or
warranty made by either the Buyer or Seller which the other party knows, or has
reason to believe, is not true as of the Closing Date, such representation or
warranty shall not survive the Closing. Until the Closing, Buyer and Seller
will immediately advise each other, in a detailed written notice, of any fact
or occurrence or any pending or threatened occurrence of which any of them
obtains knowledge and which (a) (if existing and known at the date of the
execution of this Agreement) would have been required to be set forth or
disclosed in or pursuant to this Agreement or a Schedule hereto, (b) (if
existing and known at any time prior to or at the Closing) would make the
performance by any party of a covenant contained in this Agreement impossible
or make that performance materially more difficult than in the absence of that
fact or occurrence, or (c) (if existing and known at the time of the Closing)
would cause a condition to any party's obligations under this Agreement not to
be fully satisfied.
10.2 Indemnification by Seller. Seller hereby agrees to indemnify
and hold Buyer harmless against and with respect to, and shall reimburse Buyer
for:
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(a) Subject to the proviso contained in the first
sentence of Section 10.1, any and all losses, liabilities, or damages resulting
from any untrue representation, breach of warranty, or material omission or
nonfulfillment of any covenant by Seller contained in this Agreement or in any
certificate, document, or instrument delivered to Buyer under this Agreement.
(b) Any and all obligations of Seller not assumed by
Buyer pursuant to this Agreement, including any liabilities arising at any time
under any Contract not included in the Assumed Contracts.
(c) Any and all losses, liabilities, or damages
contingent or otherwise resulting from the operation or ownership of the
Station prior to the Closing Date, including any liabilities arising under the
Licenses or the Assumed Contracts which relate to events occurring prior to the
Closing Date.
(d) Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs, and expenses, including reasonable
legal fees and expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
10.3 Indemnification by Buyer. Buyer hereby agrees to indemnify
and hold Seller harmless against and with respect to, and shall reimburse
Seller for:
(a) Subject to the proviso contained in the first
sentence of Section 10.1, any and all losses, liabilities, or damages resulting
from any untrue representation, breach of warranty, or material omission or
nonfulfillment of any covenant by Buyer contained in this Agreement or in any
certificate, Schedule, document, or instrument delivered to Seller under this
Agreement.
(b) Any and all obligations of Seller assumed by Buyer
pursuant to this Agreement.
(c) Any and all losses, liabilities, or damages
contingent or otherwise, 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.
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10.4 Procedure for Indemnification. The procedure for
indemnification shall be as follows:
(a) The party claiming indemnification (the "Claimant")
shall promptly give notice to the party from which indemnification is claimed
(the "Indemnifying Party") of any claim, whether between the parties or brought
by a third party, specifying in reasonable detail the factual basis for the
claim. If the claim relates to an action, suit, or proceeding filed by a third
party against Claimant, such notice shall be given by Claimant within as soon
as practicable after written notice of such action, suit, or proceeding was
given to Claimant.
(b) With respect to claims solely between the parties,
following receipt of notice from the Claimant of a claim, the Indemnifying
Party shall have thirty days to make such investigation of the claim as the
Indemnifying Party deems necessary or desirable. For the purposes of such
investigation, the Claimant agrees to make available to the Indemnifying Party
and/or its authorized representatives the information relied upon by the
Claimant to substantiate the claim. If the Claimant and the Indemnifying Party
agree at or prior to the expiration of the thirty- day period (or any mutually
agreed upon extension thereof) to the validity and amount of such claim, the
Indemnifying Party shall immediately pay to the Claimant the full amount of the
claim. If the Claimant and the Indemnifying Party do not agree within the
thirty-day period (or any mutually agreed upon extension thereof), the Claimant
may seek appropriate remedy at law or equity or under the arbitration
provisions of this Agreement, as applicable.
(c) With respect to any claim by a third party as to
which the Claimant is entitled to indemnification under this Agreement, the
Indemnifying Party shall have the right at its own expense, to participate in
or assume control of the defense of such claim, and the Claimant shall
cooperate fully with the Indemnifying Party subject to reimbursement for
reasonable actual out-of-pocket expenses incurred by the Claimant as the result
of a request by the Indemnifying Party. If the Indemnifying Party elects to
assume control of the defense of any third-party claim, the Claimant shall have
the right to participate in the defense of such claim at its own expense. If
the Indemnifying Party does not elect to assume control or otherwise
participate int he defense of any third party claim, it shall be bound by the
results obtained by the Claimant with respect to such claim.
(d) If a claim, whether between the parties or by a third
party, requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
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(e) The indemnification rights provided in Sections 10.2
and 10.3 shall extend to the shareholders, directors, officers, employees, and
representatives of any Claimant although for the purpose of the procedures set
forth in this Section 10.4, any indemnification claims by such parties shall be
made by and through the Claimant.
(f) Notwithstanding anything in this Agreement to the
contrary, neither party shall indemnify or otherwise be liable to the other
party for any breach of a representation or warranty, or for breach of any
covenant in this Agreement except to the extent the losses, obligations,
liabilities, costs and expenses of such party arising therefrom exceed in the
aggregate Ten Thousand Dollars ($10,000). The provisions of the foregoing
sentence shall not apply to liabilities assumed by either party pursuant to the
adjustments and prorations.
10.5 Specific Performance. The parties recognize that if Seller
breaches this Agreement and refuses to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled, as its sole and exclusive
remedy, to obtain specific performance of the terms of this Agreement. If any
action is brought by Buyer to enforce this Agreement, Seller shall waive the
defense that there is an adequate remedy at law.
10.6 Attorneys' Fees. In the event of a default by either party
which results in a lawsuit or other proceeding for any remedy available under
this Agreement, the prevailing party shall be entitled to reimbursement from
the other party of its reasonable legal fees and expenses.
SECTION 11. MISCELLANEOUS
11.1 Fees and Expenses. Any federal, state, or local sales or
transfer tax arising in connection with the conveyance of the Assets by Seller
to Buyer pursuant to this Agreement shall be paid by Seller. Buyer and Seller
shall each pay one-half of the fee payable to the FCC in connection with the
filing of the application for FCC Consent. Except as otherwise provided in
this Agreement, each party shall pay its own expenses incurred in connection
with the authorization, preparation, execution, and performance of this
Agreement, including all fees and expenses of counsel, accountants, agents, and
representatives, and each party shall be responsible for all fees or
commissions payable to any finder, broker, advisor, or similar person retained
by or on behalf of such party.
11.2 Arbitration. Except as otherwise provided to the contrary
below, any dispute arising out of or related to this Agreement that Seller and
Buyer are unable to resolve by themselves
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shall be settled by arbitration in the District of Columbia by a panel of three
arbitrators. Seller and Buyer shall each designate one disinterested
arbitrator, and the two arbitrators so designated shall select the third
arbitrator. Before undertaking to resolve the dispute, each arbitrator shall
be duly sworn faithfully and fairly to hear and examine the matters in
controversy and to make a just award according to the best of his or her
understanding. The arbitration hearing shall be conducted in accordance with
the commercial arbitration rules of the American Arbitration Association. The
written decision of a majority of the arbitrators shall be final and binding on
Seller and Buyer. The costs and expenses of the arbitration proceeding shall
be assessed between Seller and Buyer in a manner to be decided by a majority of
the arbitrators, and the assessment shall be set forth in the decision and
award of the arbitrators. Judgment on the award, if it is not paid within
thirty days, may be entered in any court having jurisdiction over the matter.
No action at law or suit in equity based upon any claim arising out of or
related to this Agreement shall be instituted in any court by Seller or Buyer
against the other except (i) an action to compel arbitration pursuant to this
Section, (ii) an action to enforce the award of the arbitration panel rendered
in accordance with this Section, or (iii) a suit for specific performance
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) sent by telecopy (with receipt personally confirmed by telephone),
delivered by personal delivery, or sent by commercial delivery service or
registered or certified mail, return receipt requested, (c) deemed to have been
given on the date of personal delivery or the date set forth in the records of
the delivery service or on the return receipt, and (d) addressed as follows:
If to Seller: NGM Television Partners, Limited
c/o X. XxXxxxx Flowers
0000 Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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With a copy Xxxx X. Xxxxxxx, III
(which shall not Xxxxxxx Xxxxxx & Xxxxxxx
constitute notice) to: 0000 X Xxxxxx, X.X., Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxx X. Xxxxxxxx, Esq.
Johnston, Hinesley, Flowers & Xxxxxxx, P.C.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
' Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Buyer: Xx. Xxxxx X. Xxxxxxxxx
Xxxxxxxxx Media, Inc.
00000 Xxxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy Xxxx X. Xxxxx, Xx., Esq.
(which shall not Dow, Xxxxxx & Xxxxxxxxx
constitute notice) to: 0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to any other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
11.3.
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 to a wholly-owned subsidiary or commonly controlled affiliate without
seeking or obtaining Seller's prior approval, provided that such assignment
does not relieve Buyer of its responsibilities hereunder. Upon any permitted
assignment by Buyer or Seller 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 "Seller" herein shall be deemed to be references
to Seller's assignee. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
11.5 Further Assurances. The parties shall take any actions and
execute any other documents that may be necessary or desirable
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to the implementation and consummation of this Agreement, including, in the
case of Seller, any additional bills of sale, deeds, or other transfer
documents that, including, in the case of Seller, any additional bills of sale,
deeds, or other transfer documents that, in the reasonable opinion of Buyer,
may be necessary to ensure, complete, and evidence the full and effective
transfer of the Assets to Buyer pursuant to this Agreement.
11.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED,
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT
REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF).
11.7 Headings. The headings in this Agreement are included for
ease of reference only and shall not control or affect the meaning or
construction of the provisions of this Agreement.
11.8 Gender and Number. Words used in this Agreement, regardless
of the gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine, or neuter, and any other number,
singular or plural, as the context requires.
11.9 Entire Agreement. This Agreement, the schedules, hereto, and
all documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between Buyer and Seller with respect to the subject matter hereof. This
Agreement supersedes all prior negotiations between the parties and cannot be
amended, supplemented, or changed except by an agreement in writing that makes
specific reference to this Agreement and which is signed by the party against
which enforcement of any such amendment, supplement, or modification is sought.
11.10 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 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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11.12 Press Releases. Neither party shall publish any press
release, make any other public announcement or otherwise communicate with any
news media concerning this Agreement or the transactions contemplated hereby
without the prior written consent of the other party; provided, however, that
nothing contained herein shall prevent either party from promptly making all
filings with governmental authorities as may, in its judgment, be required or
advisable in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby, in which case the
other party shall be first notified in writing.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Asset Purchase Agreement as of the day and year first above written.
NGM TELEVISION PARTNERS, LTD.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name:
GEORGIA MOUNTAIN CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------
Title: President
------------------------------
XXXXXXXXX MEDIA, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
------------------------------
Title: President
-----------------------------
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