ASSET PURCHASE AGREEMENT
Between
CENTURY - ML CABLE VENTURE
and
MADIFIDE, INC.
Dated October 9, 1997
ASSET PURCHASE AGREEMENT
Dated October 9, 1997
The parties to this agreement are Century-ML Cable
Venture, a New York joint venture (the "Seller"), and MADIFIDE,
Inc., a Puerto Rico corporation (the "Buyer").
The Seller owns and operates the two radio stations
(the "Stations") and the background music service ("BMS") listed
on schedule 1. Simultaneously with the execution of this
agreement, the Seller and the Buyer are entering into a Time
Brokerage Agreement (the "LMA Agreement") pursuant to which the
Seller will make the facilities of the Stations and BMS available
to the Buyer for broadcast of their respective programming and
will provide the commercial time on the Stations to the Buyer for
sale to advertisers effective as of October 1, 1997 (the
"Effective Date"). The Seller desires to sell to the Buyer
substantially all of the assets used in the operations of the
Stations and BMS and the Buyer desires to purchase those assets,
on the terms and conditions contained in this agreement.
Accordingly, it is agreed as follows:
1. Sale and Purchase of Assets.
1.1 Sale of Assets to Buyer. At the closing,
Seller shall sell and assign to the Buyer, and the Buyer shall
purchase and acquire, all of the business of the Seller relating
to the Stations and BMS and all of the assets of the Seller used
in the operations of the Stations and BMS (excluding only the
assets referred to in section 1.2) as those assets exist on the
Closing Date (as defined in section 3.1). Except as otherwise
provided in section 1.2, the assets of the Stations and BMS to be
sold and assigned (collectively, the "Assets") include, but are
not limited to, the following:
(a) all broadcast licenses (the "FCC
Licenses") for the Stations and BMS issued by the Federal
Communications Commission (the "Commission") and any other
permits and authorizations (and applications for any of them)
relating to the operation of the Stations and BMS, including, but
not limited to, those listed on schedule 1.1(a);
(b) all equipment including computers and
office equipment, transmitting towers, transmitters, supplies,
vehicles, furniture, fixtures and leasehold improvements,
improvements on land being acquired by the Buyer pursuant to
section 1.1(c), any tapes and compact discs owned by the Stations
and BMS, and all other tangible personal property, wherever
located, that is owned by the Seller and used in the operation of
the Stations and BMS, including, but not limited to, the items
listed on schedule 1.1(b);
(c) all real property owned by the Seller
relating to the Stations, including, but not limited to, the
property listed on schedule 1.1(c);
(d) all rights of the Seller under leases
and other agreements relating to the business and operations of
the Stations and BMS, to the extent that those rights relate to
the period after 12:00 Midnight on the Closing Date, including,
but not limited to (i) all agreements relating to the sale of
broadcast and advertising time reflected in the sales projection
report previously delivered to Buyer, (ii) the leases and other
agreements listed on schedules 4.13 and 4.14, (iii) the
agreements relating to the news broadcast network, Noti Uno,
listed on schedule 4.13; and (iv) any other leases and other
agreements relating to the business and operations of the
Stations and BMS that are entered into consistent with the
provisions of section 6.2 (and with the prior written consent of
Buyer) between the date of this agreement and the Closing Date;
(e) all promotional materials, trademarks,
trade names, logos, copyrights, whether or not registered (and
all issued registrations and pending applications for
registration of any of them), jingles, slogans and other tangible
and intangible personal property relating to the Stations and BMS
(including, but not limited to, the trademarks, trade names and
logos listed on schedule 1.1(e) and all of the Seller's rights to
use the call letters "WUNO(AM)" and "WFID-FM"), together with the
good will of the business associated with those trademarks, trade
names, logos and copyrights;
(f) all of the Seller's rights in connection
with any "barter" transactions and "trade" agreements relating to
the Stations and BMS;
(g) all of the Seller's rights under
manufacturers' and vendors' warranties relating to items included
in the Assets and all similar rights against third parties
relating to items included in the Assets; and
(h) all files, including, but not limited
to, public files, logs and business records of every kind
relating to the operations of the Stations and BMS, including,
but not limited to, programming information and studies,
technical information and engineering data, news and advertising
studies or consulting reports, sales correspondence, lists of
advertisers, promotional materials, and credit and sales records.
1.2 Excluded Assets. The following assets used
in the operations of the Stations and BMS shall be retained by
the Seller and shall not be sold or assigned to the Buyer:
(a) all cash, bank accounts, certificates of
deposit, commercial paper, treasury bills and notes and all other
marketable securities as of 12:00 Midnight on the Closing Date;
(b) all accounts receivable (the "Accounts
Receivable") of the Stations and BMS for broadcast time and
services provided by the Seller prior to the Effective Time (as
defined below) (except that any amounts included in accounts
receivable with respect to "barter" transactions or "trade"
agreements shall not be excluded from the sale);
(c) any lease or other agreement as to which
consent to assignment is required but cannot be obtained;
(d) the account books of original entry and
general ledgers and all partnership records of the Seller,
including tax returns and transfer books;
(e) any lease or other agreement required to
be listed on schedule 4.13 or 4.14 and not listed on that
schedule;
(f) any rights under "trade" agreements with
the cable system owned by the Seller; and
(g) the assets listed on schedule 1.2(g) and
any other assets of the Seller not used in connection with the
operation of the Stations and BMS.
2. Purchase Price.
2.1 Amount and Payment of Consideration. As full
consideration for the Assets, including the covenant not to
compete pursuant to the Non-competition Agreement referred to in
section 8.3, at the closing the Buyer shall (a) pay to Seller, in
accordance with section 2.2, a purchase price of $11,537,500,
subject to adjustment as provided in section 2.5 ; and (b) as
sume, and agree to pay, perform and discharge (subject to the
provisions of the LMA Agreement and the apportionment provisions
of section 2.5) all of the obligations of the Seller relating to
the operations of the Stations and BMS that arise after 12:00
Midnight on the Closing Date under those leases and other
agreements relating to the operations of the Stations and BMS
assigned to the Buyer pursuant to sections 1.1(d) and 1.1(f)
(except as provided in section 6.8 herein).
2.2 Payment of Purchase Price. The aggregate
purchase price for the Assets shall be paid as follows:
(a) At the closing, the Buyer shall deliver
to Banco Santander (the "Escrow Agent") an amount equal to
$593,125 (the "Indemnity Escrow Amount"), to be held by the
Escrow Agent in an interest bearing account pursuant to the terms
of an escrow agreement (the "Indemnity Escrow Agreement") in the
form of exhibit 2.2(a) which shall be executed on the Closing
Date. The Indemnity Escrow Amount shall be paid in accordance
with the terms of such escrow agreement to (i) the Buyer if it is
determined that the Buyer is entitled to indemnification payments
under section 9.2 (a) of this agreement, or (ii) the Seller to
the extent the Buyer is not determined to be entitled to any such
payments.
(b) If the application (the "Application")
granted by the Commission to increase the authorized nighttime
broadcast power for one of the Stations ("WUNO(AM)") from 1 kW to
2.30kW does not become final prior to the closing, then, at the
closing, Buyer shall deliver to the Escrow Agent an amount equal
to $296,563 (the "Broadcast Power Escrow Amount"), to be held by
the Escrow Agent until December 31, 1998 in an interest bearing
account pursuant to the terms of an escrow agreement (the
"Broadcast Power Escrow Agreement") in the form of exhibit 2.2(b)
which shall be executed on the Closing Date. The Broadcast Power
Escrow Amount shall be paid in accordance with the terms of such
escrow agreement to (i) the Seller if the Application becomes
final prior to December 31, 1998, less $50,000, or Buyer's actual
legal, engineering and other costs, if any, associated with the
Application, whichever is less, which amount shall be paid to
Buyer or (ii) the Buyer if the Application has not become final
prior to December 31, 1998. Any prosecution of the Application
before the Commission shall proceed in accordance with section
6.11.
(c) At the closing, or on December 31, 1997,
whichever is earlier, the Buyer (or if on December 31, 1997, the
Seller) shall deliver to the Escrow Agent the Volume Discount
Escrow Amount as provided in section 6.4(d) and at the Effective
Time the Seller shall deliver the Employee Benefit Escrow Amount
as provided in section 6.8(d).
(d) At the closing, the Buyer shall deliver
to the Seller, by wire transfer of immediately available funds or
by delivery of a bank or certified check in immediately available
funds, an amount which, together with the Indemnity Escrow
Amount, the Broadcast Power Escrow Amount (if any), the Volume
Discount Escrow Amount (if funded by Buyer) and the Employee
Benefit Escrow Amount (if funded by Buyer), equals the purchase
price of $11,537,500.
2.3 Deposit; Seller's Liquidated Damages. Upon
execution of this agreement, the Buyer shall deliver to the
Escrow Agent a letter of credit for $1,300,000 (the "Seller's
Liquidated Damages Escrow Amount"), to be held by the Escrow
Agent pursuant to the terms of an escrow agreement in the form of
exhibit 2.3 which is being executed simultaneously with the
execution of this agreement and subject to the following:
(a) If the purchase of the Assets under this
agreement is not consummated as a result of a material breach by
the Buyer of any of its material obligations under this agreement
(and the Seller has not breached any of its material obligations
under this agreement), the Seller shall be entitled to the
Seller's Liquidated Damages Escrow Amount (together with any
interest thereon) to compensate the Seller as liquidated damages
resulting to the Seller from such breach, and consequently Buyer
shall not be subject to any further liabilities as a result
thereof.
(b) If the purchase of the Assets under this
agreement is not consummated due to the nonfulfillment of any of
the conditions in section 7.1 or for any other reason except the
Buyer's default in the performance of any of its material
obligations under this agreement, the Seller shall not be
entitled to the Seller's Liquidated Damages Escrow Account (or
any interest thereon) and, promptly after the termination of this
agreement, the Seller's Liquidated Damages Escrow Account
(together with any interest thereon) shall be paid by the Escrow
Agent to the Buyer.
2.4 Limitation on Assumption of Liabilities.
Except as provided in section 2.1(b) and in the LMA Agreement,
Buyer shall not assume, and shall not pay, perform or discharge,
any liabilities, contingent or otherwise, or any obligations of
the Seller relating to the Stations and BMS, and the Seller shall
pay and perform any such liabilities or obligations.
2.5 Apportionment.
The Seller shall be entitled to all income
earned or accrued and shall be responsible for all liabilities
and obligations incurred or payable in connection with the
operations of the Stations and BMS through 12:00 Midnight on the
day preceding the Effective Date of the LMA Agreement (the
"Effective Time") and the Buyer shall be entitled to all income
earned or accrued and, subject to the provisions of section 2.4,
shall be responsible for all liabilities and obligations incurred
or payable in connection with the operations of the Stations and
BMS after the Effective Time. All overlapping items of income or
expense shall be apportioned (based on the actual number of days
before and after the Effective Time) between the Seller and the
Buyer, as of the Effective Time, in accordance with generally
accepted accounting principles. Items to be apportioned include,
but are not limited to, the following:
(1) advance payments received from
advertisers prior to the Effective Time for services to be
rendered in whole or in part after the Effective Time;
(2) prepaid expenses arising from payments
made for services prior to the Effective Time if all or part of
the services have not been received or used prior to the
Effective Time (for example, rents paid in advance for a rental
period extending beyond the Effective Time);
(3) liabilities, customarily accrued,
arising from expenses incurred but unpaid as of the Effective
Time (excluding severance pay, vacation pay, sick pay or similar
items, which are covered by section 6.8, and employee claims and
other liabilities otherwise specifically provided for in this
agreement); frequency discounts; utility services; rent
(including property taxes payable under leases assumed by the
Buyer); property taxes relating to real property interests
assigned to the Buyer; sales commissions; various business and
professional services; and licensing fees, including prior years'
adjustments; and
(4) personal property taxes and utility
charges related to the Stations and BMS.
2.6 Determination of Apportionments. Prior to
the closing, the Seller shall estimate all apportionments
pursuant to section 2.5 and the purchase price payable at the
closing pursuant to section 2.2 shall be adjusted based on the
estimate. Within 60 days after the Closing Date, the Seller
shall determine all apportionments pursuant to section 2.5 (based
on the actual number of days before and after the Effective Time)
and shall give notice to Buyer of its determination and deliver a
statement of its determination to the Buyer (which statement
shall set forth in reasonable detail the basis for those
determinations); the Buyer shall have 30 days after the notice
from Seller to review the Seller's determination, and within 10
days after such 30-day period the Buyer shall notify the Seller
of any dispute with the Seller's determination and the Buyer
shall pay to the Seller, or the Seller shall pay to the Buyer, as
the case may be, the net amount due as a result of the final
determination of the apportionments (or, if there is any dispute,
the undisputed amount). If the Buyer disputes the Seller's
determinations, the parties shall confer with regard to the
matter and an appropriate adjustment and payment shall be made as
agreed upon by the parties (or, if they are unable to resolve the
matter within 30 days after Buyer's notice to Seller, a firm of
independent certified public accountants shall be designated by
the parties, which firm's decision on the matter shall be binding
and whose fees and expenses shall be borne 50% by the Seller and
50% by the Buyer). If the parties fail to agree on the
accountants, the accountants shall be KPMG Peat Marwick LLP.
2.7 Allocation of Purchase Price. Prior to the
closing, Buyer and Seller shall negotiate in good faith an
allocation of the purchase price for the Assets among the Assets.
If the Buyer and the Seller are unable to agree upon an
allocation of the purchase price for the Assets, the allocation
shall be determined by a firm of independent certified public
accountants designated by the parties. If the parties fail to
agree on the accountants, the accountants shall be KPMG Peat
Marwick LLP, whose fees shall be borne 50% by the Seller and 50%
by the Buyer. Notwithstanding the foregoing, the parties agree
that $1,000,000 of the purchase price is allocable to the
covenant not to compete in the Non-competition Agreement referred
to in section 8.3 and that $1,100,000 of the purchase price is
allocable to the real property listed in Schedule 4.4(a).
3. Closing.
3.1 Date of Closing. The closing under this
agreement shall take place at such place as may be mutually
agreeable to the Buyer and the Seller on the fifth business day
after the conditions specified in sections 7.1(c) and 7.2(c) have
been fulfilled (or waived), or such other date as the parties may
mutually agree upon. The date on which the closing is held is
referred to in this agreement as the "Closing Date." At the
closing, the parties shall execute and deliver the documents
referred to in section 8.
3.2 Outside Date for Closing. If the closing has
not occurred by June 30, 1998, either the Seller or the Buyer may
terminate this agreement by notice to the other; upon such
termination, neither of the parties shall have any liability of
any kind arising out of this agreement other than for any
liability resulting from its breach of this agreement prior to
termination. If the closing is postponed pursuant to section 11
of this agreement, the date referred to in the previous sentence
shall be extended by the period of the postponement.
4. Representations and Warranties by the Seller. The
Seller represents and warrants to the Buyer as follows:
4.1 The Seller's Organization and Authority. The
Seller is a general partnership duly organized and validly
existing under the law of New York and has the full power and
authority under New York law and its partnership agreement to
enter into and to perform this agreement and to own and operate
the Stations and BMS in Puerto Rico.
4.2 Authorization of Agreement. The execution,
delivery and performance of this agreement by the Seller have
been duly authorized by all necessary partnership action of the
Seller and this agreement constitutes a valid and binding
obligation of the Seller enforceable against it in accordance
with its terms, except as may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditors' rights in general and subject to general principles of
equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
4.3 Consents of Third Parties. Subject to
receipt of the consents and approvals referred to in schedule
4.3, the execution, delivery and performance of this agreement by
the Seller will not (i) conflict with the partnership agreement
of the Seller and will not conflict with, or result in a breach
or termination of, or constitute a default under, any lease,
agreement, commitment or other instrument, or any order, judgment
or decree, to which the Seller is a party or by which the Seller
is bound or to which any of the Assets is subject; (ii)
constitute a violation by the Seller of any law applicable to the
Seller; or (iii) result in the creation of any lien, claim,
charge or encumbrance ("Lien") upon any of the Assets. No
consent, approval or authorization of, or designation,
declaration or filing with, any governmental authority is
required on the part of the Seller in connection with the
execution, delivery and performance of this agreement, except for
the filings referred to in section 6.1.
4.4 Title to Assets.
(a) All real property owned by the Seller
included in the Assets (the "Real Property") is listed in
schedule 4.4(a). Except as listed in schedule 4.4(a), Seller has
not received any notice that there is any material violation of
any laws, ordinances or regulations with respect to any Real
Property. Except as set forth on schedule 4.4(a) and except
for property leased pursuant to leases and agreements listed on
schedule 4.13, the Seller has, and at the closing the Buyer will
receive, valid title to all of the personal property and
intangible property included in the Assets, free and clear of any
Lien (except for the lien, if any, of current taxes not yet due
and payable). The Seller has, and will convey to the Buyer on
the Closing Date, good and marketable fee simple title to the
Real Property, free and clear of any Liens, except as set forth
on schedule 4.4(a) and except for the lien, if any, of current
taxes not due and payable and for imperfections of title and
easements that will not in any material respect adversely affect
or impair the Buyer's continued use of the property or detract in
any material respect from the value of the property to the Buyer
(collectively "Permitted Liens").
(b) No condemnation proceeding is in
existence concerning any of the Real Property; there is no
existing notice covering future condemnation; and Seller has no
reason to believe that the Real Property will be condemned.
(c) Except as disclosed in schedule 4.4(a),
the improvements on the Real Property do not violate in any
material respect the provisions of any applicable building codes,
fire regulations, building restrictions, or other governmental
ordinances, orders or regulations. Except as disclosed in
schedule 4.4(a), the Real Property is zoned so as to permit the
present commercial uses of the Real Property. Except as
disclosed in schedule 4.4(a), there are no outstanding variances
or special permits affecting the Real Property or the uses
thereof. All of the Real Property (including all improvements
and fixtures thereon and appurtenances thereto) is in reasonably
good condition and repair, ordinary wear and tear in normal usage
excepted, and is adequate and suitable in all material respects
in accordance with general industry practices for the purposes
for which it is currently used.
(d) The transmitting facilities of the
Stations, including the towers, antennae, guy line, anchors,
ground systems and all other related buildings, structures and
appurtenances, are located entirely within the confines of the
Real Property.
(e) To the best of Seller's knowledge, all
utilities required for the operation of the Real Property and
improvements thereon either enter the Real Property through
adjoining public streets, or if the utilities pass through
adjoining private land, the utilities do so in accordance with
valid easements.
(f) To the best of Seller's knowledge, there
are not now any notices of violations of law or ordinances,
orders or requirements noted in or issued by any federal
department or any department of the Commonwealth of Puerto Rico
or the applicable city or any prosecutions in any federal,
Commonwealth or city court on account thereof, affecting the Real
Property.
(g) Except as set forth on schedule 4.4(a),
the Real Property is freely accessible directly from public
streets, or by the use of adjoining private land, which access
through the private land is done in accordance with valid public
or private easements, and any such private easements are now in
full force and effect, and conveyable to Buyer as a part of the
Real Property.
4.5 FCC Licenses. The Seller holds the FCC
Licenses and all other material permits and authorizations
necessary for or used in the operations of the Stations and BMS,
and each of the FCC Licenses is, and all such permits and
authorizations are, in full force and effect. Schedule 1.1(a)
contains a true and complete list of the FCC Licenses currently
in effect and all such permits and authorizations (showing, in
each case, the expiration date). Except as set forth on schedule
4.5, no application, action or proceeding is pending for the
renewal or modification of any of the FCC Licenses or any of such
permits or authorizations, and no application, action or
proceeding is pending or, to the best of Seller's knowledge,
threatened that may result in the denial of the application for
renewal, the revocation, modification, nonrenewal or suspension
of any of the FCC Licenses or any of such permits or
authorizations, the issuance of a cease-and-desist order, or the
imposition of any administrative or judicial sanction with
respect to the Stations or BMS that may materially adversely
affect the rights of the Buyer under any such FCC Licenses,
permits or authorizations.
4.6 Call Letters. The Seller has the right to
the use of the call letters "WUNO(AM)" and "WFID-FM," pursuant to
the rules and regulations of the Commission.
4.7 Operation of the Stations and BMS. The
Stations and BMS are being operated in all material respects in
accordance with the FCC Licenses and in compliance with the
Communications Act of 1934 and the rules and regulations
thereunder.
4.8 Financial Statements. The Seller has pre
viously delivered to the Buyer the unaudited balance sheets of
the Stations and BMS as of December 31, 1995 and December 31,
1996 and the unaudited balance sheets of the Stations and BMS as
of August 31, 1996 and August 31, 1997, and the related
statements of operations for the years and eight-month periods
then ended. Except as set forth on schedule 4.8, all of those
financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent
basis, are in accordance with Seller's books and records, and
fairly present in all material respects the financial position
and the results of operations of the Stations and BMS as of the
dates and for the periods indicated.
4.9 Absence of Certain Changes. Since August 31,
1997 the Seller has operated the business of the Stations and BMS
in the usual and ordinary course and substantially consistent
with its past practice with respect to the Stations and BMS, and,
except as set forth on schedule 4.9, through the date of this
agreement:
(a) There has been no material adverse
change in the business or operations of the Stations and BMS,
except that the revenues and operating cash flow of the Stations
and BMS for 1997 to date are approximately 9% and 15%,
respectively, lower than for the comparable period of 1996;
(b) The Seller has not, with respect to the
Stations and BMS, entered into any transaction or incurred any
liability or obligation that is material to the business or
operation of the Stations and BMS except in the ordinary course
of its business consistent with past practice;
(c) The Seller has not sold or transferred
any of the assets of the Stations and BMS other than in the
ordinary course of business consistent with past practice;
(d) The Seller has not incurred any
indebtedness with respect to the Stations and BMS other than
indebtedness to trade creditors incurred in the ordinary course
of business consistent with past practice; and
(e) The Seller has not granted or agreed to
grant any increase in any rate or rates of salaries or
compensation or other benefits or bonuses payable to employees of
the Stations and BMS, except for increases in accordance with the
Seller's past employment practices, and has not granted or agreed
to effect any changes in the Seller's management personnel,
policies or employee benefits.
4.10 Tangible Property. Except as set forth on
schedule 4.10, all equipment and other tangible assets to be sold
to Buyer pursuant to this agreement is in reasonably good
operating condition and in reasonably good condition of
maintenance and repair. All items of transmitting and studio
equipment permit the Stations and BMS and any auxiliary
facilities to operate in all material respects in accordance with
the terms of the FCC Licenses, the rules and regulations of the
Commission, and all other applicable federal, Commonwealth and
local statutes, ordinances, rules and regulations.
4.11 Intangible Assets. Schedule 1.1(e) contains
a complete list of the trademarks, trade names, logos, jingles
and slogans used by the Seller in the operation of the Stations
and BMS. Except as set forth on Schedule 4.11, the Seller owns,
free and clear of any Liens, each of the trademarks, trade names,
logos, jingles and slogans listed on schedule 1.1(e). The Seller
is not operating the Stations and BMS in a manner that infringes
in any material respect any patent, copyright or trademark of any
third party or otherwise violates in any material respect the
rights of any third party, and no claim has been made or
threatened against it alleging any such violation. To the best
of Seller's knowledge, there has been no material violation by
others of any right of the Seller in any trademark, trade name,
logo, jingle or slogan used in the operation of the Stations and
BMS.
4.12 Litigation; Compliance with Laws. Except as
set forth on schedule 4.12, there is no claim, litigation,
proceeding or governmental investigation pending or, to the best
of Seller's knowledge, threatened, or any order, injunction or
decree outstanding, against the Seller relating to the Stations
or BMS or the Assets, which if adversely determined might (i)
have a material adverse effect on the operations of the Stations
or BMS, (ii) materially delay approval by the Commission of the
transactions contemplated by this agreement, or (iii) prevent the
consummation of the transactions contemplated by this agreement.
Except as set forth on schedule 4.12, to the best of the Seller's
knowledge, the Seller is not in violation of any law, regulation
or ordinance or any other requirement of any governmental body or
court with respect to the operation of the Stations and BMS,
which violation would have a material adverse effect upon the
operations or business of the Stations or BMS, and no notice has
been received by the Seller alleging any such violation. Seller
is not in default with respect to any order, writ, injunction or
decree of any Federal, Puerto Rico, municipal or other
governmental department in any case, domestic or foreign.
4.13 List of Agreements, etc. Schedules 4.13 and
4.14 together contain, with respect to the Stations and BMS, a
complete list of: (a) all agreements for the purchase of
materials, supplies or equipment, other than agreements that were
entered into in the ordinary course of business and involve an
expenditure by the Seller of less than $10,000 for any one
commitment or two or more related commitments; (b) all notes and
agreements relating to any indebtedness of the Seller that is
secured by any of the Assets, other than the Note Agreement dated
as of December 1, 1992 (the "Note Agreement"); (c) all leases or
other rental agreements under which the Seller is either lessor
or lessee related to the operations or business of the Stations
and BMS; (d) all "barter" and "trade" agreements; (e) all
collective bargaining agreements; and (f) all other agreements
(written or oral) that require payment by the Seller of more than
$10,000 individually (or $30,000 in the aggregate) or cannot be
terminated by the Seller on less than 30 days notice without
liability. True and complete copies of all written leases,
commitments and other agreements referred to on schedules 4.13
and 4.14 have been delivered to the Buyer.
4.14 Agreements Regarding Employees. Except as
set forth in schedule 4.14, the Seller is not a party to or bound
by any fringe benefit or other non-cash compensation plan, or any
pension, thrift, annuity, retirement, savings, profit sharing or
deferred compensation plan or agreement, or any bonus, vacation,
holiday, sick leave, group insurance, health or other personal
insurance or other incentive or benefit agreement, plan or
arrangement. Except as set forth on schedule 4.14, the Seller
does not have any severance policy and no employee of the Station
is entitled to any severance payment, either by law or by
agreement, upon the termination of his or her employment. Except
as set forth on schedule 4.14, no employee of the Stations or BMS
is represented by any union or other collective bargaining agent
and there are no collective bargaining or other labor agreements
with respect to any employee of the Stations or BMS.
4.15 Status of Agreements. All leases and other
agreements to be assumed by the Buyer were entered into in the
ordinary course of the business of the Stations and BMS. Each of
the agreements and leases referred to in section 4.13 and each of
the benefit agreements, plans or arrangements referred to in
section 4.14 is presently in full force and effect in accordance
with its terms and, except as set forth on schedule 4.15, the
Seller is not in material default, and, to the best of the
Seller's knowledge, no other party is in material default under
any agreement referred to in section 4.13 or 4.14. No party to
any of the leases and other agreements referred to in sections
4.13 and 4.14 has made, asserted or has any defense, setoff or
counterclaim under any of those agreements or has exercised any
option granted to it to cancel or terminate its agreement, to
shorten the term of its agreement, or to renew or extend the term
of its agreement and the Seller has not received any notice to
that effect.
4.16 Insurance. Schedule 4.16 contains a
complete list of all of the Seller's insurance policies relating
to the operation of the Stations and BMS specifying the policy
limit, type of coverage, location of the property covered, annual
premium, premium payment date and expiration date of each of the
policies. Seller has not been refused insurance by any carrier
during the past five years.
4.17 Labor Matters. Except as set forth on
schedule 4.17, with respect to the Stations and BMS (a) there is
no unfair labor practice charge or complaint against the Seller
pending before the National Labor Relations Board, Department of
Labor of the Commonwealth of Puerto Rico or any similar Federal
or local agency, any state labor relations board or any court or
tribunal and, to the best of Seller's knowledge, none is or has
been threatened; (b) there is no labor strike, dispute, request
for representation, slowdown or stoppage actually pending against
or affecting the Seller and, to the best of Seller's knowledge,
none is or has been threatened; (c) no grievance which might have
a material adverse effect on the conduct of the operations of the
Stations or BMS taken as a whole or any arbitration proceeding
arising out of or under any collective bargaining agreement is
pending and, to the best of Seller's knowledge, none is or has
been threatened; (d) the businesses of the Stations and/or BMS
are in compliance in all material respects with all applicable
laws respecting employment and employment practices, terms and
conditions of employment and wages and hours, and are not engaged
in any unfair labor practice; (e) there is no pending, or, to the
best knowledge of Seller, threatened, material grievance, and (f)
no material charges with respect to or relating to the operation
of the Stations or BMS are pending before the Equal Employment
Opportunity Commission or any state, Commonwealth or local agency
responsible for the prevention of unlawful employment practices.
Seller has conducted its business in compliance in all material
respects with all Federal and local laws, rules and regulations
related to or affecting employment and employment practices,
including terms and conditions of employment and wages and hours.
Seller has complied in all material respects with laws and
regulations of, and has timely paid all workmen's compensation
insurance premiums to, the State Insurance Fund Administration,
and Seller has timely paid any and all payments for its employees
with respect to payroll withholding taxes and any other salary
withholding obligation, vacation time, Christmas bonus and any
other payment which such employees were entitled to receive
pursuant to the law or otherwise for or related to the period
since the date of employment by Seller of such employees.
Notwithstanding anything to the contrary herein, Seller shall be
responsible for all obligations as employer to all its employees
(with the exception of termination compensation to Covered
Employees (as defined in section 6.8 hereto) for which Buyer will
be responsible) regarding any claim that may arise under any
applicable labor or labor related law or regulation to all
employees employed by Seller during the period of their
employment by Seller.
4.18 Environmental Matters. With respect to (i)
the real property owned or leased by Seller and used exclusively
in the operations of the Stations and BMS or (ii) the operations
of the Stations and BMS:
(a) To the best of Seller's knowledge,
Seller and all of the real property is in compliance in all
material respects with all federal, state and local laws relating
to pollution, the protection of human health or the environment,
including, but not limited to, laws relating to emissions,
discharges, releases or threatened releases of Materials of
Environmental Concern, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern.
"Materials of Environmental Concern" means chemicals, pollutants,
contaminants, wastes, toxic substances, petroleum and petroleum
products.
(b) To the best of Seller's knowledge, there
are no past or present actions, activities, circumstances,
conditions, events or incidents, including, but not limited to,
the release, emission, discharge or disposal of any Material of
Environmental Concern, that could form the basis of any material
claim against, or any material violation by, Seller or either
Station or BMS (or, after the closing, the Buyer).
(c) Except as set forth on schedule 4.18, to
the best of Seller's knowledge, (1) there are no underground
storage tanks located on the real property owned or leased by
Seller, (2) there is no asbestos contained in or forming part of
any building, building component, structure or office space owned
or leased by Seller, (3) no polychlorinated biphenyls (PCBs) are
used or stored at any real property owned or leased by Seller,
(4) none of the electrical equipment located at the real property
owned or leased by Seller contains any PCBs, and (5) there are no
on-site or off-site locations where Seller has stored, disposed
or arranged for the disposal of Materials of Environmental
Concern.
4.19 ERISA. Schedule 4.19 lists each "employee
benefit plan," as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")
sponsored or maintained by the Seller, the Stations or BMS for
the benefit of employees of the Stations or BMS.
4.20 Commission Reports. All material returns,
reports and statements required to be filed by the Seller with
the Commission relating to the Stations and BMS have been filed
and complied with and are complete and correct in all material
respects as filed.
4.21 Finders, Brokers. Neither Seller nor anyone
acting on its behalf has taken any action that, directly or
indirectly, would obligate Buyer to anyone acting as broker,
finder, financial advisor or in any similar capacity in
connection with this agreement or any of the transactions
contemplated hereby.
4.22 Ordinary Course of Business. Seller has
continued to conduct and is currently conducting the operations
of the business of the Stations and of BMS in substantially the
same manner as they were conducted in 1996.
4.23 Tax and Other Returns or Filings. All
material tax returns, reports, statements and other similar
filings required to be filed by Seller with respect to any and
all Puerto Rico, federal, state, local and foreign taxes,
assessments, interest, penalties, deficiencies, fees and other
governmental charges or impositions relating to the operations of
the Stations and BMS (the "Tax Returns") (including without
limitation all income tax, unemployment compensation, social
security, payroll, disability, sales and use, excise, privilege,
property, ad valorem, franchise, license and any other tax or
similar governmental charge or imposition under the laws of
Puerto Rico, the United States or any state of or municipal
and/or political subdivision thereof or any foreign country or
political subdivision thereof relating to the operations of the
Stations and BMS) (the "Taxes") have been filed or will be filed
on time with the appropriate governmental agencies in all
jurisdictions in which such Tax Returns are required to be filed,
and all such Tax Returns properly reflect or will properly
reflect the liabilities of Seller for Taxes, for the periods,
property or events covered thereby. All material Taxes,
including without limitation those which are called for by the
Tax Returns, or heretofore claimed to be due by any taxing
authority from Seller with respect to the operations of the
Stations or BMS have been properly accrued or paid. Seller has
not received any notice of assessment or proposed assessment in
connection with any Tax Returns, and there are no pending tax
examinations or tax claims asserted against Seller with respect
to the operations of the Stations or BMS or any of the Assets.
Seller has not extended or waived the application of any statute
of limitations of any jurisdiction regarding the assessment or
collection of any Taxes. Except as listed in schedule 4.23,
there are no tax liens on any of the Assets. Seller has made or
will make all material deposits required by law to be made with
respect to withholding and other employment taxes.
4.24 Compliance with Law; Authorizations. Except
as indicated in schedule 4.24, Seller is in compliance in all
material respects with each law, ordinance or governmental rule
or regulation to which Seller's operations of the Stations and
BMS and/or the Assets are subject (the "Regulations"). Seller
owns, holds, possesses or lawfully uses in the operation of the
businesses of the Stations and of BMS all material franchises,
licenses, permits and other authorizations (the "Authorizations")
which are necessary for it to conduct the same as they are
currently being conducted or for the use and ownership of the
Assets. All of the Authorizations are listed in schedule 4.24.
Seller, to the best of its knowledge, is not in default nor has
it received any notice or claim of default with respect to any
Authorizations. To the best of Seller's knowledge, all of the
Authorizations should be renewable by Seller by their terms or in
the ordinary course of business without the need to comply with
any special qualification procedures or to pay any amount other
than routine filing fees. Seller shall reasonably cooperate with
Buyer in connection with Buyer's application for the transfer,
renewal or issuance of any Authorization, provided that Seller's
cooperation shall not be deemed to include or require actual
expenditure of funds by Seller.
4.25 Utility Services. The water, telephone,
electric and sewer utility services currently available to the
Real Property are adequate for the present use of the Real
Property in the conduct of the businesses of the Stations and of
BMS, and Seller knows of no condition that may result in the
termination of the present access from the Real Property to such
services.
50 Representations and Warranties by the Buyer. The
Buyer represents and warrants to the Seller as follows:
5.1 The Buyer's Organization and Authority. The
Buyer is a corporation duly organized and validly existing under
the law of the Commonwealth of Puerto Rico and has the full power
and authority to enter into and perform this agreement and to own
and operate the Stations and BMS.
5.2 Authorization of Agreement. The execution,
delivery and performance of this agreement by the Buyer have been
duly authorized by all necessary action of the Buyer and this
agreement constitutes a valid and binding obligation of the Buyer
enforceable against it in accordance with its terms, except as
may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights in general and
subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
5.3 Consents of Third Parties. The execution,
delivery and performance of this agreement by the Buyer will not
(a) conflict with the Buyer's certificate of incorporation or by-
laws and will not conflict with or result in the breach or
termination of, or constitute a default under, any lease,
agreement, commitment or other instrument, or any order, judgment
or decree, to which the Buyer is a party or by which the Buyer is
bound or (b) constitute a violation by the Buyer of any law
applicable to it. No consent, approval or authorization of, or
designation, declaration or filing with, any governmental
authority is required on the part of the Buyer in connection with
the execution, delivery and performance of this agreement, except
for the filings referred to in section 6.1.
5.4 Litigation. There is no claim, litigation,
proceeding or governmental investigation pending or, to the best
of the Buyer's knowledge, threatened, or any order, injunction or
decree outstanding, against the Buyer or any of its affiliates
that would prevent the consummation of the transactions
contemplated by this agreement.
5.5 Buyer's Qualification. To the best of
Buyer's knowledge, it is legally, financially and otherwise
qualified under the rules and regulations of the Commission and
the Communications Act of 1934, as amended, to become the owner,
operator and licensee of the Stations and BMS.
5.6 Finders, Brokers. Except as provided in
section 12.2, neither Buyer nor anyone acting on its behalf has
taken any action that, directly or indirectly, would obligate
Seller to anyone acting as broker, finder, financial advisor or
in any similar capacity in connection with this agreement or any
of the transactions contemplated hereby.
60 Further Agreements of the Parties.
6.1 Filings. As soon as practicable, but in no
event later than five days after the date of this agreement, the
parties shall file with the Commission an application requesting
consent to the transactions contemplated by this agreement; the
parties shall with due diligence take all reasonable steps
necessary to expedite the processing of the application and to
secure such consent or approval. Each party shall bear its own
costs and expenses (including the fees and disbursements of its
counsel) in connection with the preparation of the portion of the
application to be prepared by it and in connection with the
processing of that application. All filing and grant fees
relating to the transfer of the FCC Licenses, if any, paid to the
Commission, shall be split equally between Buyer and Seller.
6.2 Operations of the Stations and BMS. From the
date of this agreement through the Closing Date, subject to the
terms of the LMA Agreement:
(a) The Seller shall operate the business of
the Stations and BMS in the usual and ordinary course and
substantially consistent with past practices and in substantial
conformity with (i) the FCC Licenses, the Communications Act of
1934, and the rules and regulations of the Commission, and (ii)
all other material laws, ordinances, regulations, rules or orders
relating to the operations of the Stations and BMS;
(b) The Seller shall use reasonable efforts,
consistent with its past practices, (i) to preserve the business
organization of the Stations and BMS intact and to preserve the
goodwill and business of the advertisers, suppliers and others
having business relations with the Stations and BMS, (ii) to
retain the services of the employees of the Stations and BMS as
may be agreed upon between Buyer and Seller, and (iii) to
preserve all trademarks, trade names, service marks and
copyrights and related registrations of the Stations and BMS, and
all slogans and logos, owned by them or in which they have any
rights;
(c) The Seller shall not, except in the
ordinary course and substantially consistent with past practice,
(i) enter into any transaction or incur any liability or
obligation that is material to the business or operations of the
Stations or BMS or (ii) sell or transfer any of the assets
relating to the Stations or BMS, other than assets that have worn
out or been replaced with other assets of equal or greater value
or assets that are no longer needed in the operation of the
Stations or BMS;
(d) The Seller shall not, except with the
Buyer's prior written approval, (i) enter into or renew any lease
or other agreement relating to the Stations or BMS that, if
entered into prior to the date of this agreement, would have been
required to be included on schedule 4.13 or 4.14 (or that would
require receipt of a consent or approval required to be included
on schedule 4.3), (ii) enter into any new time sale agreement for
the Stations or BMS, (iii) cause or take any action to allow any
material lease or other agreement relating to the Stations or BMS
to lapse (other than in accordance with its terms), to be
modified in any adverse respect, or otherwise to become impaired
in any material manner, (iv) grant or agree to grant any general
increases in the rates of salaries or compensation payable to
employees of the Stations or BMS except for increases to be given
consistent with past practices, (v) grant or agree to grant any
specific bonus or increase to any executive or management
employee of the Stations or BMS whose total annual compensation
after the increase would be at an annual rate in excess of
$50,000 except in the ordinary course of business and consistent
with past practices, or (vi) provide for any new pension,
retirement or other employment benefits for employees of the
Stations or BMS or any increase in any existing benefits,
establish any new employee benefit plan or amend or modify any
existing employee benefit plan, or otherwise incur any obligation
or liability under any employee benefit plan materially different
in nature or amount from obligations or liabilities incurred
during similar periods in prior years;
(e) The Seller shall (i) maintain all of its
assets relating to the Stations and BMS in customary repair,
maintenance and condition, except to the extent of normal wear
and tear, and repair or replace, consistently with past practice
and subject to the provisions of section 11 hereof, any asset
that may be damaged or destroyed, and (ii) maintain or cause to
be maintained insurance on the assets and business of the
Stations and BMS as described in section 4.16; and
(f) Seller agrees that it will keep in
effect until the Closing Date, without reduction in amount unless
a material increase in premium is commanded, all insurance
coverages maintained by Seller with respect to the business of
the Stations and/or BMS, provided however, that the above
provision shall not be deemed to impede any carrier from
exercising any legal right which it may have to reduce or
withdraw any coverage it may have granted originally under the
particular policy.
6.3 No Control. Subject to the terms of the LMA
Agreement and section 6.2 of this agreement, (a) between the
date of this agreement and the Closing Date, the Buyer shall not,
directly or indirectly, control, supervise or direct, or attempt
to control, supervise or direct, the operations of the Stations
or BMS, and (b) such operations shall be solely the
responsibility of the Seller and shall be in its complete
discretion.
6.4 Accounts Payable; Accounts Receivable.
(a) Not later than 10 days after the
Effective Time, the Seller shall furnish to Buyer a list of any
Accounts Receivable outstanding as of the Effective Time and of
any accounts payable ("Accounts Payable") that are payable by
Seller after the Effective Time; it being understood that Buyer
is not a collection agent and that Buyer will not obtain a
license as a collection agency. For a period of 120 days after
the Effective Time, Buyer shall on a best effort basis and
without other compensation collect the Accounts Receivable, net
of any applicable agency commission or prompt payment discount,
and Buyer shall pay the Accounts Payable for Seller. Within 15
days after the last day of each calendar month during the 120 day
period, Buyer shall remit to Seller the amount collected by Buyer
during that month with respect to the Accounts Receivable (net of
sales commissions payable and paid to agencies or employees of
the Stations and BMS or brokers) less the amount paid by Buyer
with respect to the Accounts Payable and Buyer shall provide
Seller with a report setting forth the Accounts Receivable
collected by Buyer during that particular month and the Accounts
Payable paid by Buyer during that particular month (and if the
amount of the Accounts Payable paid exceeds the net amount of the
Accounts Receivable collected, Seller shall promptly pay such
excess to Buyer). Buyer shall furnish Seller with such records
and other information as Seller may reasonably require to verify
the amounts collected by Buyer with respect to the Accounts
Receivable or paid with respect to the Accounts Payable.
(b) For the purpose of determining amounts
collected by Buyer with respect to the Accounts Receivable (other
than the Accounts Receivable from the account debtors listed on
schedule 6.4(a) (the "120 Day Debtors")), (i) in the absence of a
bona fide dispute between such an account debtor of the Seller or
its representative and the Seller, all payments by such account
debtor shall first be applied to Accounts Receivable due from
such account debtor (it being understood that for the purposes of
this section an account debtor will be deemed to be the ultimate
beneficiary of the broadcasting time generated by a particular
purchase, that is, for example, in the case of a purchase
undertaken by an advertising agency, on behalf or for the benefit
of a particular client, the client for whom the particular
purchase was undertaken shall be deemed to be the account debtor
for purposes of this section), and (ii) any amount received by
Buyer which is from an account debtor who claims, or whose
representative claims, to have a bona fide dispute with Seller
shall be deemed to have been received with respect to the
accounts receivable due Buyer to the extent of such dispute. For
the purpose of determining amounts collected by Buyer with
respect to Accounts Receivable from 120 Day Debtors, each payment
from that Debtor shall be applied as indicated by the Debtor in
making the payment (and, if the Debtor does not indicate, the
Buyer shall request that the account debtor indicate how the
payment is to be applied).
(c) Buyer shall not be required to retain a
collection agency, bring any suit, or take any other action out
of the ordinary course of business to collect any of the Accounts
Receivable. Buyer shall not compromise, settle or adjust the
amount of any of the Accounts Receivable without the written
consent of Seller. By the same token, during the afore referred
120 day period after the Effective Time, Seller shall not
threaten to xxx, xxx or engage any collection agency or any
collection procedure of any kind with regard to any account
included in the Accounts Receivable other than any account owed
by any 120 Day Debtor who is not a current client of the Stations
or BMS at the time such action is taken, provided that Seller
gives Buyer 10 days prior notice of such proposed action and
Buyer does not notify Seller within that 10-day period that the
120-Day Debtor is a current client of the Stations or BMS.
(d) Each advertising agency placing time on
the Stations is entitled to a volume discount for calendar year
1997 if it purchases a minimum amount (the "Minimum Amount") of
time on the Stations during that year, as set forth on schedule
6.4(d). At the closing (or on December 31, 1997, whichever is
earlier), Buyer (or, if on December 31, 1997, Seller) shall
deliver to the Escrow Agent an amount equal to 9/12 of the
aggregate volume discount Seller paid to advertising agencies
with respect to calendar year 1996, or $215,627 (the "Volume
Discount Escrow Amount). The Volume Discount Escrow Amount shall
be held by the Escrow Agent pursuant to the terms of an escrow
agreement in the form of exhibit 6.4(d) hereto. If the amount of
time on the Stations purchased by any advertising agency in all
of calendar year 1997 exceeds the Minimum Amount, then (1) Buyer
shall pay the entire volume discount for 1997 to the agency
before April 30, 1998, and (2) Buyer shall notify Seller of the
payment, and Buyer may withdraw from the Volume Discount Escrow
Amount an amount equal to the volume discount on the amount of
time on the Stations purchased by that agency prior to the
Effective Date of the LMA Agreement determined as provided below.
Subject to the provisions of Sections 3.01 and 4.01 of the escrow
agreement referred to above, to the extent amounts are not paid
to advertising agencies as provided in the preceding sentence or
claimed by advertising agencies before April 30, 1998, the
remainder shall be paid to Seller. For purposes of the
foregoing, the volume discount portion of the total volume
discount paid to a particular agency that will correspond to
Seller shall be an amount which bears the same ratio to such
total volume discount as the gross revenues sold by the Station
to the particular agency during calendar year 1997 through the
Effective Date of the LMA Agreement bears to the total annual
gross revenues sold by the Stations to the particular agency for
all of calendar year 1997.
6.5 Access to Information. Prior to the closing,
the Buyer and its representatives may make such investigation of
the property, assets and businesses of the Stations and BMS as it
may desire, and the Seller shall give to the Buyer and to its
counsel, accountants and other representatives, upon reasonable
notice, full access during normal business hours throughout the
period prior to the closing to all of the assets, books,
commitments, agreements, records and files of the Seller relating
to the Stations and BMS, except that Buyer shall do no
environmental testing without the consent of Seller, which
consent shall not be unreasonably withheld, and the Seller shall
furnish to the Buyer during that period all documents and copies
of documents and information concerning the businesses and
affairs of the Stations and BMS as the Buyer reasonably may
request. The Buyer shall hold, and shall cause its
representatives to hold, all such information and documents and
all other information and documents delivered pursuant to this
agreement confidential and, if the purchase and sale contemplated
by this agreement is not consummated for any reason, shall return
to the Seller all such information and documents and any copies
as soon as practicable, and shall not disclose any such
information (that has not previously been disclosed and generally
made available to the public other than by Buyer or its
representatives, provided that the source of such disclosure is
not bound by a confidentiality agreement (whether written or
oral) with the Seller) to any third party unless required to do
so pursuant to a request or order under applicable laws and
regulations or pursuant to a subpoena or other legal process.
The Buyer's obligations under this section shall survive the
termination of this agreement.
6.6 Consents; Assignment of Agreements. The
Seller shall use reasonable efforts (but shall not be required to
make any payment) to obtain at the earliest practicable date all
consents and approvals referred to in section 4.3. If, with
respect to any lease or agreement to be assigned to the Buyer, a
required consent to the assignment is not obtained (and,
accordingly, pursuant to section 1.2(c), the lease or agreement
is excluded from the sale to the Buyer), the Seller shall so
advise Buyer (and advise Buyer from time to time prior to the
Closing of its efforts to obtain such consent), use reasonable
efforts to keep it in effect and give the Buyer the benefit of it
to the same extent as if it had been assigned, and the Buyer
shall perform Seller's obligations under the agreement relating
to the benefit obtained by the Buyer. Nothing in this agreement
shall be construed as an attempt to assign any agreement or other
instrument that is by its terms nonassignable without the consent
of the other party.
6.7 Title Insurance; Transfer and Recording Fees.
The Buyer shall pay any stamp or transfer taxes, real or personal
property taxes or recording fees payable in connection with the
sale of the Assets, and any fees for title insurance on the fee
interest acquired by the Buyer pursuant to this agreement. The
Seller shall pay the internal revenue stamps to be affixed to the
original of the deed of purchase and sale of the Real Property
and shall pay the notarial fees corresponding to the same. The
Buyer shall choose the notary public that will draft and execute
the deed of purchase and sale. The Buyer shall pay the internal
revenue stamps to be affixed on the certified copy of the deed of
purchase and sale and the recording fees payable in connection
with the deed of purchase and sale.
6.8 Employees.
(a) Employment. The Buyer shall employ
those employees listed on schedule 6.8(a) at the Effective Time
or on the Closing Date as indicated on schedule 6.8(a). The
Buyer shall have no obligation to offer employment to the one
employee indicated on schedule 6.8(a).
(b) Employee Benefits Generally. The Buyer
shall provide all employees of the Seller that become employees
of the Buyer ("Covered Employees") all accrued vacation and sick
leave, Christmas bonus and similar benefits provided for and
funded by Seller in the Accrued Benefit Escrow Amount referred to
in section 6.8(d). Buyer shall also provide the Covered
Employees employee benefits that in the aggregate are no less
favorable than those benefits provided by Seller to the Covered
Employees as of the Effective Time and Buyer shall give to each
Covered Employee past service credit for purposes of eligibility
and vesting under all employee benefit plans for employees of the
Buyer (and past service credit for all purposes, including the
amount of benefits, under the severance, vacation, sick pay and
similar policies of the Buyer). In no event shall Buyer be
obligated for any benefit or perquisite of employment which
derives from the employment relationship between Seller and its
employees or the termination thereof (except termination
compensation for Covered Employees who are terminated by Buyer),
including but not limited to severance payment, labor or
employment law related claims, benefits or perquisites provided
by Seller pursuant to any benefit plan, insurance contract,
employment or other benefit arrangement either under Federal or
Puerto Rico laws. Seller thus shall indemnify Buyer and hold
Buyer harmless of and from any and all claims, expenses, actions,
causes of action, damages or losses incurred or suffered by Buyer
in connection with claims by any persons or any agency, whether
public or private, related to any such labor matters, under any
applicable law or regulation.
(c) Medical Benefits. The Buyer shall
provide all Covered Employees (and their dependents) with medical
benefit coverage similar to that provided by Seller to those
Employees prior to the Effective Time. The Buyer shall use
reasonable efforts (without incurring any disbursement or payment
obligation of any sort) to cause its plan(s) to waive any pre-
existing condition exclusions and waiting periods (except to the
extent that such exclusions would have then applied or waiting
periods were not satisfied under Seller's medical plan) and to
credit or otherwise consider any monies paid (or accrued) under
Seller's medical plan by Covered Employees (or their dependents)
since January 1, 1997 toward any deductibles, co-pays or other
maximums under its plan(s) during the first plan year. The Buyer
shall be responsible for satisfying its obligations under Section
601 et seq. of ERISA and Section 4980B of the Internal Revenue
Code to provide continuation coverage ("COBRA") to any Covered
Employee in accordance with law and shall provide COBRA coverage
to any employees of the Seller not employed by the Buyer at the
Effective Time or at the Closing, as the case may be (and to any
former employees of the Seller being provided COBRA coverage by
Seller at the Effective Time), to the extent required by COBRA.
(d) Accrued Benefits. Seller shall be
responsible for all vacation pay, sick pay, Christmas bonus and
similar benefits accruing through the Effective Date of the LMA
(collectively "Accrued Benefits") to all Covered Employees.
Buyer and Seller estimate that the maximum liability of Seller
for Accrued Benefits to Covered Employees is $219,925 (the
"Accrued Benefit Escrow Amount"). At the Effective Time, Seller
shall deliver to the Escrow Agent the Accrued Benefit Escrow
Amount to be held by the Escrow Agent pursuant to the terms of an
escrow agreement in the form of Exhibit 6.8(d). Buyer may, after
notice to Seller, withdraw from the Accrued Benefit Escrow Amount
any amounts paid by Buyer to employees of Seller with respect to
Accrued Benefits, as provided in the escrow agreement. To the
extent amounts are not paid to Covered Employees from the Accrued
Benefit Escrow Amount, the amount remaining on December 31, 1998
and unclaimed shall be paid to Seller.
(e) Employment Agreement. Seller has
entered into an employment agreement with Xxxx Xxxxx, as general
manager of the Stations, and Buyer shall assume the agreement at
the Effective Time.
6.9 Expenses. Each party shall bear its own
expenses incurred in connection with the negotiation and pre
paration of this agreement and in connection with all obligations
required to be performed by it under this agreement, except where
specific expenses have been otherwise allocated by this
agreement.
6.10 Financial Statements and Information.
During the term of the LMA Agreement, the Buyer shall provide to
the Seller monthly financial statements relating to the Stations
and BMS and any other financial information with respect to the
Stations and BMS as the Seller may reasonably request.
6.11 Application for Increased Power. Until the
closing, the Seller and its Commission counsel, Wiley, Rein &
Fielding, shall continue to prosecute the Application to increase
the authorized nighttime broadcast power of WUNO(AM) from 1 kW to
2.30 kW. If the Application is still pending on the Closing
Date, the Buyer and its Commission counsel shall continue to
prosecute the Application thereafter, but Seller and its
Commission counsel may continue to participate in the prosecution
of the Application. Buyer shall not seek to increase the
authorized nighttime power for WUNO(AM) to 5 kW unless and until
the increase to 2.30 kW has become final.
6.12 Other Action. Each of the parties to this
agreement shall use its best efforts to cause the fulfillment at
the earliest practicable date of all of the conditions to the
obligations of the parties to consummate the sale and purchase
under this agreement.
6.13 Further Assurances. At any time and from
time to time after the closing, each of the parties shall,
without further consideration, execute and deliver to the other
such additional instruments and shall take such other action as
the other may request to carry out the transactions contemplated
by this agreement. For a period of three years after the
closing, each party shall grant the other reasonable access
during normal business hours upon reasonable prior notice to the
books and records of that party for the purpose of complying with
any applicable law or governmental rule or request relating to
the period during which the other party operated the Station or
as otherwise reasonably required.
70 Conditions Precedent to Closing.
7.1 Conditions Precedent to the Obligations of
the Buyer. The Buyer's obligation to consummate the purchase
under this agreement is subject to the fulfillment, at or prior
to the closing, of each of the following conditions (any of which
may be waived in writing by the Buyer):
(a) all representations and warranties of
the Seller under this agreement shall be true at and as of the
time of the closing with the same effect as though those
representations and warranties had been made again at and as of
that time, except to the extent any failure to be true results
from the operations of the Stations and BMS by Buyer during the
term of the LMA Agreement and with such exceptions as do not have
a material adverse effect on the operations or business of the
Stations and BMS taken as a whole;
(b) the Seller shall have performed and
complied in all material respects with all obligations, covenants
and conditions required by this agreement to be performed or
complied with by it prior to or at the closing;
(c) the Commission shall have given all
requisite approvals and consents, without any condition or
qualification materially adverse to the Buyer or the operations
of the Stations and BMS taken as a whole, to the assignment of
the FCC Licenses to the Buyer and the acquisition of control of
the Stations and BMS by the Buyer as provided in this agreement
and such approvals shall have become a Final Order (as defined
below);
(d) the Seller shall have duly received,
without any condition materially adverse to the Buyer, all
consents and approvals referred to in schedule 7.1(d);
(e) there shall not be in effect an in
junction or restraining order issued by a court of competent
jurisdiction in an action or proceeding against the consummation
of the transactions contemplated by this agreement; and
(f) the Buyer shall have been furnished with
a certificate of an officer of the Seller, dated the Closing
Date, in form and substance reasonably satisfactory to the Buyer,
certifying to the fulfillment of the conditions set forth in
sections 7.1(a) and (b).
For the purpose of this agreement, "Final
Order" means action by the Commission (a) which has not been
vacated, reversed, stayed, set aside, annulled or suspended, (b)
with respect to which no appeal, request for stay, or petition
for rehearing, reconsideration or review by any party or by the
Commission on its motion, is pending, and (c) as to which the
time for filing any such appeal, request, petition, or similar
document for the reconsideration or review by the Commission on
its own motion under the express provisions of the Communications
Act of 1934 and the rules and regulations of the Commission, has
expired (or if any such appeal, request, petition or similar
document has been filed, a Commission order has been upheld in a
proceeding pursuant thereto and no additional review or
reconsideration may be sought).
7.2 Conditions Precedent to the Obligations of
the Seller. The Seller's obligation to consummate the sale under
this agreement is subject to the fulfillment, at or prior to the
closing, of each of the following conditions (any of which may be
waived in writing by the Seller):
(a) all representations and warranties of
the Buyer under this agreement shall be true at and as of the
time of the closing with the same effect as though those
representations and warranties had been made at and as of that
time, with such exceptions as do not in the aggregate have a
material adverse effect on the ability of the Buyer to consummate
the transactions contemplated by this agreement;
(b) the Buyer shall have performed and
complied in all material respects with all obligations, covenants
and conditions required by this agreement to be performed or
complied with by it prior to or at the closing;
(c) the Commission shall have given all
requisite approvals and consents, without any condition or
qualification materially adverse to the Seller, to the assignment
of the FCC Licenses to the Buyer and the acquisition of control
of the Stations and BMS by the Buyer as provided in this
agreement, and such approvals shall have become a Final Order;
(d) the lenders under the Note Agreement
shall have released their lien on substantially all of the
Assets;
(e) there shall not be in effect an in
junction or restraining order issued by a court of competent
jurisdiction in an action or proceeding against the consummation
of the transactions contemplated by this agreement; and
(f) the Seller shall have been furnished
with a certificate of an officer of the Buyer, dated the Closing
Date, in form and substance reasonably satisfactory to the
Seller, certifying to the fulfillment of the conditions set forth
in sections 7.2(a) and (b).
80 Transactions at the Closing.
8.1 Documents to be Delivered by the Seller. At
the closing, the Seller shall deliver to the Buyer the following:
(a) such bills of sale, assignments, deeds
or other instruments of transfer and assignment, and such
termination letters and satisfactions of mortgages and chattel
mortgages, all in form and substance reasonably satisfactory to
the Buyer and its counsel, as shall be effective to vest in Buyer
title to the Assets in accordance with section 4.4;
(b) an opinion of Proskauer Rose LLP,
counsel to the Seller, dated the Closing Date, in form reasonably
acceptable to the Buyer and its counsel;
(c) an opinion of Wiley, Rein & Fielding,
Commission counsel to the Seller, dated the Closing Date, in form
reasonably acceptable to the Buyer and its counsel;
(d) the certificate referred to in section
7.1(f);
(e) copies of all consents and approvals
received pursuant to section 6.6; and
(f) a copy of resolutions of the managing
general partner of the Seller authorizing the execution, delivery
and performance of this agreement by the Seller, certified as of
the Closing Date and reflecting that such resolutions were duly
adopted and are in full force and effect.
8.2 Documents to be Delivered by the Buyer. At
the closing, the Buyer shall deliver to the Seller the following:
(a) wire transfer of funds or a bank or
certified check in the amount provided in section 2.2(d);
(b) instruments, in form and substance
reasonably satisfactory to the Seller and its counsel, pursuant
to which the Buyer shall assume the obligations of the Seller to
be assumed by the Buyer pursuant to section 2.1(b);
(c) an opinion of Totti and Xxxxxxxxx-Xxxx,
counsel to the Buyer, dated the Closing Date, in form reasonably
acceptable to the Seller and its counsel;
(d) a copy of resolutions of the board of
directors of the Buyer authorizing the execution, delivery and
performance of this agreement by the Buyer, and a certificate of
the secretary or an assistant secretary of the Buyer, dated the
Closing Date, that such resolutions were duly adopted and are in
full force and effect; and
(e) the certificate referred to in section
7.2(f).
8.3 Documents Executed at Closing. At the
closing, the Buyer and the Seller shall execute and deliver the
Indemnity Escrow Agreement, the Broadcast Power Escrow Agreement
(if applicable) and a Non-competition Agreement in the form of
exhibit 8.3 and, if the Closing is after December 31, 1997, a
Volume Discount Escrow Agreement.
90 Survival of Representations and Warranties;
Indemnification.
9.1 Survival. All representations, warranties,
covenants and agreements of the Seller and the Buyer contained in
this agreement shall survive the Closing Date. Neither party
shall, however, have any liability for misrepresentation or
breach of warranty, covenant or agreement hereunder except to the
extent that notice of a claim is asserted in writing and
delivered to the other party not later than the first anniversary
of the closing (or the fifth anniversary of the closing in the
case of any claim asserted against Buyer by any employee of
Seller arising under any applicable labor or labor related law or
representation with respect to the employment of such employee by
Seller prior to the Effective Date of the LMA Agreement). Any
notice of a claim for misrepresentation or breach of warranty,
covenant or agreement shall state specifically the representation
or warranty, covenant or agreement with respect to which the
claim is made, the facts giving rise to an alleged basis for the
claim, and the amount of liability asserted against the other
party by reason of the claim. The consummation by the Seller or
the Buyer of the purchase and sale contemplated by this agreement
with knowledge of a misrepresentation or breach of warranty by
the other party shall be considered a waiver of any claim with
respect to that misrepresentation or breach of warranty.
9.2 Indemnification.
(a) Subject to sections 9.1 and 9.3, the
Seller shall indemnify and hold harmless the Buyer against all
loss, liability, damage or expense (including reasonable fees and
expenses of counsel) (together, "Losses"), that the Buyer may
suffer, sustain or become subject to as a result of (i) any
misrepresentation by the Seller or any breach by the Seller of
any warranty, covenant or other agreement contained in this
agreement, (ii) the failure by the Seller to pay, perform or
discharge when due any of the Seller's obligations, liabilities,
agreements or commitments not assumed by the Buyer pursuant to
this agreement, (iii) any liability under any agreement assumed
by the Buyer pursuant to section 2.1(b) but not listed on
schedule 4.12 or 4.13, and (iv) any claim with respect to the
termination of any of the employees of the Seller who do not
become Covered Employees or any claim by any employee of Seller
relating to the period such employee was employed by Seller.
(b) Subject to section 9.1, the Buyer shall
indemnify and hold harmless the Seller against all Losses that
the Seller may suffer, sustain or become subject to as a result
of (i) any misrepresentation by the Buyer or any breach by the
Buyer of any warranty, covenant or other agreement contained in
this agreement, (ii) the failure by Buyer to pay, perform or
discharge any of the obligations arising after 12:00 Midnight on
the Closing Date under those leases and other agreements assigned
to Buyer pursuant to sections 1.1(d) and (f), as provided in
section 2.1, and (iii) any claim by any of the Covered Employees
relating to the period such employee was employed by Buyer.
(c) If any claim is made against the Buyer
that, if sustained, would give rise to a liability of the Seller
under this agreement, or otherwise, the Buyer promptly shall
cause notice of the claim to be delivered to the Seller and shall
afford the Seller and its counsel, at the Seller's expense, the
opportunity to defend or settle the claim. If such notice and
opportunity are not given, or if notice is given but the claim is
settled without the Seller's consent, which consent shall not be
unreasonably withheld, the Seller shall not have any liability to
the Buyer with respect to the claim. The Buyer shall cooperate
with the Seller in the defense of the claim and may, at its own
expense, participate in the defense, but complete control of the
defense shall remain with the Seller. The Seller shall give
notice to the Buyer prior to settlement of any claim, and the
Seller shall not settle any claim in a manner that would have an
adverse effect on the operation of the Stations or BMS, without
the consent of the Buyer, which consent shall not be unreasonably
withheld.
(d) If any claim is made against the Seller
that, if sustained, would give rise to a liability of the Buyer
under this agreement, or otherwise, the Seller promptly shall
cause notice of the claim to be delivered to the Buyer and shall
afford the Buyer and its counsel, at the Buyer's expense, the
opportunity to defend or settle the claim. If such notice and
opportunity are not given, or if notice is given but the claim is
settled without the Buyer's consent, the Buyer shall not have any
liability to the Seller with respect to the claim. The Seller
shall cooperate with the Buyer in the defense of the claim and
may, at its own expense, participate in the defense, but complete
control of the defense shall remain with the Buyer.
9.3 Limitation on Liability. Notwithstanding
anything to the contrary in this agreement;
(a) the Seller shall not be liable to the
Buyer for misrepresentation or breach of warranty or for
indemnification pursuant to section 9.2(a)(iii) or 9.2(a)(iv)
except to the extent that the aggregate amount of loss,
liability, damage and expense incurred as a result of all such
misrepresentations and breaches of warranty or for such
indemnification exceeds in the aggregate the sum of $75,000;
(b) the aggregate liability of the Seller to
the Buyer for indemnification or otherwise under this agreement
shall be limited solely to the Indemnity Escrow Amount; and
(c) except as provided in section 12.10, the
Buyer shall have no other recourse against the Seller or any
partner of Seller with respect to such indemnity obligations or
otherwise arising under this agreement.
Notwithstanding the foregoing, the Seller shall
indemnify and hold harmless the Buyer against all out-of-pocket
costs and expenses (including reasonable fees and expenses of
counsel) resulting from any claims asserted against Buyer or the
Assets by any third party unrelated to Buyer resulting solely
from the operations of the Stations and BMS prior to the
Effective Date of the LMA Agreement.
10. Termination.
10.1 Termination. Except with respect to
provisions that expressly survive termination, this agreement may
be terminated:
(a) by written agreement of the Buyer and
the Seller;
(b) by the Seller, by notice to the Buyer,
if the LMA Agreement is terminated as a result of a breach by the
Buyer;
(c) by the Buyer or the Seller, by notice to
the other, if at any time prior to the Closing Date any event
shall have occurred or any state of facts shall exist that
renders any of the conditions to its obligations as provided in
this agreement incapable of fulfillment;
(d) by the Buyer as provided in section 11;
or
(e) by the Buyer or the Seller, by notice to
the other, if the Commission designates for a hearing the
application for Commission consent contemplated by this
agreement.
10.2 Liability. The termination of this
agreement under section 10.1(b), (c) or (d) shall not relieve any
party of any liability for breach of this agreement prior to the
date of termination.
11. Risk of Loss. The risk of loss or damage to any
of the Assets shall be on the Seller prior to the closing and
thereafter shall be on the Buyer. If any material Asset is
damaged or destroyed prior to the Closing Date (any such event
being referred to as an "Event of Loss"), the Seller shall
immediately notify Buyer in writing of the Event of Loss. The
notice shall specify with particularity the loss or damage
incurred, the cause of the Event of Loss, if known or reasonably
ascertainable, and the applicable insurance coverage. If the
Seller elects to repair, replace or restore the Asset and the
Asset so damaged or destroyed cannot be completely repaired,
replaced or restored by the scheduled date of the closing but can
be accomplished within 90 days after that date, the date of the
closing shall be postponed for up to that 90-day period to allow
the Seller an opportunity to repair, replace or restore the
Asset. If the Seller does not elect to repair, replace or
restore the Asset or if the repair, replacement or restoration
cannot be accomplished within that 90-day period, the Buyer may
elect, by written notice to the Seller within 20 days after the
Buyer has received notice that an Event of Loss has occurred or
that the repair, replacement or restoration cannot be so
completed:
(a) to close the transaction on the
scheduled date of the closing and accept the damaged Asset as is
(together with all insurance proceeds paid or payable with
respect to the Event of Loss) ; or
(b) to terminate this agreement without
liability, in which event the Escrow Agent shall return Seller's
Liquidated Damage Escrow Amount to Buyer.
If the date of the closing is postponed
beyond the time specified in section 3.2, the parties shall amend
their application or applications to the Commission to request an
extension of the date of closing.
12. Miscellaneous.
12.1 Notices. Any notice or other communication
under this agreement shall be in writing and shall be considered
given when delivered personally or when mailed by registered
mail, return receipt requested, to the parties at the addresses
set forth below (or at such other address as a party may specify
by notice to the other):
to the Buyer, to it at:
00xx Xxxxxx xxx Xxxxx Xxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, Xxxxxx Xxxx 00000
with a copy to:
Xxxx Xxxxxxxxx Xxxx, Esq.
Edificio Union Plaza
Xxxxxxx Xxxxx Xx Xxxx 000
Xxxxx 0000
Xxxx Xxx, XX 00000
if to Seller, to it at:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: I. Xxxxxx Xxxxxxxx
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
12.2 Brokers. Each of the Buyer and the Seller
represents and warrants to the other that it has not retained or
dealt with any broker or finder in connection with the
transactions contemplated by this agreement, except that the
Buyer has retained and shall pay the fees payable to Rumbaut and
Company pursuant to a separate agreement between Buyer and
Rumbaut and Company.
12.3 Entire Agreement. This agreement, including
the schedules and exhibits, contains a complete statement of all
the arrangements between the parties with respect to its subject
matter, supersedes any previous agreement between them relating
to that subject matter, and cannot be changed or terminated
orally. Except as specifically set forth in this agreement,
there are no representations or warranties by either party in
connection with the transactions contemplated by this agreement.
12.4 Headings. The section headings of this
agreement are for reference purposes only and are to be given no
effect in the construction or interpretation of this agreement.
12.5 Governing Law. This agreement shall be
governed by and construed in accordance with the law of the
Commonwealth of Puerto Rico applicable to agreements made and to
be performed in Puerto Rico.
12.6 Separability. If any provision of this
agreement is invalid or unenforceable, the balance of this
agreement shall remain in effect.
12.7 Assignment. No party may assign any of its
rights or delegate any of its duties under this agreement prior
to the Closing without the consent of the other except that the
Buyer may assign its rights and delegate its duties to an
affiliate provided such assignment does not delay Commission
approval of the transactions contemplated by this agreement.
This agreement shall be binding upon and inure to the benefit of
the parties hereto, their successors and permitted assigns.
12.8 Publicity. Except as required by applicable
law, no party shall issue any press release or other public
statement regarding the transactions contemplated by this
agreement without consulting with the other.
12.9 Knowledge. As used in this agreement, the
phrase "to the best of Seller's knowledge" means the knowledge of
I. Xxxxxx Xxxxxxxx, Xxxxxxxxx XxXxx Xxxxx, Xxx Xxxxxxx, Jr. or
Xxxx Xxxxx.
12.10 Specific Performance. The Seller
acknowledges that the Assets are of a special, unique and
extraordinary character, and that any breach of this agreement by
the Seller could not be compensated for by damages, and the
Seller agrees that the Buyer's right to specific performance is
essential to protect the rights of the Buyer hereunder.
Accordingly, if the Seller breaches its obligations under this
agreement, the Buyer shall be entitled, in addition to any other
remedies that it may have, subject to obtaining any necessary
approval of the Commission, to enforcement of this agreement by a
decree of specific performance requiring the Seller to fulfill
its obligations under this agreement.
12.11 Counterparts. This agreement may be
executed in any number of counterparts, which together shall
constitute one and the same instrument.
MADIFIDE, INC.
By:____________________
Name:
Title:
CENTURY-ML CABLE VENTURE
By:____________________
Name:
Title:
Table of Contents
Page
1. Sale and Purchase of Assets 1
1. Sale of Assets to Buyer 1
1.2 Excluded Assets 3
2. Purchase Price 3
2.1 Amount and Payment of Consideration. 3
2.2 Payment of Purchase Price 4
2.3 Deposit; Seller's Liquidated Damages 5
2.4 Limitation on Assumption of Liabilities 6
2.5 Apportionment 6
2.6 Determination of Apportionments 7
2.7 Allocation of Purchase Price 7
3. Closing 8
3.1 Date of Closing 8
3.2 Outside Date for Closing 8
4.1 The Seller's Organization and Authority 8
4.2 Authorization of Agreement 8
4.3 Consents of Third Parties 8
4.4 Title to Assets 9
4.5 FCC Licenses 10
4.6 Call Letters 11
4.7 Operation of the Stations and BMS 11
4.8 Financial Statements 11
4.9 Absence of Certain Changes 11
4.10 Tangible Property 12
4.11 Intangible Assets 12
4.12 Litigation; Compliance with Laws 13
4.13 List of Agreements, etc. 13
4.14 Agreements Regarding Employees 13
4.15 Status of Agreements 14
4.16 Insurance 14
4.17 Labor Matters 14
4.18 Environmental Matters 15
4.19 ERISA 16
4.20 Commission Reports 16
4.21 Finders, Brokers 16
4.22 Ordinary Course of Business 17
4.23 Tax and Other Returns or Filings 17
4.24 Compliance with Law; Authorizations 17
4.25 Utility Services 18
5. Representations and Warranties by the Buyer 18
5.1 The Buyer's Organization and Authority 18
5.2 Authorization of Agreement 18
5.3 Consents of Third Parties 19
5.4 Litigation 19
5.5 Buyer's Qualification 19
5.6 Finders, Brokers 19
6. Further Agreements of the Parties 19
6.1 Filings 19
6.2 Operations of the Stations and BMS 20
6.3 No Control 21
6.4 Accounts Payable; Accounts Receivable 21
6.5 Access to Information 24
6.6 Consents; Assignment of Agreements 24
6.7 Title Insurance; Transfer and Recording Fees 25
6.8 Employees 25
6.9 Expenses 27
6.10 Financial Statements and Information 27
6.11 Application for Increased Power 27
6.12 Other Action 27
6.13 Further Assurances 28
7. Conditions Precedent to Closing 28
7.1 Conditions Precedent to the Obligations of the Buyer
28
7.2 Conditions Precedent to the Obligations of the Seller
29
8. Transactions at the Closing 30
8.1 Documents to be Delivered by the Seller 30
8.2 Documents to be Delivered by the Buyer 31
8.3 Documents Executed at Closing 31
9. Survival of Representations and Warranties; Indemnification
31
9.1 Survival 31
9.2 Indemnification 32
9.3 Limitation on Liability 33
10. Termination 34
10.1 Termination 34
10.2 Liability 34
11. Risk of Loss 34
12. Miscellaneous 35
12.1 Notices 35
12.2 Brokers 36
12.3 Entire Agreement 36
12.4 Headings 36
12.5 Governing Law 36
12.6 Separability 36
12.7 Assignment 37
12.8 Publicity 37
12.9 Knowledge 37
12.10 Specific Performance 37
12.11 Counterparts 8
