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EXHIBIT 10.154
ASSET PURCHASE AGREEMENT
DATED AS OF MARCH 25, 1997
BY AND AMONG
XXXXXX COMMUNICATIONS OF WEST PALM BEACH-25, INC.,
XXXXXX WEST PALM BEACH LICENSE, INC.,
AND
THE HEARST CORPORATION
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TABLE OF CONTENTS
Page
SECTION 1 CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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1.1 Terms Defined in this Section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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1.2 Terms Defined Elsewhere in this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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SECTION 2 PURCHASE AND SALE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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2.1 Agreement to Sell and Buy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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2.2 Excluded Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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2.3 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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2.4 Payment of Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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2.5 Assumption of Liabilities and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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2.6 Liabilities Not Assumed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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SECTION 3 REPRESENTATIONS AND WARRANTIES OF SELLERS . . . . . . . . . . . . . . . . . . . . . . . . . 11
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3.1 Organization, Standing, and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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3.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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3.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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3.4 Governmental Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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3.5 Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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3.6 Tangible Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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3.7 Entire Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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3.8 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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3.9 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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3.10 Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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3.11 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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3.12 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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3.13 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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3.14 Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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3.15 Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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3.16 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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3.17 Claims and Legal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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3.18 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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3.19 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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3.20 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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3.21 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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SECTION 4 REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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4.1 Organization, Standing, and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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4.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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4.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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4.4 Buyer Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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SECTION 5 OPERATIONS OF WPBF PRIOR TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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5.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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5.2 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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5.3 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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5.4 Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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5.5 Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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5.6 Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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5.7 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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5.8 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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5.9 Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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5.10 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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5.11 Advice as to Certain Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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5.12 FCC Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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SECTION 6 SPECIAL COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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6.1 FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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6.2 HSR Act Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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6.3 Control of WPBF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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6.4 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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6.5 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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6.6 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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6.7 Access to Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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6.8 Disclaimer of Further Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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6.9 Collection of Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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6.10 Noncompetition Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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SECTION 7 CONDITIONS TO OBLIGATIONS OF BUYER AND SELLERS AT CLOSING . . . . . . . . . . . . . . . . . 25
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7.1 Conditions to Obligations of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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7.2 Conditions to Obligations of Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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SECTION 8 CLOSING AND CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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8.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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8.2 Deliveries by Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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8.3 Deliveries by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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SECTION 9 TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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9.1 Termination by Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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9.2 Termination by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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9.3 Termination by Mutual Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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9.4 Payment of Liquidated Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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9.5 Buyer's Rights on Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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9.6 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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SECTION 10 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; CERTAIN REMEDIES . . . . . . . 30
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10.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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10.2 Indemnification by Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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10.3 Indemnification by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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10.4 Procedure for Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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10.5 Certain Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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SECTION 11 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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11.1 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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11.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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11.3 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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11.4 Benefit and Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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11.5 Further Assurances; Reasonable Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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11.6 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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11.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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11.8 Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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11.9 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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11.10 Waiver of Compliance; Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
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11.11 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is dated as of March 20, 1997, by and
among Xxxxxx Communications of West Palm Beach-25, Inc., a Florida corporation
("Owner"), Xxxxxx West Palm Beach License, Inc., a Florida corporation
("Licensee"), and The Hearst Corporation, a Delaware corporation ("Buyer").
PRELIMINARY STATEMENT
Each of Owner and Licensee is a wholly-owned, direct or indirect,
subsidiary of Xxxxxx Communications Corporation, a Delaware corporation
("PCC"). Owner and Licensee own and operate television station WPBF-TV,
Tequesta, Florida ("WPBF"), pursuant to licenses issued by the Federal
Communications Commission. Owner and Licensee (collectively, "Sellers," and
each, individually, a "Seller") desire to sell, and Buyer wishes to buy,
substantially all the assets of Owner and Licensee that are used in the
business and operations of WPBF 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 Sellers, intending to be
bound legally, agree as follows:
SECTION 1 CERTAIN DEFINITIONS.
1.1 Terms Defined in this Section. The following terms, as used in
this Agreement, have the meanings set forth in this Section:
"Accounts Receivable" means the rights of either Seller as of 11:59 pm
on the day prior to the Closing Date to payment for the sale by WPBF of
advertising time and other goods and services prior to the Closing Date.
"Affiliate," with respect to any Person, means any other Person,
directly or indirectly, controlling, controlled by, or under common control
with such Person.
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Buyer under this Agreement, as specified in Section 2.1.
"Assumed Contracts" means (a) all Contracts listed on Schedule 3.8,
(b) Contracts in existence as of the date of this Agreement that are not
required to be listed on Schedule 3.8, and (c) Contracts entered into by either
Seller between the date of this Agreement and the Closing Date in compliance
with Section 5.2.
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"Closing" means the consummation of the purchase and sale of the Assets
pursuant to this Agreement in accordance with the provisions of Section 8.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
"Communications Act" means the Communications Act of 1934, as amended.
"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,
including written consents to the assignment of the Assumed Contracts.
"Contracts" means all contracts, leases, non-governmental licenses,
and other agreements, commitments, or arrangements (including leases for
personal or real property and employment agreements), written or oral
(including any amendments and other modifications thereto) to which either
Seller is a party or which are binding upon either Seller and that relate to or
affect the Assets or the business or operations of WPBF, and (a) that are in
effect on the date of this Agreement or (b) that are entered into by either
Seller between the date of this Agreement and the Closing Date.
"Effective Time" means 12:01 a.m., Eastern time, on the Closing Date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"FAA" means the Federal Aviation Administration.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action or actions by the FCC granting its consent,
to the extent required, to the assignment of all the FCC Licenses to Buyer as
contemplated by this Agreement.
"FCC Licenses" means all Licenses issued by the FCC to either Seller
in connection with the business or operations of WPBF.
"Final Order" means an action by the FCC (including action by the FCC
staff pursuant to delegated authority) that has not been reversed, stayed,
enjoined, set aside, annulled, or suspended, and with respect to which no
requests are pending for administrative or judicial review, reconsideration,
appeal, or stay, and the time for filing any such requests and the time for the
FCC to set aside the action on its own motion have expired.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
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"Intangibles" means (i) all copyrights, trademarks, trade names,
service marks, service names, call signs and letters, licenses, authorizations,
patents, permits, jingles, slogans, logos, proprietary information, technical
information and data, machinery and equipment and software warranties, and
other similar intangible property rights and interests (and any goodwill
associated with any of the foregoing), and applications therefor, owned by,
issued to, or held by either Seller and used or useful in the business and
operations of WPBF, together with any additions thereto between the date of
this Agreement and the Closing Date, and (ii) all programs and programming
materials owned by either Seller and used in the business and operations of
WPBF, whether recorded on tape or any other media or intended for live
performance, and whether completed or in production, and all related common law
and statutory copyrights owned by Sellers and used in the business and/or
operations of WPBF, together with any additions thereto between the date of
this Agreement and the Closing Date.
"Licenses" means all licenses, permits, construction permits,
registrations, and other authorizations issued by the FCC, the FAA, or any
other federal, state, or local governmental authorities to either Seller, used
in connection with the conduct of the business and/or operations of WPBF and
all applications therefor, together with any renewals, extensions,
modifications, and/or additions thereto between the date of this Agreement and
the Closing Date.
"Material Contracts" means those Assumed Contracts that are designated
on Schedule 3.8 as "Material Contracts."
"Permitted Liens" means (a) liens for current taxes not yet due and
payable, (b) landlord's liens and liens for property taxes not delinquent, (c)
statutory liens that were created in the ordinary course of business, (d)
leased interests in property owned by others and leased interests in property
leased to others as listed on Schedule 3.5, (e) restrictions set forth in, or
rights granted to governmental authorities as set forth in, applicable law, (f)
zoning, building, or similar restrictions, easements, rights-of-way,
reservations of rights, or other restrictions or encumbrances relating to or
affecting property, (g) easements, exceptions, and restrictions that are
disclosed on Schedule 3.5, and (h) other easements, covenants, and restrictions
of record that affect any Real Property Interest and would not result in a
material adverse change in the business or operations of WPBF or the ability of
Sellers to satisfy their obligations hereunder.
"Person" means an individual, corporation, association, partnership,
joint venture, trust, estate, limited liability company, limited liability
partnership, governmental entity, or other entity or organization.
"Purchase Price" means the purchase price specified in Section 2.3.
"Real Property" means all real property, and all buildings, fixtures,
and other improvements thereon, including towers, satellite dishes and antennae
to the extent the foregoing are considered real property, whether or not owned
or held by either Seller, used in the business and/or operations of WPBF.
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"Real Property Interests" means all interests in real property,
including fee estates, leaseholds and subleaseholds, purchase options,
easements, licenses, rights to access, and rights of way, and all buildings,
and other improvements thereon, including towers, satellite dishes and antennae
to the extent the foregoing are considered real property, which are owned by,
issued to, or held by either Seller and used in the business or operations of
WPBF, together with any additions thereto between the date of this Agreement
and the Closing Date.
"Tangible Personal Property" means all machinery, equipment, tools,
vehicles, furniture, fixtures, transmitters, antennae, leasehold improvements,
office equipment, materials and supplies, plant, inventory, video libraries and
archives, spare parts, and other tangible personal property of every kind and
description, wherever located, owned, issued to, or held by either Seller that
is used in the conduct of the business and/or operations of WPBF, together with
any additions, improvements and replacements thereto between the date of this
Agreement and the Closing Date.
"Taxes" means all taxes, charges, fees, levies, or other assessments
imposed by any federal, state, local, or foreign taxing authority, whether
disputed or not, including income, capital, estimated, excise, property, sales,
transfer, withholding, employment, payroll, and franchise taxes and any
interest, penalties, or additions attributable to or imposed on or with respect
to such assessments.
1.2 Terms Defined Elsewhere in this Agreement. For purposes of this
Agreement, the following terms have the meanings set forth in the sections
indicated:
Term Section
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Benefit Plan Section 3.15(b)
Claimant Section 10.4(a)
Collection Period Section 6.9(a)
DOJ Section 6.2
Employees Section 3.15(a)
Estimated Purchase Price Section 2.4(a)
Event of Loss Section 6.4(b)
Financial Statements Section 3.11
FTC Section 6.2
Indemnifying Party Section 10.4(a)
Losses Section 10.2
Purchase Price Allocation Section 2.3(c)
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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 (including the representations and warranties made
and relied upon hereunder), Sellers hereby agree to sell, transfer, convey,
assign, and deliver to Buyer on the Closing Date, and Buyer agrees to purchase,
all of each Seller's right, title and interest as of the Closing Date in all of
the tangible and intangible assets used or useful in connection with the
conduct of the business and/or operations of WPBF of every type and
description, wherever located, whether or not reflected on the books and
records of Sellers, 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, liens, security
interests, mortgages, pledges, encumbrances, or restrictions (except for
Permitted Liens), including the following:
(a) The Tangible Personal Property;
(b) The Real Property Interests;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles;
(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/or operation of WPBF;
(g) All claims or causes of action of either Seller relating
to WPBF to the extent they relate to the period after the Effective Time; and
(h) All books and records, including files, books of account,
computer programs, tapes, electronic data processing software, customer lists,
and other records relating to the Assets or the business or operations of WPBF,
including copies of the Assumed Contracts, and FCC logs and other records
required by the FCC as of the Closing Date to be maintained at WPBF and/or on
file with the FCC;
(i) All insurance proceeds arising out of or related to
damage, destruction, or loss of any property or asset used in the business and
operations of WPBF on the date of this Agreement to the extent of any damage or
destruction that remains unrepaired, or to the extent any destroyed property or
asset that remains unreplaced, at the Closing Date;
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(j) All security deposits under any Assumed Contract to the
extent a credit was made in favor of Sellers as a result of such security
deposits in making prorations pursuant to Section 2.3(a);
(k) To the extent not included in (a) through (h) above, all
orders and agreements now existing, or entered into in the ordinary course of
business between the date of this Agreement and the Closing Date, for the sale
of advertising time on WPBF except for those which on the Closing Date have
already been filled or have expired;
(l) To the extent not included in (a) through (h) above, all
prepaid expenses as of the Closing Date to the extent a credit was made in
favor of Sellers as a result of such prepaid expenses in making prorations
pursuant to Section 2.3(a);
(m) To the extent not included in (a) through (h) above, all
programs, program rights, program licenses, and programming materials and
elements of whatever form or nature owned by either Seller as of the date of
this Agreement and used in connection with the business or operations of WPBF,
whether recorded on film, tape or any other medium or intended for live
performance, television broadcast, or other medium and whether completed or in
production (such as outlines, scripts or otherwise), and all related common-law
and statutory copyrights owned by, issued to, or held by either Seller and used
in connection with the business or operations of WPBF, together with all such
programs, materials, elements, and copyrights acquired by either Seller in
connection with the business or operations of WPBF between the date of this
Agreement and the Closing Date, but excluding those rights and/or materials
consumed or expired between the date of this Agreement and the Closing Date;
(n) To the extent not included in (a) through (h) above, and
to the extent transferable, all of Sellers' rights under manufacturers' and
vendors' warranties relating to the Assets and, if said rights are not
assignable to Buyer, the Sellers agree to enforce such rights to Buyer's
benefit at Buyer's sole expense; and
(o) All of each Seller's goodwill in, and going concern value
of, WPBF.
2.2 Excluded Assets. The Assets shall exclude the following:
(a) Each Seller's cash and cash equivalents on hand as of the
Closing and any of either Seller's interest in its bank or savings accounts and
any stocks, bonds, certificates of deposit and similar investments;
(b) All Accounts Receivable;
(c) Any insurance policies, promissory notes, amounts due to
either Seller from employees, bonds, letters of credit, certificates of
deposit, or other similar items, and any cash surrender value in regard
thereto;
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(d) Any pension, profit-sharing, or employee benefit plans;
(e) All tax returns and supporting materials, all original
financial statements and supporting materials, all of Sellers' corporate minute
books and other books and records related to internal corporate matters and
financial relationships with Sellers' lenders and Affiliates, all books and
records that either Seller is required by law to retain, and all records of
either Seller relating to the sale of the Assets;
(f) Any interest in and to any refunds of Taxes for periods
prior to the Closing Date;
(g) Any assets and properties of either Seller that are
disposed of prior to the Closing Date in compliance with this Agreement;
(h) Deposits and prepaid expenses for which Sellers do not
receive a credit under Section 2.3 and deposits under utility and similar
agreements to the extent not reflected in the adjustments made pursuant to
Section 2.3;
(i) Any claim or cause of action by either Seller relating to
the period before the Effective Time;
(j) Any collective bargaining agreements; and
(k) All assets described on Schedule 2.2.
2.3 Purchase Price. The Purchase Price for the Assets shall be
Eighty-Five Million Dollars ($85,000,000.00), adjusted as provided below:
(a) Prorations. The Purchase Price shall be increased or
decreased as required to effectuate the proration of revenues and expenses.
All revenues and expenses arising from the operations of WPBF, including
revenues and expenses arising under Assumed Contracts, tower rental (and
related fees, commissions, and tower management expenses), business and license
fees, utility charges, real and personal property taxes and assessments levied
against the Assets, property and equipment rentals, applicable copyright or
other fees, sales and service charges, Taxes (except for Taxes arising from the
transfer of the Assets under this Agreement), employee compensation with
respect to Employees who are hired by Buyer (including wages and salaries, but
excluding, unless Buyer and Sellers otherwise agree, accrued sick leave,
severance pay, and earned vacation time), security deposits, and similar
prepaid and deferred items, shall be prorated between Buyer and Sellers in
accordance with the principle that Sellers shall receive all revenues and be
responsible for all expenses, costs, and liabilities allocable to the
operations of WPBF for the period prior to the Effective Time, and Buyer shall
receive all revenues and be responsible for
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all expenses, costs, and obligations allocable to the operations of WPBF for
the period after the Effective Time, subject to the following:
(1) There shall be no adjustment for, and Sellers
shall remain solely liable with respect to, liabilities and obligations under
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.
(2) There shall be no adjustment for any difference
between the value of the goods or services to be received by Sellers as of the
Closing Date under trade or barter agreements relating to WPBF and the value of
any advertising time remaining to be run by Sellers as of the Closing Date
under trade or barter agreements relating to WPBF. Notwithstanding the
foregoing, an adjustment and proration shall be made in favor of Buyer to the
extent that the amount of any advertising time remaining to be run by WPBF
under trade or barter agreements as of the Closing Date exceeds the value of
the goods or services to be received by WPBF as of the Closing Date by more
than $60,000.
(3) Payments due under film or programming license
agreements for the month in which the Closing occurs shall be prorated based on
the number of days in such month before the Closing Date and the number of days
in such month on and after the Closing Date.
(4) There shall be no proration for, and Sellers
shall remain solely liable for, accrued sick leave, severance pay, or earned
vacation time of the Employees accrued or earned prior to the Closing Date.
Sellers shall be responsible for the payment of all compensation and
commissions owed to WPBF employees up to the Effective Time. Buyer may, as of
the Effective Time, employ those employees as Buyer may elect on terms and
conditions determined by Buyer, and Buyer shall be responsible for the payment
of all compensation and commissions payable to WPBF employees retained by Buyer
after the Effective Time.
(5) There shall be no proration of music license
fees. Sellers are responsible for filing and paying all music license fees
(ASCAP, BMI, SESAC, etc.) due and payable as of the Effective Time, and Buyer
is responsible for filing and paying all such fees after the Effective Time.
(b) Manner of Determining Adjustments. The Purchase Price,
taking into account the adjustments and prorations pursuant to Section 2.3(a),
will be determined finally in accordance with the following procedures:
(1) Sellers shall prepare and deliver to Buyer not
later than five (5) business days before the Closing Date a preliminary
settlement statement which shall set forth Sellers' good faith estimate of the
adjustments to the Purchase Price under Section 2.3(a). The preliminary
settlement statement shall contain all information reasonably necessary to
determine the adjustments to the Purchase Price under Section 2.3(a), to the
extent such adjustments can be
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determined or estimated as of the date of the preliminary settlement statement,
and such other information as may be reasonably requested by Buyer, and shall
be certified by Sellers to be Sellers' good faith estimate as of the date
thereof.
(2) As promptly as practical after the Closing, but
in any event not later than sixty days after the Closing Date, Buyer will
deliver to Sellers a statement setting forth Buyer's determination of the
Purchase Price and the calculation thereof pursuant to Section 2.3(a). Buyer's
statement shall contain all information reasonably necessary to determine the
adjustments to the Purchase Price under Section 2.3(a), and such other
information as may be reasonably requested by either Seller, and shall be
certified by Buyer to be true and complete as of the date thereof. If Sellers
dispute the amount of the Purchase Price determined by Buyer, they shall
deliver to Buyer within thirty days after their receipt of Buyer's statement a
statement setting forth their determination and calculation of the amount of
the Purchase Price. If Sellers notify Buyer of their acceptance of Buyer's
statement, or if Sellers fail to deliver its statement within the thirty-day
period specified in the preceding sentence, Buyer's determination of the
Purchase Price shall be conclusive and binding on the parties as of the last
day of the thirty-day period.
(3) Buyer and Sellers shall use good faith efforts
to resolve any dispute involving the determination of the Purchase Price. If
the parties are unable to resolve the dispute within fifteen days following the
delivery of Sellers' statement pursuant to Section 2.3(b)(2), Buyer and Seller
shall jointly designate an independent certified public accountant, who shall
be knowledgeable and experienced in the operation of television broadcasting
stations, to resolve the dispute. If the parties are unable to agree on the
designation of an independent certified public accountant, the selection of the
accountant to resolve the dispute shall be submitted to arbitration in
accordance with Section 11.3. The accountant's resolution of the dispute shall
be final and binding on the parties, and a judgment may be entered thereon in
any court of competent jurisdiction. Any fees of this accountant shall be
split equally between the parties.
(c) Allocation of Purchase Price. The Purchase Price shall
be allocated among the Assets purchased by Buyer from each Seller for all
purposes (including Tax and financial accounting purposes) in the manner set
forth in a schedule to be agreed to by Buyer and Sellers on or prior to the
Closing Date; provided, however, that the agreement of Buyer and Sellers as to
such allocation shall not be a condition to any party's obligations at the
Closing. Such allocation of the Purchase Price (the "Purchase Price
Allocation") shall be consistent with Section 1060 of the Internal Revenue
Code. Each of the parties to this Agreement agrees not to take a position on
any Tax return, before any governmental agency charged with the collection of
any Tax, or in any judicial proceeding that is in any way inconsistent with the
Purchase Price Allocation and to cooperate with each other party in timely
filing Forms 8594 with the Internal Revenue Service that are consistent with
the Purchase Price Allocation; provided, however, that nothing herein shall
prevent Buyer and any permitted assignee of Buyer that is a "qualified
intermediary," as provided in Section 11.4, from applying the allocation
provisions of Section 1031 of the Internal Revenue Code and the Treasury
Regulations promulgated thereunder to a transfer of Assets from the "qualified
intermediary" to Buyer as provided in Section 11.4.
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2.4 Payment of Purchase Price. The Purchase Price shall be paid by
Buyer to Sellers as follows:
(a) Payment of Estimated Purchase Price At Closing. The sum
of Eighty-Five Million Dollars ($85,000,000.00), adjusted by the estimated
adjustments pursuant to Section 2.3(a) as set forth in Sellers' preliminary
settlement statement pursuant to Section 2.3(b)(1), is referred to as the
"Estimated Purchase Price." At the Closing, Buyer shall pay or cause to be
paid to or for the account of Sellers the Estimated Purchase Price by federal
wire transfer of same-day funds pursuant to wire instructions which shall be
delivered by Sellers to Buyer at least two business days prior to the Closing
Date.
(b) Payments to Reflect Adjustments.
(1) If the Purchase Price as finally determined
pursuant to Section 2.3(b) exceeds the Estimated Purchase Price, Buyer shall
pay to Sellers, in immediately available funds within five business days after
the date on which the Purchase Price is determined pursuant to Section 2.3(b),
the difference between the Purchase Price and the Estimated Purchase Price.
(2) If the Purchase Price as finally determined
pursuant to Section 2.3(b) is less than the Estimated Purchase Price, Sellers
shall pay to Buyer, in immediately available funds within five business days
after the date on which the Purchase Price is determined pursuant to Section
2.3(b), the difference between the Purchase Price and the Estimated Purchase
Price.
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 either Seller under the Licenses and the Assumed
Contracts to the extent that either (a) the obligations and liabilities relate
to the time after the Effective Time or (b) the Purchase Price was reduced
pursuant to Section 2.3(a) as a result of the proration of such obligations and
liabilities.
2.6
Liabilities Not Assumed. Any provision of this Agreement to the
contrary notwithstanding (and without implication that Buyer is assuming any
liability not expressly excluded and, where applicable, without implication
that any of the following have been included in the liabilities described in
Section 2.5), except for the liabilities described in Section 2.5, Buyer shall
not assume by virtue of this Agreement or the transactions contemplated hereby
and, shall have no liability for, any obligations or liabilities of the Sellers
of any kind, character, or description whatsoever, including without limitation
the following liabilities:
(a) any of Sellers' obligations hereunder;
(b) any liabilities relating to any of the Excluded Assets,
or any obligations or liabilities under any Contract not included in the
Assumed Contracts;
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(c) any obligations or liabilities under the Assumed
Contracts relating to the period prior to the Effective Time except insofar as
the Purchase Price was reduced pursuant to Section 2.3(a) as a result of the
proration of such obligations and liabilities;
(d) any liability arising from, or in connection with, the
conduct of the business and operations of WPBF or the Assets prior to the
Closing Date except insofar as the Purchase Price was reduced pursuant to
Section 2.3(a) as a result of the proration of such obligations and
liabilities;
(e) any intercompany liabilities or any liabilities by either
Seller to any of their respective shareholders, directors or officers or to any
Affiliate of either Seller or of any of their respective shareholders,
directors or officers or any liabilities relating to the capital stock of
either Seller;
(f) any liabilities to or with respect to Sellers' employees,
whether or not any such employee is offered employment by Buyer after the
Closing Date, relating in any way to such employee's employment with Sellers
prior to the Closing Date (including deferred compensation liabilities and
obligations for severance benefits, vacation time, or sick leave accrued prior
the Closing Date);
(g) any liability in respect of any past, present, or future
litigation, action, suit, proceeding or arbitration arising out of or relating
to the ownership or operation of the Assets or the business and operations of
WPBF prior to the Closing Date (whether asserted or commenced before or after
the Closing Date);
(h) any liabilities with respect to or arising from
indebtedness for borrowed money incurred or accrued before the Closing Date;
(i) without limitation by the specific enumeration of the
foregoing, any liabilities not expressly assumed by Buyer pursuant to the
provisions of Section 2.5; and
(j) any liabilities of Sellers for Taxes relating to periods
prior to the Effective Time.
SECTION 3 REPRESENTATIONS AND WARRANTIES OF SELLERS.
Each Seller jointly and severally represents and warrants to Buyer
as follows:
3.1 Organization, Standing, and Authority. Each Seller is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Florida. Each Seller has all requisite corporate power
and authority (a) to own, lease, and use the Assets as now owned, leased, and
used by it, (b) to conduct the business and operations of WPBF as now conducted
by it, and (c) to execute and deliver this Agreement and the documents
contemplated hereby, and to
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perform and comply with all of the terms, covenants, and conditions to be
performed and complied with by such Seller hereunder and thereunder. Each
Seller is duly qualified to transact business in each jurisdiction in which the
nature of its business makes such qualification necessary except where failure
to so qualify would not have a material adverse effect on the business or
operations of WPBF.
3.2 Authorization and Binding Obligation. The execution, delivery,
and performance of this Agreement by each Seller have been duly authorized by
all necessary corporate actions on the part of such Seller. This Agreement has
been duly executed and delivered by each Seller and constitutes the legal,
valid, and binding obligation of each Seller, enforceable against it in
accordance with its terms except as the enforceability of this Agreement may be
affected by bankruptcy, insolvency, or similar laws affecting creditors' rights
generally, and by judicial discretion in the enforcement of equitable remedies.
3.3 Absence of Conflicting Agreements. Subject to obtaining the
governmental Consents provided for in Section 6.1 and Section 6.2 and the other
Consents listed on Schedule 3.3, the execution, delivery, and performance of
this Agreement and the documents contemplated hereby (with or without the
giving of notice, the lapse of time, or both): (a) do not require the consent
of any third party (including any governmental or regulatory authority); (b)
will not conflict with any provision of the Articles of Incorporation or
By-Laws, as amended and/or restated, of either Seller; (c) will not violate or
result in a breach of, or contravene any law, judgment, order, ordinance,
injunction, decree, rule, regulation, or ruling of any court or governmental
instrumentality; (d) will not violate, conflict with, or result in a material
breach of any terms of, constitute grounds for termination of, constitute a
default under, or result in the acceleration of any performance required by the
terms of, any mortgage, indenture, lease, contract, agreement, instrument,
license, or permit to which either Seller is a party or by which either Seller
or any of the Assets may be bound legally or affected; and (e) will not create
any claim, liability, mortgage, lien, pledge, condition, charge, or encumbrance
or other security interest upon any of the Assets.
3.4 Governmental Licenses. Schedule 3.4 is a true and complete list
as of the date of this Agreement of all FCC Licenses, all Licenses issued by
the FAA, and all other material Licenses. Each License listed on Schedule 3.4
has been validly issued, and the Seller designated as such on Schedule 3.4 is
the authorized legal holder thereof. The Licenses listed on Schedule 3.4 are
in full force and effect, and the conduct of the business and operations of
WPBF is in accordance therewith in all material respects. Schedule 3.4 also
sets forth a true and complete list of any and all pending applications filed
with the FCC by either Seller relating to WPBF, true and complete copies of
which have been delivered to Buyer or made available for inspection by Buyer.
The FCC Licenses include all of the licenses and authorizations required under
the Communications Act and the current rules and regulations of the FCC in
connection with the conduct of the business and operations of WPBF. None of
the Licenses listed on Schedule 3.4 is subject to any restriction or condition
which would limit in any material respect the business or operation of WPBF as
now conducted. There is not, as of the date of this Agreement, pending, or to
the knowledge of either Seller threatened, any action or proceeding by or
before the FCC to revoke,
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cancel, rescind or modify (including a reduction in coverage area) any of the
FCC Licenses (other than proceedings to amend FCC rules of general
applicability) or refuse to renew the FCC Licenses, and there is not as of the
date of this Agreement issued or outstanding, or to the knowledge of either
Seller pending or threatened, by or before the FCC, any order to show cause,
notice of violation, notice of apparent liability, or notice of forfeiture or
material complaint against either Seller with respect to WPBF, other than
regularly scheduled license renewal proceedings. There are no unsatisfied
notices of violation or notices of apparent liability to monetary forfeiture
issued by the FCC to Sellers with respect to WPBF or its operations. To
Sellers' knowledge, there exist no facts, conditions or events relating to
Sellers or WPBF that would cause the denial of an application or consent from
the FCC with respect to the assignment of the FCC Licenses as provided in this
Agreement. As of the date of this Agreement, there is no proceeding pending
or, to Sellers' knowledge, threatened, seeking the revocation or limitation of
any Licenses other than FCC Licenses.
3.5 Real Property. Schedule 3.5 contains a complete and accurate
description of all the Real Property and Sellers' interests therein (including
street address (where known), legal description (where known), owner, and
Sellers' use thereof). The Real Property listed on Schedule 3.5 comprises all
Real Property Interests used to conduct the business and operations of WPBF as
now conducted. Except as set forth on Schedule 3.5, Seller has good and
marketable fee simple title to all fee estates included in the Real Property
Interests and good title to all other Real Property Interests, in each case
free and clear of all liens, security interests, mortgages, pledges,
encumbrances, or restrictions, except for Permitted Liens. All guy wires, guy
anchors, satellite dishes, associated transmission equipment, transmitter
buildings, main studio buildings, associated parking lots, and other buildings
and other improvements included in the Assets are all located entirely on and
within the boundaries of the Real Property listed in Schedule 3.5. As of the
date hereof, all Real Property (including the improvements thereon) is
available for immediate use in the conduct of the business and operations of
WPBF and complies in all material respects with all applicable building or
zoning codes and the regulations of any government authority having
jurisdiction, except to the extent the current use, while permitted,
constitutes a "nonconforming use" under current zoning or land use regulations.
Sellers have full and unfettered legal access to all of the Real Property
listed on Schedule 3.5. Sellers have delivered or made available to Buyer true
and complete copies of all deeds and other instruments evidencing Real Property
Interests. Except for that portion of the Real Property and Real Property
Interests subject to leases where either Seller is lessor or sublessor (as
identified on Schedule 3.5), such Seller is in possession of the Real Property.
As of the date of this Agreement, there are no pending or, to the knowledge of
Sellers, threatened condemnation or appropriation proceedings against any of
the Real Property or the Real Property Interests.
3.6 Tangible Personal Property. Schedule 3.6 lists all material
items of Tangible Personal Property. Except as described in Schedule 3.6, the
Seller designated as such on Schedule 3.6 owns and has good title to each item
of Tangible Personal Property and none of the Tangible Personal Property is
subject to any liens, security interests, mortgages, pledges, encumbrances, or
restrictions, except for Permitted Liens. All items of transmitting and studio
equipment
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included in the Tangible Personal Property are sufficient to permit WPBF, and
any unit auxiliaries thereto, to operate, and WPBF is operating, in all
material respects, in accordance with the terms of the FCC Licenses and the
rules and regulations of the FCC (other than FCC engineering specifications).
3.7 Entire Business. The Assets together with the Excluded Assets
constitute all of the assets, rights, and properties of Sellers used or useful
in the business and operations of WPBF as currently conducted.
3.8 Contracts. Schedule 3.8 is a true and complete list as of the
date of this Agreement of all Contracts except contracts with advertisers for
production or sale of advertising time on WPBF for cash at rates consistent
with Sellers' past practices that may be canceled by a Seller without penalty
on not more than ninety days' notice. Seller has delivered or made available
to Buyer true and complete copies of all written Assumed Contracts and accurate
descriptions of all oral Assumed Contracts listed on Schedule 3.8. All of the
Assumed Contracts are in full force and effect and are valid and binding
agreements of either or both Sellers enforceable in accordance with their
terms. Sellers are not in default in any material respect under any of the
Assumed Contracts, nor does any condition exist that with the notice or lapse
of time or both would constitute such a default. Except for the need to obtain
the Consents listed on Schedule 3.3, each 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.
3.9 Consents. Except for the governmental Consents provided for in
Section 6.1 and Section 6.2 and the other Consents described in Schedule 3.3,
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 to consummate this Agreement and the transactions contemplated hereby,
or to permit Sellers to assign or transfer the Assets to Buyer.
3.10 Intangibles. Schedule 3.10 is a true and complete list as of the
date of this Agreement of all material Intangibles (exclusive of Licenses
listed in Schedule 3.4), all of which are valid and subsisting. Other than
with respect to matters generally affecting the television broadcasting
industry and not particular to either Seller, neither Seller is aware of or has
received any notice or demand alleging that it is infringing upon or otherwise
acting adversely to any trademarks, trade names, service marks, service names,
copyrights, patents, patent applications, trade secrets, know-how, methods, or
processes owned or licensed by any other Person, nor is either Seller aware
that any other Person is infringing upon or acting adversely to any of the
Intangibles or any rights of Sellers therein.
3.11 Financial Statements. Sellers have furnished Buyer with true and
complete copies of a balance sheet and income statement of Sellers with respect
to WPBF as at December 31, 1995 and for the year then ended and true and
complete copies of a balance sheet and income statement of Sellers with respect
to WPBF as at December 31, 1996 and for the twelve-month period then
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ended (collectively, the "Financial Statements"). The Financial Statements
have been prepared from the books and records of Sellers, have been prepared in
accordance with generally accepted accounting principles consistently applied
and maintained throughout the periods indicated and present fairly, in all
material respects, the financial condition of WPBF as at their respective dates
and the results of operations for the periods then ended. As of December 31,
1996, there was no material direct or indirect indebtedness, liability, claim,
loss, damage, deficiency, obligation, or responsibility, fixed or unfixed,
xxxxxx or inchoate, liquidated or unliquidated, secured or unsecured, accrued,
absolute, contingent, or otherwise, relating to the Assets, of a kind required
by generally accepted accounting principles to be set forth on a financial
statement that was not adequately reflected or reserved against on the
Financial Statements as at December 31, 1996 in the manner required by
generally accepted accounting principles.
3.12 Insurance. Schedule 3.12 is a true and complete list as of the
date of this Agreement of all insurance policies and binders of Sellers that
insure any part of the Assets, Employees, or the business and/or operations of
WPBF. All policies of insurance and binders listed in Schedule 3.12 are in
full force and effect and no notice of cancellation or non-renewal has been
received with respect to any such policy or binder. The Sellers are not in
default with respect to any material provision contained in any such policy or
binder and there are no outstanding unpaid claims related to WPBF as to which
the carrier has disclaimed liability.
3.13 Reports. All returns, reports, and statements that either Seller
was required to file with the FCC or FAA with respect to the business or
operations of WPBF have been filed, and Sellers have complied with all
reporting requirements of the FCC and FAA relating to WPBF in all material
respects. All of such returns, reports, and statements, as filed, satisfy all
applicable legal requirements in all material respects.
3.14 Absence of Certain Changes. Except as set forth on Schedule
3.14, since December 31, 1996, (i) there has been no material adverse change in
the assets or properties of WPBF, and (ii) Sellers have conducted the business
and operations of WPBF only in the ordinary course consistent with past
practice.
3.15 Personnel.
(a) Employees and Compensation. Schedule 3.15 contains a
true and complete list as of the date of this Agreement of all employees of
either Seller engaged in the business and operations of WPBF (collectively, the
"Employees") and a description of all compensation arrangements affecting them.
Except as set forth on Schedule 3.8, neither Seller has any contracts of
employment (other than contracts of employment at will which may be terminated
with or without cause) with any employee engaged in the business and operations
of WPBF (including independent contractors).
(b) Benefit Plans. Except as set forth on Schedule 3.15,
Sellers do not maintain with respect to the Employees, and are not required
with respect to the Employees to make
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contributions to, any "employee benefit plan" (within the meaning of Section
3(3) of ERISA), including, without limitation, any pension, welfare, or savings
plan or arrangement, or any employee stock purchase or stock option, severance,
vacation or holiday pay, sick leave, performance, bonus, incentive, or
insurance plan or arrangement (each, a "Benefit Plan") and related trust
agreements. Sellers have made available to Buyer copies of any Benefit Plan
which relates to or covers any of the Employees and related trust agreements as
in effect on the date hereof.
(c) Multiemployer Plans. Neither Seller has at any time been
a participant in any "multiemployer pension plan," as defined in Section 3(37)
of ERISA, that covers any Employee.
(d) Labor Relations. Each Seller is in compliance in all
material respects with all laws, rules, and regulations relating to the
employment of labor, including those related to wages, hours, collective
bargaining, occupational safety, discrimination, and the payment of social
security and other payroll related taxes, and neither Seller has received any
notice alleging that it has failed to comply with any such laws, rules, or
regulations. Except as disclosed on Schedule 3.17, no controversies, disputes,
or proceedings are pending or, to either Seller's knowledge, threatened,
between either Seller and any Employee. No labor union or other collective
bargaining unit represents or, to Sellers' knowledge, claims to represent any
of the employees of WPBF. To Sellers' 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 WPBF.
3.16 Taxes. There are no legal, administrative, or tax proceedings
pursuant to which either Seller is or could be made liable for any Taxes, the
liability for which could extend to Buyer as transferee of the Assets, and no
event has occurred that could impose on Buyer any transferee liability for any
Taxes due from either Seller.
3.17 Claims and Legal Actions. Except as disclosed on Schedule 3.17
and except for any FCC rulemaking proceedings generally affecting the
television broadcasting industry and not particular to either Seller, as of the
date of this Agreement, there is no claim, legal action, counterclaim, suit,
arbitration, or other legal, administrative, or tax proceeding, nor any order,
decree, or judgment, in progress or pending, or to the knowledge of either
Seller threatened, against or relating to either Seller with respect to the
Assets or the business or operations of WPBF (including any of the foregoing
arising under any federal, state, or local laws, rules, or regulations relating
in any way to RF radiation, protection of or pollution to the environment,
protection of human health, or occupational safety and health), which
individually or in the aggregate could be expected to create a material adverse
change in the business or operations of WPBF or impair or hinder the ability of
either Seller to perform its obligations under this Agreement.
3.18 Compliance with Laws. Sellers have complied and are in
compliance with the Licenses and all federal, state, and local laws, rules,
regulations, ordinances, judgments, orders, and decrees applicable or relating
to the business and operation of WPBF (including all federal,
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state, and local laws, rules, and regulations relating in any way to RF
radiation, protection of or pollution to the environment, protection of human
health, and occupational safety and health), except for any noncompliance by
either Seller that would not have a material adverse effect on the business or
operations of WPBF or impair or hinder the ability of either Seller to perform
its obligations under this Agreement. In connection with their ownership or
operation of WPBF, Sellers have obtained and been in compliance with all
permits, licenses, registrations, and other consents that are required under
any federal, state, or local laws, rules, or regulations relating in any way to
RF radiation, protection of or pollution to the environment, protection of
human health, or occupational safety and health, except where the failure to
obtain or comply with any such permit, license, registration, or other consent
would not have a material adverse effect on the business or operations of WPBF
or impair or hinder the ability of either Seller to perform its obligations
under this Agreement.
3.19 Transactions with Affiliates. Except as set forth on Schedule
3.19, there are no agreements relating to the business of WPBF between either
Seller and any of its Affiliates (other than the other Seller), neither Seller
has been involved in any material business arrangement or relationship relating
to WPBF with any of its Affiliates (other than the other Seller), and no
Affiliate of either Seller (other than the other Seller) owns any material
property or right, tangible or intangible, that is used in the business or
operations of WPBF.
3.20 Environmental Matters. Except as disclosed on Schedule 3.20, no
substances regulated under or subject to any federal, state, or local laws,
rules, regulations, or ordinances relating to the protection of or pollution to
the environment, including without limitation, PCBs, CFCs, asbestos, hazardous
substances, hazardous materials, hazardous waste, toxic substances, radioactive
materials, oils, hydrocarbons, photographic chemicals and photographic
developing and processing products, and other pollutants and contaminants, are
in, on, under, or about the Real Property in quantities that require
remediation under such laws.
3.21 Disclosure. No representation, warranty, or covenant made by
Sellers in this Agreement or the schedules or exhibits hereto, taken as a
whole, contains any untrue statement of a material fact, or omits to state a
material fact necessary to make the statements contained herein and therein,
taken as a whole, not misleading in the light of the circumstances under which
they were made.
SECTION 4 REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to each Seller as follows:
4.1 Organization, Standing, and Authority. Buyer is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware and, on the Closing Date, will be duly qualified to conduct
business in the State of Florida. Buyer has all requisite corporate power and
authority to execute and deliver this Agreement and the documents contemplated
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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
governmental Consents provided for in Section 6.1 and Section 6.2, 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): (a) do not require the consent of any third party
(including any governmental or regulatory authority); (b) will not conflict
with the Articles or Incorporation or By-Laws, as amended and/or restated, of
Buyer; and (c) will not violate, conflict with, or result in a breach of, or
constitute a default under, any law, judgment, order, injunction, decree, rule,
regulation, or ruling of any court or governmental instrumentality; or (d) will
not violate, 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 mortgage, indenture, lease,
contract, agreement, instrument, license, or permit to which Buyer is a party
or by which Buyer may be bound legally or affected.
4.4 Buyer Qualifications. Buyer is legally, financially and
otherwise qualified to be the licensee of, acquire, own and operate WPBF under
the Communications Act, as now in effect, and the rules, regulations and
policies of the FCC as now in effect. Buyer knows of no fact that would, under
existing law and the existing rules, regulations, policies and procedures of
the FCC (a) disqualify Buyer as an assignee of the FCC Licenses or as the owner
and operator of WPBF or (b) cause the FCC to fail to approve in a timely
fashion the application for the FCC Consent.
4.5 Disclosure. No representation, warranty, or covenant made by
Buyer in this Agreement or the schedules or exhibits hereto, taken as a whole,
contains any untrue statement of a material fact, or omits to state a material
fact necessary to make the statements contained herein and therein, taken as a
whole, not misleading in the light of the circumstances under which they were
made.
SECTION 5 OPERATIONS OF WPBF PRIOR TO CLOSING.
Between the date of this Agreement and the Closing Date, Sellers shall
comply with the covenants in this Section 5:
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5.1 Generally. From the date hereof until the Closing Date,
except as may be expressly permitted or contemplated by this Agreement
or as otherwise agreed to in writing by Buyer, Sellers shall conduct
the business and operations of WPBF in the usual, regular, and
ordinary course consistent with past practice, and shall use
commercially reasonable efforts to preserve intact the business and
operations of WPBF, keep available the services of its Employees, and
preserve its relationships with customers, suppliers, licensees,
licensors, distributors, agents, lessors, lessees, and others having
business dealings with WPBF and the Sellers, and to comply in all
material respects with all Contracts. From the date hereof until the
Closing Date, Sellers shall (i) maintain their inventory of supplies,
parts, spare parts, and other materials and keep their books of
account, records, and files in the ordinary course of business
consistent with past practice, (ii) maintain their promotional
activities and expenditures in the ordinary course of business
consistent with past practice, and (iii) operate and maintain all of
the Assets consistent with past practice. From the date hereof until
the Closing Date, Sellers will sell or cause to be sold advertising
time with respect to WPBF only in the ordinary course of business
consistent with past practice, and will not enter into any advertising
sales contracts for WPBF with a term greater than one year or any
barter or trade arrangements for more than $60,000 of airtime. From
the date hereof until the Closing Date, Sellers shall not materially
increase the aggregate compensation payable to the Employees of WPBF
taken as a whole.
5.2 Contracts. Sellers will not amend in any material
respect or terminate any Material Contract (or waive any material
right thereunder), or enter into any contract or commitment
relating to WPBF or the Assets, or incur any obligation that will be
binding on Buyer after Closing, except for (a) cash time sales
agreements and production agreements made in the ordinary course of
business, (b) trade or barter agreements made in the ordinary course
of business, and (c) other contracts entered into in the ordinary
course of business that do not involve consideration, in the
aggregate, in excess of $500,000 measured at Closing. Prior to the
Closing Date, Sellers shall deliver to Buyer a list of all Contracts
entered into between the date of this Agreement and the Closing Date
and shall make available to Buyer copies of such Contracts. On or
before March 31, 1997, Sellers will deliver or make available to Buyer
a true and complete copy (excluding disclosure schedules) of the
agreement for the sale by Xxxxxx Communications of Ft. Xxxxxx-34, Inc.
of its interest in television station WTVX-TV, Ft. Xxxxxx, Florida.
5.3 Disposition of Assets. Neither Seller shall sell, assign,
lease, or otherwise transfer or dispose of any of the Assets, except
where no longer used in the business or operations of WPBF or in
connection with the acquisition of replacement property of equivalent
kind and value.
5.4 Encumbrances. Neither Seller shall create, assume
or permit to exist any liens, security interests, mortgages, pledges,
encumbrances, or restrictions upon the Assets, except for Permitted
Liens and liens that will be removed prior to the Closing Date.
5.5 Licenses. Neither Seller shall cause or permit, by any
act or failure to act, any of the Licenses listed on Schedule 3.4 to
expire without renewal or to be revoked, suspended, or modified.
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5.6 Access to Information. Sellers shall give Buyer and its
counsel, accountants, engineers, and other authorized representatives
reasonable access, upon reasonable notice, to the Assets, the business
and operations of WPBF, and to all other books, records, and documents
of Sellers relating to WPBF for the purpose of audit and inspection,
and will furnish or cause to be furnished to Buyer or its authorized
representatives, upon reasonable notice, all information with respect
to the affairs and business of WPBF that Buyer may reasonably request.
Without limiting the foregoing, Buyer shall have the right to inspect
the Assets within twenty days prior to Closing to ascertain whether
any Event of Loss has occurred.
5.7 Insurance. Sellers shall maintain the existing insurance
policies on the Assets or other policies providing substantially
similar coverages.
5.8 Consents. Sellers shall (consistent with Section 6.6) use
reasonable efforts to obtain all Consents, without any change in the
terms or conditions of any Assumed Contract or License that could
reasonably be expected to be materially less advantageous to Buyer
than those pertaining under the Assumed Contract or License as in
effect on the date of this Agreement. Seller shall promptly advise
Buyer of any difficulties experienced in obtaining any of the Consents
and of any conditions proposed, considered, or requested for any of
the Consents.
5.9 Financial Information. Sellers shall furnish Buyer within
thirty days after the end of each month ending between the date of
this Agreement and the Closing Date statement of income and expense
for the month just ended, a balance sheet as at the last day of the
month then ended, and such other financial information as Buyer may
reasonably request.
5.10 Compliance with Laws. Sellers shall comply in all
material respects with all laws, rules, and regulations, including FCC
rules and regulations, and all Licenses, including FCC Licenses,
applicable or relating to the business and operations of WPBF.
5.11 Advice as to Certain Changes. Sellers shall promptly
advise Buyer of any change or event resulting in, or which Sellers
believe may reasonably be expected to result in a material adverse
change in the assets, properties, or condition of WPBF, taken as a
whole.
5.12 Matters. Sellers will promptly deliver to Buyer copies
of any reports, applications or communications to or from the FCC or
its staff related to WPBF which are delivered or received between the
date of this Agreement and the Closing Date. Sellers shall provide
Buyer with a reasonable opportunity to review and comment on such
applications prior to filing. Sellers shall promptly advise Buyer of
any communications to or from the FCC or its staff with respect to
WPBF and Sellers shall keep Buyer informed of the status of any
negotiations with the FCC or its staff and consult with Buyer, in
advance, with respect to any agreements or undertakings with the FCC
or its staff regulating the programming or its operation of WPBF that
would continue after the Closing Date.
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SECTION 6 SPECIAL COVENANTS AND AGREEMENTS.
6.1 FCC Consent.
(a) The assignment of the FCC Licenses in connection with the
purchase and sale of the Assets pursuant to this Agreement shall be subject to
the prior consent and approval of the FCC.
(b) Sellers and Buyer shall prepare and file with the FCC on
or before March 31, 1997, an appropriate application for the FCC Consent. The
parties shall prosecute the application with all reasonable diligence and
otherwise use reasonable 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, in its reasonable judgment, be
burdensome in any material respect (financial or otherwise) on it. Buyer and
Sellers shall oppose any petitions to deny or other objections filed with
respect to any applications for the FCC Consent and any requests for
reconsideration or judicial review of the FCC Consent. If the Closing shall
not have occurred for any reason within the original effective period of the
FCC Consent, and neither party shall have terminated this Agreement under
Section 9, the parties shall jointly request an extension of the effective
period of the FCC Consent. No extension of the FCC Consent shall limit the
right of any party to exercise its rights under Section 9.
6.2 HSR Act Filing. Sellers and Buyer agree to (a) file, or cause to
be filed, with the U.S. Department of Justice ("DOJ") and Federal Trade
Commission ("FTC") all filings, if any, that are required in connection with
the transactions contemplated hereby under the HSR Act on or before April 7,
1997; (b) submit to the other party, prior to filing, their respective HSR Act
filings to be made hereunder, and to discuss with the other any comments the
reviewing party may have; (c) cooperate with each other in connection with such
HSR Act filings, which cooperation shall include furnishing the other with any
information or documents that may be reasonably required in connection with
such filings; (d) promptly file, after any request by the FTC or DOJ and after
appropriate negotiation with the FTC or DOJ of the scope of such request, any
information or documents requested by the FTC or DOJ; and (e) furnish each
other with any correspondence from or to, and notify each other of any other
communications with, the FTC or DOJ that relates to the transactions
contemplated hereunder, and to the extent practicable, to permit each other to
participate in any conferences with the FTC or DOJ.
6.3 Control of WPBF. Prior to Closing, Buyer shall not, directly or
indirectly, control, supervise, direct, or attempt to control, supervise, or
direct, the operations of WPBF; such operations, including complete control of
WPBF's programs, employees, and policies, shall be the sole responsibility of
WPBF's licensee.
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6.4 Risk of Loss.
(a) The risk of any loss, damage, confiscation, or
condemnation of any of the Assets from any cause whatsoever shall be borne by
Sellers at all times prior to the completion of the Closing.
(b) If any substantial part of the Assets is lost, damaged,
destroyed, condemned, or confiscated prior to the Closing Date or any other
event occurs that results in (i) taking WPBF off-the-air for a period of three
consecutive days or more, or (ii) preventing a signal transmission by WPBF in
the normal and usual manner in all material respects for a period of seven days
or more (any such event being referred to as an "Event of Loss"), Sellers shall
notify Buyer of the foregoing in writing within five business days. Within
five business days of receipt of Sellers' written notification pursuant to the
preceding sentence, Buyer shall notify Sellers in writing of its election:
(1) to require that Sellers undertake to remedy the
Event of Loss, in which event Sellers shall use commercially reasonable efforts
to replace or repair the Assets with comparable property of like value and
quality or otherwise to remedy the Event of Loss as soon as practicable; or
(2) to terminate this Agreement in accordance with
Section 9.2(d). If Buyer fails to notify Sellers within five business days of
receipt of Sellers' notification pursuant to this Section 6.4(b), Buyer shall
be deemed to have elected under Section 6.4(b)(1) to require Sellers to
undertake to remedy the Event of Loss.
(c) If the Event of Loss is not remedied before the date on
which the Closing would otherwise occur pursuant to Section 8.1(a)(1), then
Buyer may elect, by delivering written notice of its election to Sellers at
least five days prior to the date on which the Closing would otherwise occur
pursuant to Section 8.1(a)(1):
(1) to require that the Closing be postponed until
after the Event of Loss has been remedied, or
(2) to require that the Closing occur on the date
provided in Section 8.1(a)(1), in which event (A) Sellers shall deliver to
Buyer at Closing all remaining insurance proceeds received, to the extent not
already expended by Sellers in connection with the remedy of the Event of Loss,
and (B) Buyer shall bear any additional costs or expenses incurred by Buyer, in
excess of such insurance proceeds, in completing such remedy of the Event of
Loss. If Buyer fails to notify Sellers at least five business days prior to
the date on which the Closing would otherwise occur pursuant to Section
8.1(a)(1) of its election pursuant to this Section 6.4(c), Buyer shall be
deemed to have elected under Section 6.4(c)(2) to require that the Closing
occur on the date provided in Section 8.1(a)(1).
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6.5 Confidentiality.
(a) Except as and to the extent required by law, each party
will keep confidential any information obtained from the other party in
connection with the transactions contemplated by this Agreement other than
information generally available to the public, information received from third
parties having the right to disclose such information, information
independently developed by the receiving party, or information required by law
to be disclosed. If this Agreement is terminated, each party will return to
the other party all information obtained by the such party from any other party
in connection with the transactions contemplated by this Agreement or destroy
such information and provide the other party with a certificate of destruction.
(b) No party shall publish any press release or make any
other public announcement concerning this Agreement or the transactions
contemplated hereby without the prior written consent of each other party,
which shall not be withheld unreasonably; provided, however, that nothing
contained in this Agreement shall prevent any party, after notification to each
other party, from making any filings with governmental authorities that, in its
judgment, may be required or advisable in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
6.6 Cooperation. Buyer and Sellers shall cooperate fully with each
other and their respective counsel and accountants in connection with any
actions required to be taken as part of their respective obligations under this
Agreement, and Buyer and Sellers shall use all reasonable efforts to take or
cause to be taken all actions necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement, including making such filings with governmental
and regulatory authorities, providing information and using reasonable efforts
to obtain all necessary or appropriate waivers, consents and approvals, and
executing such other documents as may be necessary and desirable to the
implementation and consummation of this Agreement, and otherwise use reasonable
efforts to consummate the transaction contemplated hereby and to fulfill their
obligations under this Agreement. Notwithstanding the foregoing, and except as
otherwise expressly provided in this Agreement, no party shall have any
obligation to expend funds to obtain any of the Consents (other than any fee
payable to the FCC in connection with the filing of the applications for FCC
Consent and any fee imposed by the FTC in connection with filings made pursuant
to the HSR Act, in each case to the extent provided in Section 11.1).
6.7 Access to Books and Records. To the extent requested for any
reasonable business purposes hereunder, (i) Sellers shall provide Buyer access
and the right to copy for a period of five years from the Closing Date any
books and records relating to WPBF or the Assets but not included in the Assets
and (ii) Buyer shall provide Sellers access and the right to copy for a period
of five years after the Closing Date any books and records relating to WPBF or
the Assets with respect to periods prior to the Closing that are included in
the Assets. Except to the extent required by law, each party will keep
confidential information received pursuant to Section 6.7.
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6.8 Disclaimer of Further Representations. Buyer agrees that it is
purchasing and accepting the Assets without any representations or warranties,
except for the representations and warranties specifically set forth in this
Agreement and the representations and warranties in the certificate delivered
by Sellers pursuant to Section 8.2(c). To the fullest extent permitted by law,
Buyer hereby unconditionally and irrevocably waives and releases any and all
actual or potential claims that it might have against Sellers regarding any
form of warranty, express or implied, of any kind or type, including warranties
of fitness, relating to or in connection with the purchase of the Assets, and
any warranty arising out of any statement contained in that certain
"Confidential Information Memorandum," distributed in August 1996 on behalf of
Sellers by Alex. Xxxxx & Sons Incorporated, other than the representations and
warranties specifically set forth in this Agreement and the representations and
warranties in the certificate delivered by Sellers pursuant to Section 8.2(c).
This waiver and release is, to the fullest extent permitted by law, absolute,
complete, total, and unlimited in every way and includes, to the fullest extent
permitted by law, a waiver and release of implied warranties, warranties of
fitness for a particular use, warranties of merchantability, claims based on
apparent or latent defects or deficiencies, whether now or hereafter existing,
and strict liability rights and claims of every kind and type (including claims
regarding defects that were not or are not discoverable and all other extant or
later created or conceived of strict liability or strict liability-type claims
and rights).
6.9 Collection of Accounts Receivable.
(a) Collection. On or as soon as practicable after the
Closing Date, Sellers shall deliver to Buyer a complete list of the Accounts
Receivable setting forth, with respect to each receivable, the name and address
of the account debtor, the date of the receivable, and the amount owed. At the
Closing, each Seller will designate Buyer as its agent solely for the purposes
of collecting the Accounts Receivable. Buyer will use commercially reasonable
efforts to collect the Accounts Receivable during the "Collection Period,"
which shall be the period beginning on the Closing Date and ending on the last
day of the fourth calendar month beginning after the Closing Date. Buyer shall
not make any referral or compromise of any of the Accounts Receivable to a
collection agency or attorney for collection and shall not settle or adjust the
amount of any of the Accounts Receivable without the written approval of
Sellers. If Buyer receives monies from an account debtor of Buyer that is also
an account debtor of either Seller with respect to any of the Accounts
Receivable, Buyer shall credit the sums received to the oldest account due.
(b) Reports. On or before the fifth business day after the
end of each full calendar month during the Collection Period, Buyer shall
deliver to Sellers a list of the amounts collected by Buyer before the end of
such month with respect to the Accounts Receivable. On or before the fifth
business day after the end of the Collection Period, Buyer shall deliver to
Sellers a list of all of the Accounts Receivable that remain uncollected.
(c) Deposit of Collections. Sellers shall establish and
maintain during the Collection Period (and for as long after the Collection
Period as Sellers deem appropriate) a bank
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account at a commercial bank in the West Palm Beach, Florida, metropolitan area
for the deposit of collections of the Accounts Receivable. Sellers shall have
sole disbursement authority over each such bank account. Within five (5)
business days after collecting any amounts with respect to any of the Accounts
Receivable, Buyer shall cause the amount collected to be deposited in the
appropriate bank account established by Sellers pursuant to this Section
6.9(c).
(d) Further Obligations. After the expiration of the
Collection Period, Buyer shall have no further obligation hereunder other than
(i) so long as Sellers continue to maintain the bank accounts established
pursuant to Section 6.9(c), to deposit in such accounts any payments with
respect to any of the Accounts Receivable that Buyer subsequently receives, and
(ii) thereafter, to remit directly to Sellers any payments with respect to any
of the Accounts Receivable that Buyer subsequently receives.
6.10 Noncompetition Agreement. At Closing, Buyer and PCC shall enter
into a Noncompetition Agreement in the form of Schedule 6.10.
SECTION 7 CONDITIONS TO OBLIGATIONS OF BUYER AND SELLERS AT CLOSING.
7.1 Conditions to Obligations of Buyer. All obligations of Buyer at
the Closing are subject at Buyer's option to the fulfillment prior to or at the
Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations and
warranties of Sellers contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time, except to the extent any representation or warranty fails to be true
and complete as the result of an Event of Loss with respect to which Buyer made
an election pursuant to Section 6.4(b)(1), and Buyer shall have received a
certificate dated as of the Closing Date, executed on behalf of each Seller by
an officer of such Seller, to that effect.
(b) Covenants and Conditions. Each Seller shall have
performed and complied in all material respects with all covenants, agreements,
and conditions required by this Agreement to be performed or complied with by
it prior to or on the Closing Date, and Buyer shall have received a
certificate, executed on behalf of each Seller by an officer of such Seller, to
that effect.
(c) Consents. All Consents shall have been obtained and
delivered to Buyer (other than any Consent required for the assignment of any
Assumed Contract listed on Schedule 3.8 that is not a Material Contract)
without any material adverse change in the terms or conditions of any Assumed
Contract or any License (except as Buyer may have otherwise agreed).
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Buyer of any conditions that need not be complied
with by Buyer under Section 6.1,
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each Seller shall have complied with any conditions imposed on it by
the FCC Consent, and the FCC Consent shall have become a Final Order.
(e) HSR Act. The waiting period, and any extensions thereof,
under the HSR Act shall have expired without action by the DOJ or the FTC to
prevent the Closing.
(f) Governmental Authorizations. Licensee shall be the
holder of all FCC Licenses. There shall not have been any modification of any
License that could have an adverse effect on the business and operations of
WPBF. No proceeding shall be pending or to Sellers' knowledge, threatened the
effect of which reasonably could be expected to revoke, cancel, fail to renew,
suspend, or modify adversely any FCC License.
(g) Injunction, etc. There shall not be any order
outstanding against any party hereto or law promulgated that prevents the
consummation of the transactions contemplated by this Agreement.
(h) Deliveries. Seller shall have made all the deliveries to
Buyer set forth in Section 8.2.
(i) Adverse Change. Between the date of this Agreement and
the Closing Date, there shall have been no material adverse change in the
assets, properties, or condition of WPBF, taken as a whole, including any
unrestored damage, destruction, or loss materially affecting the conduct of the
business of WPBF, which has not been waived by Buyer in accordance with the
terms of this Agreement, except to the extent that any material adverse change
results from or represents an Event of Loss with respect to which Buyer made an
election pursuant to Section 6.4(b)(1).
7.2 Conditions to Obligations of Sellers. All obligations of Sellers
at the Closing are subject at Sellers' option to the fulfillment prior to or at
the Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations and
warranties of Buyer contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time, and Sellers shall have received a certificate dated as of the
Closing Date, executed on behalf of Buyer by an officer of Buyer, to that
effect.
(b) Covenants and Conditions. Buyer shall have performed and
complied in all material respects with all covenants, agreements, and
conditions required by this Agreement to be performed or complied with by it
prior to or on the Closing Date, and Sellers shall have received a certificate,
executed on behalf of Buyer by an officer of Buyer, to that effect.
(c) FCC Consent. The FCC Consent shall have been granted
without the imposition on either Seller of any conditions that need not be
complied with by such Seller under
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Section 6.1, Buyer shall have complied with any conditions imposed on it by the
FCC Consent, and the FCC Consent shall have become a Final Order.
(d) HSR Act. The waiting period, and any extensions thereof,
under the HSR Act shall have expired without action by the DOJ or the FTC to
prevent the Closing.
(e) Injunction, etc. There shall not be any order
outstanding against any party hereto or law promulgated that prevents the
consummation of the transactions contemplated by this Agreement.
(f) Deliveries. Buyer shall have made all the deliveries set
forth in Section 8.3.
SECTION 8 CLOSING AND CLOSING DELIVERIES.
8.1 Closing.
(a) Closing Date.
(1) Except as provided in the following sentence or
in Section 8.1(a)(2) or as otherwise agreed to by Buyer and Sellers, the
Closing shall take place at 10:00 a.m. on a date, to be set by Sellers on at
least five days' written notice to Buyer, which shall be not earlier than the
first business day after and not later than the twentieth business day after
the later of (A) the day on which the FCC Consent becomes a Final Order and (B)
the day on which the waiting period under the HSR Act shall have expired. If
Sellers fail to specify the date for Closing pursuant to the preceding sentence
prior to the fifteenth business day after the later of (A) the day on which the
FCC Consent becomes a Final Order and (B) the day on which the waiting period
under the HSR Act shall have expired, the Closing shall take place on the
twentieth business day after the later of (A) the day on which the FCC Consent
becomes a Final Order and (B) the day on which the waiting period under the HSR
Act shall have expired.
(2) If any Event of Loss occurs and Buyer makes an
election pursuant to Section 6.4(c)(1), the Closing shall take place on a date,
to be set by Sellers on at least five days' written notice to Buyer, after the
Event of Loss has been remedied.
(b) Closing Place. The Closing shall be held at the offices
of Dow, Xxxxxx & Xxxxxxxxx, PLLC, 0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000, or any other place that is agreed upon by Buyer and
Sellers.
8.2 Deliveries by Sellers. Prior to or on the Closing Date, Sellers
shall deliver to Buyer the following, in form and substance reasonably
satisfactory to Buyer and its counsel:
(a) Transfer Documents. Duly executed instruments of
conveyance and transfer, including warranty deeds, bills of sale, motor vehicle
titles, assignments, and other transfer
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documents, all in form and substance reasonably satisfactory to Buyer, that are
sufficient to vest good and marketable title to the Assets in the name of
Buyer, free and clear of all liens, security interests, mortgages, pledges,
encumbrances, or restrictions except for Permitted Liens.
(b) Consents. A copy any instrument evidencing any Consent
received by Sellers prior to the Closing.
(c) Certificate. A certificate, dated as of the Closing
Date, executed on behalf of each Seller by an officer of such Seller,
certifying (1) that the representations and warranties of Sellers contained in
this Agreement are true and complete in all material respects as of the Closing
Date as though made on and as of that date (except for such changes
contemplated by Section 5 that may have occurred between the date of this
Agreement and the Closing Date), except to the extent any representation or
warranty fails to be true and complete as the result of an Event of Loss with
respect to which Buyer made an election pursuant to Section 6.4(b)(1), and (2)
that each Seller 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) Licenses, Contracts, Business Records, Etc. Copies of
all Licenses, Assumed Contracts, blueprints, schematics, working drawings,
plans, projections, engineering records, and all files and records included in
the Assets.
(e) Opinions of Counsel. An opinion of Sellers' counsel
dated as of the Closing Date, substantially in the form of Schedule 8.2(e)
hereto.
(f) Guaranty. A guaranty by Xxxxxx Communications
Corporation, 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 PCC.
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer
shall deliver to Sellers the following, in form and substance reasonably
satisfactory to Sellers and their counsel:
(a) Purchase Price. The Estimated Purchase Price as provided
in Section 2.4(a).
(b) Assumption Agreements. Appropriate assumption agreements
pursuant to which Buyer shall assume and undertake to perform each Seller's
obligations under the Licenses and Assumed Contracts to the extent provided in
Section 2.5.
(c) Certificate. A certificate, dated as of the Closing
Date, executed on behalf of Buyer by an officer of Buyer, certifying (1) that
the representations and warranties of Buyer contained in this Agreement are
true and complete in all material respects as of the Closing Date
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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.
SECTION 9 TERMINATION.
9.1 Termination by Sellers. This Agreement may be terminated by
Sellers prior to the Closing and the purchase and sale of the Assets abandoned,
if neither Seller is then in material default, upon written notice to Buyer,
upon the occurrence of any of the following:
(a) Conditions. If on the date on which the Closing is
required to take place pursuant to Section 8.1(a) any of the conditions
precedent to the obligations of Sellers set forth in this Agreement has not
been satisfied or waived in writing by Sellers.
(b) Judgments. If there shall be in effect on the date on
which the Closing is required to take place pursuant to Section 8.1(a) any
judgment, decree, or order that would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred on or
before December 31, 1997.
(d) Absence of Board Approval. At any time after March 24,
1997, if Buyer has not notified Sellers in writing prior to the time that
Sellers elect to terminate this Agreement pursuant to this Section 9.1(d) that
the board of directors of Buyer has approved the execution, delivery, and
performance by Buyer of this Agreement.
9.2 Termination by Buyer. This Agreement may be terminated by Buyer
and the purchase and sale of the Assets abandoned, if Buyer is not then in
material default, upon written notice to Sellers, upon the occurrence of any of
the following:
(a) Conditions. If on the date on which the Closing is
required to take place pursuant to Section 8.1(a) any of the conditions
precedent to the obligations of Buyer set forth in this Agreement has not been
satisfied or waived in writing by Buyer.
(b) Judgments. If there shall be in effect on the date on
which the Closing is required to take place pursuant to Section 8.1(a) any
judgment, decree, or order that would prevent or make unlawful the Closing.
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(c) Upset Date. If the Closing shall not have occurred on or
before December 31, 1997.
(d) Event of Loss. If an Event of Loss occurs and Buyer
notifies Sellers of its election to terminate the Agreement within five
business days after the receipt of Sellers' notice of the occurrence of the
Event of Loss.
(e) Absence of Board Approval. If the board of directors of
Buyer fails to approve the execution, delivery, and performance by Buyer of
this Agreement on or before March 24, 1997 and Buyer notifies Sellers on March
24, 1997 of its election to terminate the Agreement pursuant to this Section
9.2(e).
9.3 Termination by Mutual Consent. This Agreement may be terminated
upon the mutual written consent of Sellers and Buyer.
9.4 Payment of Liquidated Damages. If this Agreement is terminated by
Sellers due to Buyer's breach of this Agreement, then Buyer shall immediately
pay to Sellers Two Million Five Hundred Thousand Dollars in immediately
available funds, and the payment to Sellers pursuant to this Section 9.4 shall
be liquidated damages and shall constitute full payment and the exclusive
remedy for any damages suffered by Sellers by reason of Buyer's breach of this
Agreement. Sellers and Buyer agree in advance that actual damages would be
difficult to ascertain and that the amount of the payment to be made to Sellers
pursuant to Section 9.4 is a fair and equitable amount to reimburse Sellers for
damages sustained due to Buyer's breach of this Agreement.
9.5 Buyer's Rights on Termination. If this Agreement is terminated
by Buyer due to either Seller's breach of any provision of this Agreement,
Buyer shall have all rights and remedies available at law or equity.
9.6 Specific Performance. The parties recognize that if Sellers
breach this Agreement and refuse to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled, in addition to any other
remedies that may be available, including money damages, to obtain specific
performance of the terms of this Agreement. If any action is brought by Buyer
to enforce this Agreement, Sellers shall waive the defense that there is an
adequate remedy at law.
SECTION 10 SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES.
10.1 Representations and Warranties. Without prejudice to
representations and warranties in other agreements delivered hereunder, all
representations and warranties contained in this Agreement shall be deemed
continuing representations and warranties and shall survive the Closing Date
for a period of twelve months following the Closing; provided, however, that
any
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representation or warranty that would otherwise terminate in accordance with
this Section 10.1 shall continue to survive, if a claim for indemnification
shall have been made under Section 10 on or prior to such termination date,
until the related claim for indemnification has been satisfied or otherwise
resolved as provided in Section 10. Any investigations by or on behalf of
any party hereto shall not constitute a waiver as to enforcement of any
representation, warranty, or covenant contained in this Agreement. No notice
or information delivered by either party shall affect the other party's right
to rely on any representation, warranty, or covenant made by such party or
relieve such party of any obligations under this Agreement as the result of a
breach of any of its representations and warranties.
10.2 Indemnification by Sellers. After the Closing, and regardless of
any investigation made at any time by or on behalf of Buyer or any information
Buyer may have, Sellers jointly and severally hereby agree to indemnify and
hold harmless Buyer from and against, and shall reimburse Buyer for, any and
all losses, liabilities, and damages (including punitive and exemplary damages
and fines or penalties and any interest thereon), costs and expenses (including
reasonable fees and disbursements of counsel and expenses of investigation and
defense), claims, or other obligations of any nature (collectively, "Losses")
which result from:
(a) Any inaccuracy in or breach of any representation and
warranty, or any breach or nonfulfillment of any covenant or agreement of
either Seller contained in this Agreement or in any certificate, document or
instrument delivered to Buyer under this Agreement;
(b) All liabilities not required to be assumed by Buyer
pursuant to Section 2.6 including all obligations of either Seller not required
to be assumed by Buyer pursuant to this Agreement, including any liabilities
arising at any time under any Contract not included in the Assumed Contracts or
with respect to any Excluded Assets; and
(c) The operation or ownership of WPBF and the Assets prior
to the Closing, including any liabilities arising under the Licenses or the
Assumed Contracts that relate to events occurring prior to the Closing Date
except insofar as the Purchase Price was reduced pursuant to Section 2.3(a) as
a result of the proration of such liabilities.
10.3 Indemnification by Buyer. After the Closing, and regardless of
any investigation made at any time by or on behalf of either Seller or any
information that either Seller may have, Buyer hereby agrees to indemnify and
hold harmless each Seller from and against, and shall reimburse each Seller
for, any and all Losses which result from:
(a) Any inaccuracy in or breach of any representation and
warranty, or any breach or nonfulfillment of any covenant or agreement of Buyer
contained in this Agreement or in any certificate, document or instrument
delivered to Buyer under this Agreement, or
(b) Any and all obligations required to be assumed by Buyer
pursuant to Section 2.5 of this Agreement; and
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(c) The operation or ownership of WPBF and the Assets after
the Closing.
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 five business
days 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 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, through counsel
reasonably acceptable to the Claimant, to participate in or assume control of
the defense of such claim, and the Claimant shall cooperate fully with the
Indemnifying Party, subject to reimbursement for actual out-of-pocket expenses
incurred by the Claimant as the result of a request by the Indemnifying Party.
A claim may not be settled by the Indemnifying Party without the prior written
consent of the Claimant (which consent will not unreasonably be withheld)
unless, as part of such settlement, the Claimant shall receive a full and
unconditional release reasonably satisfactory to the Claimant. If the
Indemnifying Party elects to assume control of the defense of any third-party
claim, the Claimant shall have the right to participate in the defense of such
claim at its own expense. If the Indemnifying Party does not elect to assume
control or otherwise participate in the defense of any third-party claim, it
shall be bound by the results obtained in good faith 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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10.5 Certain Limitations. Notwithstanding anything in this Agreement
to the contrary,
(a) neither Seller shall be required to indemnify or
otherwise be liable to Buyer with respect to any claim arising from the failure
of Sellers to obtain any Consent if the obtaining of such Consent was not a
condition precedent to the obligations of Buyer set forth in this Agreement or
the condition that such Consent be obtained was waived by Buyer;
(b) neither Seller shall be required to indemnify or
otherwise be liable to Buyer for any breach of a representation or warranty, or
for the breach of any covenant contained in Section 5 of this Agreement, except
to the extent the losses, obligations, liabilities, costs, and expenses of
Buyer arising from all such breaches by both Sellers exceed in the aggregate
One Hundred Thousand Dollars; it being understood that this limitation applies
only to indemnification for breaches of representations and warranties and
breaches of covenants contained in Section 5 and does not apply to other
indemnification rights, including the right to indemnification for Excluded
Liabilities, or to claims relating to the adjustments and prorations pursuant
to Section 2.3(a);
(c) Buyer shall not be required to indemnify or otherwise be
liable to any Seller for any breach of a representation or warranty, except to
the extent the losses, obligations, liabilities, costs, and expenses of both
Sellers arising from all such breaches by Buyer exceed in the aggregate One
Hundred Thousand Dollars; it being understood that this limitation applies only
to indemnification for breaches of representations and warranties and does not
apply to other indemnification rights or to claims relating to the adjustments
and prorations pursuant to Section 2.3(a);
(d) no party shall indemnify or otherwise be liable to any
other party with respect to any claim for any breach of a representation or
warranty, or for the breach of any covenant contained in Section 5 of this
Agreement, unless notice of the claim is given within twelve months after the
Closing Date; it being understood that this limitation applies only to
indemnification for breaches of representations and warranties and breaches of
covenants contained in Section 5 and does not apply to other indemnification
rights, including the right to indemnification for Excluded Liabilities, or to
claims relating to the adjustments and prorations pursuant to Section 2.3(a);
(e) neither Seller shall be required to indemnify or
otherwise be liable to Buyer for any breach of a representation or warranty, or
for the breach of any covenant contained in Section 5 of this Agreement, to the
extent the losses, obligations, liabilities, costs, and expenses of Buyer
arising from all such breaches by all Sellers exceed in the aggregate Ten
Million Dollars; it being understood that this limitation applies only to
indemnification for breaches of representations and warranties and breaches of
covenants contained in Section 5 and does not apply to other indemnification
rights, including the right to indemnification for Excluded Liabilities, or to
claims relating to the adjustments and prorations pursuant to Section 2.3(a);
and
(f) Buyer shall not be required to indemnify or otherwise be
liable to any Seller for any breach of a representation or warranty to the
extent the losses, obligations, liabilities, costs,
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and expenses of all Sellers arising from all such breaches by Buyer exceed in
the aggregate Ten Million Dollars; it being understood that this limitation
applies only to indemnification for breaches of representations and warranties
and does not apply to other indemnification rights or to claims relating to the
adjustments and prorations pursuant to Section 2.3(a).
SECTION 11 MISCELLANEOUS.
11.1 Fees and Expenses. 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 (including, in the case of Sellers, all fees or
commissions payable to Alex. Xxxxx & Sons Incorporated and, in the case of
Buyer, Chase Securities Inc.), except that all filing fees (including all FCC
filing fees and all fees required in connection with filings under the HSR
Act), transfer taxes, recordation taxes, sales taxes, document stamps, or other
charges levied by any governmental entity in connection with the transactions
contemplated by this Agreement shall be paid by Buyer.
11.2 Notices. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall be (a) in
writing, (b) delivered by personal delivery, or sent by commercial delivery
service or registered or certified mail, return receipt requested, or sent by
facsimile transmission, (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 or by facsimile confirmation, and (d) addressed as follows:
If to either Seller: c/o Paxson
Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx,
President Telecopier:
000-000-0000
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With copies to: Dow, Xxxxxx &
Xxxxxxxxx, PLLC 0000 Xxx
Xxxxxxxxx Xxxxxx, X.X. Xxxxx
000 Xxxxxxxxxx, X.X.
00000-0000 Attention: Xxxx
X. Xxxxx, Xx. Telecopier:
202-776-2222
Xxxxxx Communications Corporation 000
Xxxxxxxxxx Xxxx Xxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X.
Xxxxxxxx, Vice President and
General Counsel Telecopier:
000-000-0000
If to Buyer: The Hearst Corporation
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 000000 Attention:
Xxxxx X. Xxxxxxx, Xx.,
President and Chief Executive
Officer; Xxxxxxxx X.
Xxxxxxxxx, Vice President and
General Counsel; and Xxxx X.
Xxxxxxxxx, Vice President and
General Manager, Hearst
Broadcasting Telecopier:
000-000-0000
With a copy to: Brooks, Pierce,
XxXxxxxx, Xxxxxxxx & Xxxxxxx
First Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000 Xxxxxxx, Xxxxx
Xxxxxxxx 00000 Attention:
Xxxx X. Xxxxxxxx Telecopier:
919-839-0304
or to any other or additional Persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
11.2.
11.3 Arbitration. Except as otherwise provided to the contrary below
or in Section 2.3(b), any dispute arising out of or related to this Agreement
that Sellers and Buyer are unable to resolve by themselves shall be settled by
arbitration in West Palm Beach, Florida by a panel of three arbitrators.
Sellers, collectively, and Buyer shall each designate one disinterested
arbitrator, and the two arbitrators so designated shall select the third
arbitrator. The persons selected as arbitrators need not be professional
arbitrators, and persons such as lawyers, accountants, brokers, and bankers
shall be acceptable. Before undertaking to resolve the dispute, each
arbitrator shall be duly sworn faithfully and fairly to hear and examine the
matters in controversy and to make a just award according to the best of his or
her understanding. The arbitration hearing shall be conducted in accordance
with the commercial arbitration rules for large cases of the American
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Arbitration Association. The written decision of a majority of the arbitrators
shall be final and binding on Sellers and Buyer. The costs and expenses of the
arbitration proceeding shall be assessed between Sellers and Buyer in a manner
to be decided by a majority of the arbitrators, and the assessment shall be set
forth in the decision and award of the arbitrators. Judgment on the award, if
it is not paid within thirty days, may be entered in any court having
jurisdiction over the matter. No action at law or suit in equity based upon
any claim arising out of or related to this Agreement shall be instituted in
any court by either Seller or Buyer against any other party except (a) an
action to compel arbitration pursuant to this Section or (b) an action to
enforce the award of the arbitration panel rendered in accordance with this
Section.
11.4 Benefit and Binding Effect. No party may assign this Agreement
without the prior written consent of each other party hereto, except that
Buyer, prior to the receipt of the FCC Consent, may (a) assign its right to
acquire the Assets to a "qualified intermediary" (within the meaning of Section
1.1031(k)-1(g)(4)(iii) of the Department of the Treasury's regulations
promulgated pursuant to the Internal Revenue Code, so long as (i) the
"qualified intermediary" causes the Assets to be assigned to Buyer immediately
thereafter, and (ii) the assignment to the "qualified intermediary" would not
delay the Closing, and (b) assign this Agreement to an Affiliate of Buyer.
Sellers agree that they will not unreasonably withhold their consent to a
proposed assignment by Buyer following the receipt of the FCC Consent to a
"qualified intermediary" or to an Affiliate of Buyer, each as contemplated by
the preceding sentence; Buyer agrees that it would not be unreasonable for
Sellers to withhold their consent to such an assignment if it would, in any
respect, delay the Closing or delay the date on which the FCC Consent would
become a Final Order. Any assignment by Buyer of all or part of its rights
under this Agreement shall not affect Buyer's obligations hereunder, and Buyer
shall, as a condition to any such assignment, deliver to Sellers its guaranty
(substantially similar in form to Schedule 8.2(f)) of the performance by its
assignee of all obligations of Buyer and its assignee hereunder. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. This Agreement is not
intended to, and shall not, confer upon any other person except the parties
hereto (and their permitted assigns) any rights or remedies hereunder.
11.5 Further Assurances; Reasonable Consent. The parties shall take
any actions and execute any other documents that may be necessary or desirable
to the implementation and consummation of this Agreement, including, in the
case of Sellers, any additional deeds, bills of sale, 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. When its consent under this Agreement is
requested, each party agrees to respond promptly and reasonably to the request.
11.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED, AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT REGARD TO
THE CHOICE OF LAW PROVISIONS THEREOF).
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11.7 Headings. The headings in this Agreement are included for ease
of reference only and shall not control or affect the meaning or construction
of the provisions of this Agreement.
11.8 Gender and Number. Words used in this Agreement, regardless of
the gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine, or neuter, and any other number,
singular or plural, as the context requires.
11.9 Entire Agreement. This Agreement, the schedules, hereto, and all
documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between Buyer and Sellers with respect to the subject matter of this Agreement.
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 that 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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IN WITNESS WHEREOF, this Agreement has been executed by the parties as
of the date first written above.
XXXXXX COMMUNICATIONS OF
WEST PALM BEACH-25, INC.
[Corporate Seal] By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------
Title: Chairman & CEO
-----------------------------
XXXXXX WEST PALM BEACH LICENSE, INC.
[Corporate Seal] By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------
Title: Chairman & CEO
-----------------------------
THE HEARST CORPORATION
[Corporate Seal] By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------
Title: Vice-President
-----------------------------
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