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STOCK PURCHASE AGREEMENT
BY AND BETWEEN
HOUSING DEVELOPMENT ASSOCIATES S.E.
AND
XXXXXX COMMUNICATIONS OF SAN XXXX, INC.
NOVEMBER 12, 1996
(PAGE)2 TABLE OF CONTENTS
Page
SECTION 1. CERTAIN DEFINITIONS. . . . . . . . . . . . . . . . . . . . 1
1.1 Terms Defined in this Section . . . . . . . . . . . . . . . . . 1
1.2 Terms Defined Elsewhere in this Agreement . . . . . . . . . . . 3
1.3 Clarifications. . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2. AT CLOSING; PURCHASE PRICE . . . . . . . . . . . . . . . . 4
2.1 Agreement to Sell and Buy . . . . . . . . . . . . . . . . . . . 4
2.2 Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Preclosing Distribution . . . . . . . . . . . . . . . . . . . . 4
SECTION 3. REPRESENTATIONS AND WARRANTIES OF HDA. . . . . . . . . . . 4
3.1 Organization of HDA . . . . . . . . . . . . . . . . . . . . . . 4
3.2 Authorization and Binding Obligation. . . . . . . . . . . . . . 4
3.3 Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.4 Absence of Conflicting Agreements; Consents . . . . . . . . . . 5
3.5 Claims and Legal Actions. . . . . . . . . . . . . . . . . . . . 5
3.6 Broker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.7 Real Property.. . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER. . . . . . . . . . 6
4.1 Organization, Standing, Authority, Ownership. . . . . . . . . . 6
4.2 Authorization and Binding Obligation. . . . . . . . . . . . . . 6
4.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . 6
4.4 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.5 Investment Purpose. . . . . . . . . . . . . . . . . . . . . . . 7
4.6 Qualifications. . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5. CERTAIN PRECLOSING COVENANTS . . . . . . . . . . . . . . . 7
5.1 Encumbrances. . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.2 Dispositions. . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.3 Access to Information . . . . . . . . . . . . . . . . . . . . . 7
5.4 Indebtedness and Obligations. . . . . . . . . . . . . . . . . . 7
5.5 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . 7
5.6 Licenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.7 No Inconsistent Action. . . . . . . . . . . . . . . . . . . . . 8
5.8 HDA Consents. . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.9 Notification. . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.10 Capital Improvements . . . . . . . . . . . . . . . . . . . . . 8
5.11 Shareholder and Management Agreement.. . . . . . . . . . . . . 8
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS . . . . . . . . . . . . . 8
6.1 FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.2 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . 9
6.3 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.4 Control of the Stations . . . . . . . . . . . . . . . . . . . .10
6.5 No Inconsistent Action. . . . . . . . . . . . . . . . . . . . .10
6.6 Buyer Consents. . . . . . . . . . . . . . . . . . . . . . . . .10
6.7 Exclusivity . . . . . . . . . . . . . . . . . . . . . . . . . .10
6.8 Agreement with ECOC . . . . . . . . . . . . . . . . . . . . . .12
6.9 Studio Lease Agreement. . . . . . . . . . . . . . . . . . . . .12
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6.10 Cancellation of Note. . . . . . . . . . . . . . . . . . . . . .12
6.11 Shareholder and Management Agreements . . . . . . . . . . . . .12
6.12 Xxxxx Transmitter Site. . . . . . . . . . . . . . . . . . . . .12
6.13 Mortgage. . . . . . . . . . . . . . . . . . . . . . . . . . . .13
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND HDA . . . . . . . .13
7.1 Conditions to Obligations of Buyer. . . . . . . . . . . . . . .13
7.2 Conditions to Obligations of HDA. . . . . . . . . . . . . . . .15
SECTION 8. CLOSING AND CLOSING DELIVERIES . . . . . . . . . . . . . .16
8.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
8.2 Deliveries by HDA . . . . . . . . . . . . . . . . . . . . . . .16
8.3 Deliveries by Buyer . . . . . . . . . . . . . . . . . . . . . .17
SECTION 9. TERMINATION. . . . . . . . . . . . . . . . . . . . . . . .18
9.1 Termination by HDA . . . . . . . . . . . . . . . . . . . . . .18
9.2 Termination by Buyer. . . . . . . . . . . . . . . . . . . . . .18
9.3 Rights on Termination . . . . . . . . . . . . . . . . . . . . .19
9.4 Specific Performance. . . . . . . . . . . . . . . . . . . . . .19
9.5 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . .19
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION;
CERTAIN REMEDIES . . . . . . . . . . . . . . . . . . . . .19
10.1 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . .19
10.2 Indemnification by HDA . . . . . . . . . . . . . . . . . . . .19
10.3 Indemnification by Buyer . . . . . . . . . . . . . . . . . . .20
10.4 Procedure for Indemnification. . . . . . . . . . . . . . . . .21
10.5 Certain Limitations. . . . . . . . . . . . . . . . . . . . . .22
10.6 Exclusivity of Remedy. . . . . . . . . . . . . . . . . . . . .22
SECTION 11. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . .22
11.1 Fees and Expenses. . . . . . . . . . . . . . . . . . . . . . .22
11.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . .23
11.3 Benefit and Binding Effect . . . . . . . . . . . . . . . . . .23
11.4 Further Assurances . . . . . . . . . . . . . . . . . . . . . .24
11.5 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . .24
11.6 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . .24
11.7 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . .24
11.8 Waiver of Compliance; Consents . . . . . . . . . . . . . . . .24
11.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . .24
11.10 Guaranty of PCC. . . . . . . . . . . . . . . . . . . . . . . .24
(PAGE)4
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is made as of November 12, 1996, by and
between XXXXXX COMMUNICATIONS OF SAN XXXX, INC., a Florida corporation
("Buyer"), and HOUSING DEVELOPMENT ASSOCIATES S.E., a Puerto Rico special
partnership ("HDA").
R E C I T A L S:
A. S & E Network Inc., a Puerto Rico corporation (the "Company"),
owns television stations WSJN-TV, San Xxxx, Puerto Rico, WKPV(TV), Xxxxx,
Puerto Rico and WJWN-TV, San Sebastian, Puerto Rico (the "Stations")
pursuant to licenses issued by the Federal Communications Commission (the
"FCC").
B. HDA owns fifty percent (50%) of the issued and outstanding shares
of the common stock of the Company and Buyer owns the remaining fifty
percent (50%) of the issued and outstanding shares of the common stock of
the Company.
C. Buyer desires to buy from HDA and HDA desires to sell to Buyer
all of HDA's shares of the common stock of the Company on the terms and
conditions hereinafter set forth.
A G R E E M E N T S:
In consideration of the above recitals and of the mutual agreements
and covenants contained in this Agreement, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement, 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:
"Affiliate" means (a) any Person that directly or indirectly, through
one or more intermediaries, controls, is controlled by or is under common
control with another Person, or (b) an officer or director of an affiliate
within the meaning of (a) above.
"Buyer Consents" means the Consents required to be obtained by Buyer
to permit Buyer to buy the Stock pursuant to this Agreement.
"Closing" means the consummation of the purchase and sale of the Stock
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.
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"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Stock to
Buyer or otherwise to consummate the transactions contemplated by this
Agreement.
"Effective Time" means 12:01 a.m., local San Xxxx time, on the Closing
Date.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the
transfer of the Stock to Buyer as contemplated by this Agreement.
"FCC Licenses" means those licenses, permits, and authorizations
issued by the FCC to the Company in connection with the business and
operations of the Stations.
"First Purchase Agreement" means the Stock Purchase Agreement, dated
as of January 31, 1996, by and among the Company, Buyer and HDA.
"HDA Consents" means the Consents required to be obtained by HDA to
permit HDA to sell the Stock pursuant to this Agreement as listed in
Schedule 3.4.
"Licenses" means all licenses, permits, construction permits, and
other authorizations issued by the FCC, the Federal Aviation
Administration, or any other federal, state, or local governmental
authorities to the Company, currently in effect and used or useful in the
business or operations of the Stations, together with any additions thereto
between the date of this Agreement and the Closing Date.
"Management Agreement" means the Management Agreement, dated as of
August 30, 1996, by and among Buyer, the Company and HDA.
"Material Contract" means any contract, lease, non-governmental
license, agreement, or commitment to which HDA is a party, except for any
contract, lease, non-governmental license, agreement, or commitment, (i)
the obligations under which will be fully performed prior to Closing; or
(ii) except for film or programming, entered into in the ordinary course of
business and not involving a commitment in excess of $5,000.
"Person" means an individual, corporation, association, partnership,
joint venture, trust, estate, limited liability company, limited liability
partnership, or other entity or organization.
"Shareholder Agreement" means the Shareholder Agreement dated as of
August 30, 1996, by and among Buyer, the Company and HDA.
"Stations" means television stations WSJN-TV, San Xxxx, Puerto Rico,
WKPV(TV), Xxxxx, Puerto Rico and WJWN-TV, San Sebastian, Puerto Rico.
"Stock" means 500 shares of voting common stock, par value $.01 per
share which, as of the Effective Time, shall represent fifty percent (50%)
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of the issued and outstanding shares of capital stock of the Company.
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
Buyer Preamble
Claimant Section 10.4 (a)
Company Recitals
ECOC Section 6.8
ECOC Agreement Section 6.8
ECOC Amendment Section 6.8
GE Loan Section 5.4
HDA Preamble
Indemnifying Party Section 10.4 (a)
IRS Debt Section 5.4
Purchase Price Section 2.2
Studio Lease Agreement Section 6.9
1.3 Clarifications. Words used herein, regardless of the gender and
number specifically used, shall be deemed and construed to include any
other gender and any other number as the context requires. Use of the word
"including" herein shall be deemed and construed to mean "including but not
limited to." Except as specifically otherwise provided in this Agreement
in a particular instance, a reference to a Section, Exhibit or Schedule is
a reference to a Section of this Agreement or an Exhibit or Schedule
hereto, and the terms "hereof," "herein" and other like terms refer to this
Agreement as a whole, including the Schedules hereto, and not solely to any
particular part hereof.
SECTION 2. AT CLOSING; PURCHASE PRICE
2.1 Agreement to Sell and Buy. Subject to the terms and conditions
set forth in this Agreement, HDA hereby agrees to sell, transfer and
deliver to Buyer on the Closing Date, and Buyer agrees to purchase, the
Stock, free and clear of any claims, liabilities, security interests,
mortgages, liens, pledges, conditions, charges, or encumbrances of any
nature whatsoever.
2.2 Purchase Price. The purchase price for the Stock (the "Purchase
Price") shall be Seven Million Dollars ($7,000,000), adjusted as provided
in Section 6.12 and payable by federal wire transfer of same-day funds
pursuant to wire instructions which shall be delivered by HDA to Buyer at
least two business days prior to the Closing Date.
2.3 Preclosing Distribution. At least ten days prior to the Closing,
HDA and Buyer shall use good faith efforts to agree on the amount of a
dividend (the "Dividend") to be declared by the Company in the aggregate
amount of the excess of the Stations' cash receipts for the period January
31, 1996 through the Closing Date over the Stations' operating expenses
(excluding noncash charges) for the same period. Immediately preceding the
(PAGE)7
Closing, HDA and Buyer shall cause the Company to declare the Dividend
which shall be payable within 30 days after the Closing Date, one-half to
HDA and one-half to Buyer, as shareholders of record immediately preceding
the Closing.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF HDA
HDA represents and warrants to Buyer as follows:
3.1 Organization of HDA. HDA is a partnership duly organized and
validly existing under the laws of the Commonwealth of Puerto Rico. HDA has
the requisite partnership power and authority to execute, deliver and
perform this Agreement and the documents contemplated hereby according to
their respective terms.
3.2 Authorization and Binding Obligation. The execution, delivery
and performance of this Agreement by HDA have been duly authorized by all
necessary partnership action on the part of HDA. This Agreement has been
duly executed and delivered by HDA and constitutes the legal, valid, and
binding obligation of HDA, enforceable 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 Stock. HDA owns beneficially and of record the Stock free and
clear of any mortgages, liens, claims, charges, encumbrances, assessments
or other adverse interests of any kind or nature whatsoever except for
encumbrances created by the Shareholder Agreement. The Stock constitutes
fifty percent (50%) of the issued and outstanding shares of the capital
stock of the Company. The Stock and the five hundred (500) shares of
common stock of the Company owned by Buyer constitute the only issued and
outstanding equity interest in the Company. The Stock has been duly and
validly issued, is fully paid and nonassessable and was issued in
accordance with all applicable laws. There are no outstanding options or
other rights to acquire the Stock. Except for the Shareholder Agreement,
there are no voting trust agreements or other contracts, agreements or
arrangements restricting voting or dividend rights or the issuance or
transferability of the Stock.
3.4 Absence of Conflicting Agreements; Consents. Subject to obtaining
the FCC Consent provided for in Section 6.1, the Buyer Consents and the HDA
Consents described on Schedule 3.4, the execution, delivery and
performance by HDA 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; (b) will not conflict with any
provision of the Certificate of Incorporation or Bylaws of the Company or
the Partnership Agreement of HDA; (c) will not conflict with, result in a
breach of, or constitute a default under any applicable law, judgment,
order, ordinance, injunction, decree, rule, regulation, or ruling of any
court or governmental instrumentality; and (d) will not conflict with,
constitute grounds for termination of, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of any performance
required by the terms of any Material Contract. Except for the FCC Consent
(PAGE)8
provided for in Section 6.1, the Buyer Consents and the HDA Consents
described in Schedule 3.4, 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 permit HDA to consummate
this Agreement and the transactions contemplated hereby.
3.5 Claims and Legal Actions. 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 HDA threatened, against HDA or relating to alleged
actions or omissions of HDA which could impair HDA's ability to consummate
the transactions contemplated hereby or affect the business or operations
of any Station, nor does HDA know of any basis for the same.
3.6 Broker. Neither HDA nor any Person acting on its behalf has
incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement.
3.7 Real Property. All indebtedness and other payments secured by the
mortgage described in Schedule 3.7 hereto (the "Mortgage") have been paid
in full by the Company.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to HDA as follows:
4.1 Organization, Standing, Authority, Ownership. Buyer is a
corporation duly organized, validly existing, and in good standing under
the laws of the State of Florida and has the requisite corporate power and
authority to execute, deliver, and perform this Agreement and the documents
contemplated hereby according to their respective terms and to own the
Stock.
4.2 Authorization and Binding Obligation. The execution, delivery
and performance of this Agreement by Buyer have been duly authorized by all
necessary corporate action on the part of Buyer. This Agreement has been
duly executed and delivered by Buyer and constitutes a 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 the receipt of the
Consents, the execution, delivery and performance by Buyer of this
Agreement and the documents contemplated hereby (with or without the giving
of notice, the lapse of time, or both): (a) do not require the consent of
any third party; (b) will not conflict with the Articles of Incorporation
or By-laws of Buyer; (c) will not conflict with, result in a breach of, or
constitute a default under, any applicable law, judgment, order, ordinance,
injunction, decree, rule, regulation, or ruling of any court or
governmental instrumentality; and (d) will not conflict with, constitute
grounds for termination of, result in a breach of, constitute a default
(PAGE)9
under, or accelerate or permit the acceleration of any performance required
by the terms of, any agreement, instrument, license or permit to which
Buyer is a party or by which Buyer may be bound. Except for the FCC
Consent, the HDA Consents and the Buyer Consents, 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 permit Buyer to consummate this Agreement and the transactions
contemplated hereby.
4.4 Brokers. Neither Buyer nor any Person acting on its behalf has
incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement.
4.5 Investment Purpose. Buyer is acquiring the Stock for investment
for its own account and not with a view to the sale or distribution of any
part thereof, and not including collateral assignments or pledges of the
Stock for financing purposes, Buyer has no present intention of selling,
granting participations in, or otherwise distributing the Stock.
4.6 Qualifications. Assuming the Company's existing FCC
authorization to operate WKPV(TV) and WJWN-TV as satellites of WSJN-TV
pursuant to Section 73.3555, Note 5, of the FCC's rules and regulations is
not terminated, Buyer is legally qualified under the Communications Act and
FCC rules, regulations and policies to acquire the Stock and to operate the
Stations.
SECTION 5. CERTAIN PRECLOSING COVENANTS
HDA covenants and agrees that between the date hereof and the Closing
Date, HDA shall comply with the following covenants:
5.1 Encumbrances. HDA will not create, assume, or permit to exist
any mortgage, pledge, lien, or other charge or encumbrance affecting the
Stock.
5.2 Dispositions. HDA will not sell, assign, lease, or otherwise
transfer or dispose of the Stock.
5.3 Access to Information. HDA will give to Buyer and its counsel,
accountants, engineers, and other authorized representatives reasonable
access to all information that they reasonably request relating to the
Stock.
5.4 Indebtedness and Obligations. HDA shall either prepay, or pay
promptly when due, all payment obligations (including principal, interest,
penalties and other amounts) payable under the Promissory Notes of the
Company to General Electric Capital Corporation of Puerto Rico
(collectively, the "GE Loan") and all indebtedness of the Company to the
Internal Revenue Service (the "IRS Debt"), which payment obligations have
been assumed by HDA pursuant to an Assumption Agreement, dated August 30,
1996, by and among HDA, Buyer and the Company.
5.5 Compliance with Laws. HDA shall comply in all material respects
(PAGE)10
with all laws, rules, and regulations except to the extent that
noncompliance would not have a material adverse effect on the Company or
the Stock or that noncompliance is caused by an agent of Buyer.
5.6 Licenses. HDA shall not cause any of the Licenses issued by the
FCC with respect to the Stations to expire or to be revoked, suspended, or
modified, or take any action that could reasonably be expected to cause the
FCC or any other governmental authority to institute proceedings for the
suspension, revocation, or material adverse modification of any of such
Licenses.
5.7 No Inconsistent Action. HDA shall not take any action that is
inconsistent in any material respect with its obligations under this
Agreement or that could reasonably be expected to hinder or delay the
consummation of the transactions contemplated by this Agreement. Neither
HDA nor any of its representatives or agents shall, directly or indirectly,
solicit, initiate, or participate in any way in discussions or negotiations
with, or provide any confidential information to, any Person (other than
Buyer or any Affiliate or associate of Buyer and their respective
representatives and agents) concerning any possible disposition of the
Stock or any similar transaction.
5.8 HDA Consents. HDA shall use its best efforts to obtain all HDA
Consents without any change in the terms or conditions of any contract or
license to which such Consent relates. HDA shall promptly advise Buyer of
any difficulties experienced in obtaining any of the HDA Consents and of
any conditions proposed, considered, or requested for any of the HDA
Consents.
5.9 Notification. HDA shall promptly notify Buyer in writing of any
material change in any of the information contained in the representations
and warranties contained in Section 3 of this Agreement.
5.10 Capital Improvements. Prior to the Closing Date, HDA shall have
paid to the Company $50,000 for the repair of the retaining wall at the
Cubuy tower site. HDA shall also have paid to the Company the necessary
funds in excess of insurance proceeds to repair the other damage from
Hurricane Xxxxxx at the Cubuy tower site.
5.11 Shareholder and Management Agreement. HDA shall comply with all
of the terms and conditions of the Shareholder Agreement and the Management
Agreement.
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC Consent.
(a) The sale of the Stock as contemplated by this Agreement is
subject to the prior consent and approval of the FCC.
(b) HDA and Buyer shall, and shall cause the Company to, prepare
and, within five (5) business days after the date hereof, file with the FCC
an appropriate application for the FCC Consent. HDA and Buyer shall, and
(PAGE)11
shall cause the Company to, thereafter prosecute the application for the
FCC Consent with all reasonable diligence and otherwise use their
respective best efforts to obtain a grant of the application for the FCC
Consent as expeditiously as practicable. Each party agrees to comply, and
cause the Company 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 (i) the condition was imposed on it as the result of a circumstance the
existence of which does not constitute a breach by that party of any of its
representations, warranties, or covenants hereunder, and (ii) compliance
with the condition would have a material adverse effect upon it. HDA and
Buyer shall, and shall cause the Company to, oppose any petitions to deny
or other objections filed with respect to the application for the FCC
Consent and any requests for reconsideration or judicial review of the FCC
Consent. The cost of such opposition shall be borne by the party whose
qualifications are being challenged in such petition to deny, objection,
request for reconsideration or judicial review.
(c) 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 effective periods of the FCC Consent shall limit the
exercise by either party of its right to terminate the Agreement under
Section 9.
6.2 Confidentiality. Except as necessary for the consummation of the
transaction contemplated by this Agreement, including the requirements of
HDA's and Buyer's lenders, and the operation of the Stations pursuant to
the Management Agreement and 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.
If this Agreement is terminated, each party will return to the other party
all information obtained by such party from the other party in connection
with the transactions contemplated by this Agreement.
6.3 Cooperation. Buyer and HDA 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 HDA shall execute such other documents as may be
necessary and desirable to the implementation and consummation of this
Agreement, and otherwise use their best efforts to consummate the
transaction contemplated hereby and to fulfill their obligations under this
Agreement. Notwithstanding the foregoing, and except as otherwise
expressly provided in this Agreement, Buyer shall have no obligation to
agree to any adverse change in any License or contract in order to obtain a
Consent required with respect thereto.
6.4 Control of the Stations. Prior to Closing, the operations of the
Stations, including complete control and supervision of all of the
Stations' programs, employees, and policies, shall be the sole
responsibility of the Company as managed by Buyer pursuant to the
Management Agreement.
(PAGE)12
6.5 No Inconsistent Action. Buyer shall not take any action that is
inconsistent in any material respect with its obligations under this
Agreement or that could reasonably be expected to hinder or delay the
consummation of the transactions contemplated hereby. Without limiting the
generality of the foregoing, Buyer shall not take any action that could
result in its disqualification under the Communications Act or FCC rules
and regulations to purchase the Stock or operate the Stations. If Buyer
becomes aware of any fact that could result in such disqualification, it
will so inform HDA and use its best efforts to eliminate any such
disqualifying fact.
6.6 Buyer Consents. Buyer shall use its best efforts to obtain all
of the Buyer Consents. Buyer shall promptly advise HDA of any difficulties
experienced in obtaining any of the Buyer Consents and of any conditions
proposed, considered or requested for any of the Buyer Consents.
6.7 Exclusivity.
(a) During the Exclusivity Period (defined below) Buyer shall
cause the Stations not to broadcast any Interactive Gaming Programming
(defined below) except for (i) Interactive Gaming Programming provided
under the ECOC Agreement as amended pursuant to Section 6.8, (ii)
Interactive Gaming Programming produced by or broadcast during time
purchased by HDA or an Affiliate of HDA or (iii) RFR Waiver Programming
(defined below).
(b) The "Exclusivity Period" shall mean the period commencing on
the date hereof and ending on the second anniversary of the Closing Date;
provided, however, that the Exclusivity Period shall be extended following
the second anniversary of the Closing Date for so long as HDA or an HDA
Affiliate shall offer to purchase at least 2 hours per week of broadcast
time on the Stations for broadcast of Interactive Gaming Programming which
2 hours requirement shall not be satisfied by the broadcast of Interactive
Gaming Programming under the ECOC Agreement.
(c) During the Exclusivity Period, Buyer shall cause the Company
to sell to HDA or an HDA Affiliate, upon request, broadcast time on the
Stations for Interactive Gaming Programming in a minimum and maximum amount
of 2 hours per week and 10 hours per week, respectively. Buyer shall cause
the Stations to make such broadcast time available at such times as shall
be requested by HDA at least 30 days prior to the broadcast, but shall not
be required to provide more than 2 hours per day. The hourly rate charged
for such broadcast time shall equal the average of the rate charged for
each hour immediately preceding and immediately following such broadcast
time (not including advertising revenues for individual spots of one minute
or less broadcast during such hour).
(d) During the Exclusivity Period Buyer shall cause the Company
to notify HDA of any bona fide offer from any person to purchase broadcast
time on the Stations for the broadcast of Interactive Gaming Programming
which the Company desires to accept ("Proposed Programming"). Such notice
shall be in writing and shall set forth all material terms of the Proposed
Programming including the schedule and number of hours per week of proposed
(PAGE)13
broadcast time, a detailed description of the content of the Proposed
Programming, the consideration to be received by the Company in respect of
the Proposed Programming and the duration of the commitment to purchase
broadcast time. Following receipt of such notice, HDA shall have 60 days
to notify the Company whether it wishes to purchase broadcast time for
Interactive Gaming Programming on the same terms as the Proposed
Programming. If HDA notifies the Company within such period of its desire
to purchase broadcast time on such terms, the Company shall sell to HDA or
an Affiliate of HDA such broadcast time on such terms provided that HDA or
an Affiliate of HDA makes available to the Stations such programming within
120 days of HDA's receipt of notice of the Proposed Programming from Buyer
pursuant to the first sentence of this paragraph (d). If HDA notifies the
Company that it declines to purchase such broadcast time or fails to notify
the Company within the 60-day period or fails to provide such programming
within the 120-day period, the Company may broadcast the Proposed
Programming in accordance with the terms thereof (hereafter "RFR Waiver
Programming").
(e) "Interactive Gaming Programming" shall mean programming
permitted under applicable law the content of which determines or announces
the outcome of a Sponsored Gaming Activity (defined below). "Sponsored
Gaming Activity" shall mean any parimutuel wagering, sports betting or
other game, lottery or contest where winners are determined predominantly
by chance with respect to which (i) participants in the Sponsored Gaming
Activity provide consideration for an opportunity to win a cash and/or non
cash prize, and (ii) the purchaser of broadcast time for determining or
announcing the outcome of such Sponsored Gaming Activity (or an Affiliate
thereof) receives directly or indirectly some portion of such consideration
or a fee paid by some other person who receives some portion of such
consideration.
Interactive Gaming Programming shall not include (i)
advertisements for casinos, government lotteries, sports books or other
gambling venues or gambling opportunities, or (ii) "no purchase necessary"
sweepstakes or other games of chance where participants have an opportunity
to win a prize but provide no consideration for such opportunity.
(f) Notwithstanding the foregoing, the Company shall retain the
right to interrupt or preempt the programming of HDA or an Affiliate
thereof to be broadcast hereunder in case of an emergency or for
noncommercial public service programming which, in the good faith judgment
of the Company, is of greater local or national public importance and the
Company shall not be required to broadcast any programming of HDA or an
Affiliate thereof that violates any applicable laws, rules, regulations or
policies of any governmental entity, including the FCC.
6.8 Agreement with ECOC. Simultaneously with the Closing, Buyer and
HDA shall cause the Company and HDA shall cause ECOC to amend the Agreement
(the "ECOC Agreement"), dated as of February 1, 1996, between the Company
and El Comandante Operating Co., Inc. ("ECOC"), pursuant to the Amendment
to the ECOC Agreement attached hereto as Exhibit A (the "ECOC Amendment").
6.9 Studio Lease Agreement. Simultaneously with the Closing, Buyer
(PAGE)14
and HDA shall cause the Company and HDA shall cause ECOC to enter into the
studio lease agreement attached hereto as Exhibit B (the "Studio Lease
Agreement").
6.10 Cancellation of Note. Simultaneously with the Closing, the
Company shall repay to HDA all capital funding notes issued by the Company
pursuant to the Shareholder Agreement.
6.11 Shareholder and Management Agreements. Simultaneously with the
Closing, Buyer and HDA shall, and shall cause the Company to, terminate the
Shareholder Agreement and the Management Agreement except that with respect
to HDA, Section 7.4 of the Shareholder Agreement shall survive such
termination for the term set forth in such Section.
6.12 Ponce Transmitter Site. The parties hereto acknowledge that they
have agreed to cause the Company to relocate the tower site for television
station WKPV(TV), Ponce, Puerto Rico. HDA shall pay and reimburse Buyer
and/or the Company, as applicable, for 25% of the costs and expenses
relating to such relocation regardless of whether such costs and expenses
are incurred prior to or after the Closing Date, provided that HDA's
reimbursement obligation hereunder shall not exceed $100,000. At Closing,
the Purchase Price shall be reduced by the amount of the relocation costs
and expenses incurred by Buyer and/or the Company as of such date for which
HDA is responsible hereunder and Buyer's reasonable estimate of the amount
of the relocation costs and expenses to be incurred by Buyer and/or the
Company following the Closing for which HDA is responsible hereunder
provided that such reduction in the Purchase Price shall not exceed
$100,000. Upon completion of the relocation, Buyer shall promptly pay to
HDA the amount, if any, by which such reduction in the Purchase Price
exceeded the aggregate amount of relocation costs and expenses actually
incurred by Buyer and/or the Company for which HDA is responsible hereunder
and HDA shall promptly pay to Buyer the amount, if any, by which such
reduction in the Purchase Price is less than the aggregate amount of
relocation costs and expenses actually incurred by Buyer and/or the Company
for which HDA is responsible hereunder. Relocation costs and expenses
payable hereunder by HDA shall include all out-of-pocket costs and expenses
incurred by Buyer and/or the Company relating to such relocation; provided
that relocation costs and expenses payable by HDA hereunder shall not
include any lease payments to be made by the Company if the Company elects
to lease the site to which it will relocate the WKPV(TV) transmitter site.
6.13 Mortgage. Prior to and after the Closing, HDA shall use
commercially reasonable efforts to assist the Company and Buyer in
obtaining the release of record of the Mortgage.
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND HDA
7.1 Conditions to Obligations of Buyer. All obligations of Buyer at
the Closing hereunder 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 HDA contained in this Agreement shall be true and complete in
(PAGE)15
all material respects at and as of the Closing Date as though made at and
as of that time.
(b) Covenants and Conditions. HDA shall have performed and
complied in all material respects with all covenants, agreements, and
conditions required by this Agreement to be performed or complied with by
it prior to or on the Closing Date.
(c) Consents. All Consents shall have been obtained without any
adverse change in the terms or conditions of any Material Contract or any
License.
(d) FCC Consent. The FCC Consent shall have been granted without
the imposition on Buyer or the Company of any conditions that need not be
complied with by Buyer or the Company under Section 6.1 hereof and HDA
shall have complied with any conditions imposed on it by the FCC Consent.
(e) Governmental Authorizations. The Company shall be the holder
of all FCC Licenses and there shall not have been any modification,
revocation, or non-renewal of any License that could have an adverse effect
on the Stations or the conduct of their business and operations. No
proceeding shall be pending the effect of which could be to revoke, cancel,
fail to renew, suspend, or modify adversely any FCC License.
(f) Deliveries. HDA shall have made or stand willing to make all
the deliveries to Buyer described in Section 8.2.
(g) Station Authorizations. The Company shall continue to have
all waivers and authorizations from the FCC to operate Station WKPV(TV) and
Station WJWN-TV as satellites of Station WSJN-TV pursuant to Section
73.3555, Note 5, of the FCC's rules and regulations, 47 C.F.R. Section
73.3555 and there shall be no proceedings pending or threatened to revoke or
suspend such waivers or authorizations.
(h) No Proceeding. No administrative or judicial proceeding by
any governmental authority or any other person shall have been instituted
or threatened that questions the validity or legality of the transactions
contemplated by this Agreement.
(i) Stations' Operation. Buyer shall have received evidence that
HDA shall have made the payments to the Company required by Section 5.10
hereof.
(j) Xxxxxx Xxxxx Programming Agreement. The termination
agreement relating to the Xxxxxx Xxxxx Programming Agreement shall be in
full force and effect and HDA shall have made all payments required by the
Company thereunder.
(k) ECOC Amendment. ECOC shall have executed and delivered to
Company the ECOC Amendment and the ECOC Agreement as amended by the ECOC
Amendment shall be in full force and effect and ECOC shall be in compliance
in all material respects therewith.
(PAGE)16
(l) Studio Lease Agreement. ECOC shall have executed and
delivered to Company the Studio Lease Agreement and such Studio Lease
Agreement shall be in full force and effect.
(m) GE Loan and IRS Debt. Buyer shall have received evidence
that the GE Loan and the IRS Debt shall have been repaid in full by HDA or
HDA shall have delivered to Buyer a release from General Electric Capital
Corporation of Puerto Rico and the Internal Revenue Service releasing the
Company from any and all liabilities or obligations thereunder. General
Electric Capital Corporation of Puerto Rico and the Internal Revenue
Service shall have released any and all liens that they may have in the
assets of the Company and shall have delivered termination statements and
releases reasonably satisfactory to Buyer with respect thereto.
(n) Equipment Lease. The lease of equipment between the Company
and ECOC shall be in full force and effect.
7.2 Conditions to Obligations of HDA. All obligations of HDA at the
Closing hereunder are subject at HDA'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 Buyer contained in this Agreement shall be true and complete
in all material respects at and as of the Closing Date as though made at
and as of that time.
(b) Covenants and Conditions. Buyer shall have performed and
complied in all material respects with all covenants, agreements, and
conditions required by this Agreement to be performed or complied with by
it prior to or on the Closing Date.
(c) Deliveries. Buyer shall have made or stand willing to make
all the deliveries described in Section 8.3.
(d) FCC Consent. The FCC Consent shall have been granted without
the imposition on HDA of any conditions that need not be complied with by
HDA under Section 6.1 hereof, and Buyer and the Company shall have complied
with any conditions imposed on them by the FCC Consent.
(e) No Proceeding. No administrative or judicial proceeding by
any governmental authority or any other person shall have been instituted
or threatened that questions the validity or legality of the transactions
contemplated by this Agreement.
(f) ECOC Amendment. The Company shall have executed and
delivered to ECOC the ECOC Amendment and the ECOC Agreement as amended by
the ECOC Amendment shall be in full force and effect and the Company shall
be in compliance in all material respects therewith.
(g) Studio Lease Agreement. The Company shall have executed and
delivered to ECOC the Studio Lease Agreement and such Studio Lease
Agreement shall be in full force and effect.
(PAGE)17
(h) Xxxxxx Xxxxx Programming Agreement. Buyer shall have paid
$64,486 to HDA, $30,000 of which represents one-half of the amount
previously paid by HDA to Xxxxxx Xxxxx and $34,486 of which represents the
estimated book value as of December 31, 1996 of production equipment for
the Xxxxxx Xxxxx show owned by HDA and to be conveyed "as is" to the
Company on or before the Closing pursuant to documentation reasonably
satisfactory to Buyer.
SECTION 8. CLOSING AND CLOSING DELIVERIES
8.1 Closing.
(a) Closing Date.
(1) Except as provided below in this Section 8.1 (a) or as
otherwise agreed to by Buyer and HDA, the Closing shall take place at 10:00
a.m. on a date, to be set by Buyer on at least five days' written notice to
HDA, which shall be not earlier than the first business day after the FCC
Consent is granted and not later than ten business days after the FCC
Consent is granted.
(2) Except as provided below in this Section 8.1 (a), if
Buyer fails to specify the date for Closing pursuant to the preceding
sentence prior to the fifth business day after the date upon which the FCC
Consent has been granted, the Closing shall take place on the tenth
business day after the date upon which the FCC Consent has been granted.
(3) If there is in effect on the date on which the Closing
would otherwise occur pursuant to this Section 8.1 (a) any judgment,
decree, or order that would prevent or make unlawful the Closing on that
date, the Closing shall be postponed until a date within the effective
period of the FCC Consent (as it may be extended pursuant to Section 6.1),
to be agreed upon by Buyer and HDA when such judgment, decree, or order no
longer prevents or makes unlawful the Closing. If the Closing is postponed
pursuant to this paragraph, the date of the Closing shall be mutually
agreed to by HDA and Buyer.
(b) Closing Place. The Closing shall be held at the offices of
Dow, Xxxxxx & Xxxxxxxxx, 0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000, or any other place that is agreed upon by Buyer
and HDA.
8.2 Deliveries by HDA. Prior to or on the Closing Date, HDA shall
deliver to Buyer the following, in form and substance reasonably
satisfactory to Buyer and its counsel:
(a) Stock. Certificates representing all of the Stock, which
shall be either duly endorsed or accompanied by stock powers duly executed
in favor of Buyer.
(b) Resolutions. Copies of resolutions adopted by the managing
(PAGE)18
general partner of the managing partner of HDA authorizing and approving
the execution of this Agreement and the consummation of the transactions
contemplated hereby, certified by the Secretary or Assistant Secretary of
such managing general partner as being true and complete on the Closing
Date.
(c) Officer's Certificate. A certificate, dated as of the
Closing Date, executed on behalf of HDA by the President of the managing
partner of HDA, certifying: (1) that the representations and warranties of
HDA contained in this Agreement are true and complete in all material
respects as of the Closing Date as though made on and as of that date; and
(2) that HDA has in all material respects performed and complied with all
of its obligations, covenants, and agreements in this Agreement to be
performed and complied with on or prior to the Closing Date.
(d) Opinions of Counsel. Opinions of HDA's counsel and
communications counsel dated as of the Closing Date, in form and substance
satisfactory to Buyer's counsel.
(e) Resignations. Written resignations effective as of the
Closing Date of the officers and directors of the Company set forth on
Schedule 8.2(e) hereto or any successor to any such officers or directors.
(f) GE and IRS Debt. Evidence reasonably satisfactory to Buyer
that the GE Debt and the IRS Loan shall have been paid in full or the
Company shall have been discharged from all liabilities and obligations
thereunder and that General Electric Capital Corporation of Puerto Rico and
the Internal Revenue Service shall have released all liens, security
interests, claims and other encumbrances that they may have in the
Company's assets.
(g) Other Agreements. The documents required by Sections 7.1(k),
(l) and (m).
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer
shall deliver to HDA the following, in form and substance reasonably
satisfactory to HDA and its counsel:
(a) Purchase Price. The payment described in Section 2.2.
(b) Resolutions. Copies of resolutions adopted by the Board of
Directors of Buyer, authorizing and approving the execution of this
Agreement and the consummation of the transactions contemplated hereby,
certified by its Secretary as being true and correct on the Closing Date.
(c) Officer's Certificate. A certificate, dated as of the
Closing Date, executed on behalf of Buyer by the Chairman or President of
Buyer, certifying (1) that the representations and warranties of Buyer
contained in this Agreement are true and complete in all material respects
as of the Closing Date as though made on and as of that date, and (2) that
Buyer has in all material respects performed and complied with all of its
obligations, covenants, and agreements in this Agreement to be performed
and complied with on or prior to the Closing Date.
(PAGE)19
(d) Opinion of Counsel. An opinion of Buyer's counsel dated as
of the Closing Date, in form and substance satisfactory to HDA's counsel.
(e) Other Agreements. The agreements duly executed by the
Company required by Sections 7.2(f) and (g).
SECTION 9. TERMINATION
9.1 Termination by HDA This Agreement may be terminated by HDA, if
HDA is not then in material default, upon written notice to Buyer, upon the
occurrence of any of the following:
(a) Conditions. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of HDA set
forth in this Agreement has not been satisfied or waived in writing by HDA.
(b) Judgments. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that
would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred on or
prior to July 1, 1997.
9.2 Termination by Buyer. This Agreement may be terminated by Buyer,
if Buyer is not then in material default, upon written notice to HDA, upon
the occurrence of any of the following:
(a) Conditions. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of Buyer
set forth in this Agreement has not been satisfied or waived in writing by
Buyer.
(b) Judgments. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that
would prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred on or
prior to July 1, 1997.
9.3 Rights on Termination. If this Agreement is terminated by
either party due to the other party's breach of any provision of this
Agreement, such party shall have all rights and remedies available at law
or equity.
9.4 Specific Performance. The parties recognize that if HDA breaches
this Agreement and refuses to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Buyer
for its injury. Buyer shall therefore be entitled, in addition to any
other remedies that may be available, to obtain specific performance of the
terms of this Agreement. If any action is brought by Buyer to enforce this
Agreement, HDA shall waive the defense that there is an adequate remedy at
law.
9.5 Attorneys' Fees. In the event of a default by either party that
(PAGE)20
results in a lawsuit or other proceeding for any remedy available under
this Agreement, the prevailing party shall be entitled to reimbursement
from the other party of its reasonable legal fees and expenses (whether
incurred in arbitration, at trial, or on appeal).
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES
10.1 Survival. Without prejudice to representations and warranties
in other agreements delivered hereunder, all representations and warranties
of Buyer and HDA herein and all covenants of Buyer and HDA herein with
respect to periods prior to Closing shall be deemed continuing
representations, warranties and covenants, and shall survive the Closing
for a period of eighteen (18) months. Any investigations by or on behalf
of any party hereto shall not constitute a waiver as to enforcement of any
representation, warranty, or covenant contained in this Agreement. No
notice or information delivered by 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 HDA. Notwithstanding the Closing but subject
to Section 10.5, HDA hereby agrees to indemnify and hold Buyer harmless
against and with respect to, and shall reimburse Buyer for:
(a) any and all losses, liabilities, or damages resulting from
any untrue representation, breach of warranty, or nonfulfillment of any
covenant by HDA contained herein or in any certificate, document, or
instrument delivered to Buyer hereunder;
(b) any and all losses, liabilities or damages resulting from the
threatened claims and legal actions described in Section 8 of Schedule 1 to
the Officer's Certificate of the Company and HDA dated as of August 30,
1996 delivered at the closing under the First Purchase Agreement;
(c) any and all losses, liabilities, or damages resulting from
any claim by Xxxxxx Capital Corporation relating to the matters alleged in
its letter dated October 29, 1996 to Xx. Xxxx Xxxxxxx;
(d) any and all losses, liabilities, or damages resulting from
any claim that any current use of the property described on Schedule 3.7 to
the First Purchase Agreement in which the Company has a 17.96% ownership
interest does not comply with applicable deed restrictions or zoning
requirements; provided that Buyer uses commercially reasonable efforts to
mitigate any such losses, liabilities or damages;
(e) any and all out-of-pocket costs and expenses, including
reasonable legal fees and expenses, incident to any action, suit,
proceeding, claim, demand, assessment, or judgment incident to the
foregoing or incurred in investigating or attempting to avoid the same or
to oppose the imposition thereof, or in enforcing this indemnity; and
(f) in the event of an early termination of the Company's
(PAGE)21
leasehold interest under the Studio Lease Agreement resulting from any
order by the Puerto Rico Racing Board, (i) any out-of-pocket costs not to
exceed $150,000 of relocating the Company's studio to another facility,
plus (ii) the rent differential between (A) rent payable under the Studio
Lease Agreement for the remainder of the five-year term then in effect at
the time of termination, and (B) rent payable by the Company for a
replacement studio not to exceed 8,000 square feet for the same period;
provided, however, that if the Company enters into a lease for a
replacement studio in excess of 8,000 square feet, then HDA's reimbursement
obligation shall apply only to that portion of the space equal to 8,000
square feet.
10.3 Indemnification by Buyer. Notwithstanding the Closing but
subject to Section 10.5, Buyer hereby agrees to indemnify and hold HDA
harmless against and with respect to, and shall reimburse HDA for:
(a) any and all losses, liabilities, or damages resulting from
any untrue representation, breach of warranty, or nonfulfillment of any
covenant by Buyer contained herein or in any certificate, document, or
instrument delivered to HDA hereunder; and
(b) any and all out-of-pocket costs and expenses, including
reasonable legal fees and expenses, incident to any action, suit,
proceeding, claim, demand, assessment, or judgment incident to the
foregoing or incurred in investigating or attempting to avoid the same or
to oppose the imposition thereof, or in enforcing this indemnity.
10.4 Procedure for Indemnification. The procedure for
indemnification shall be as follows:
(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
(PAGE)22
applicable.
(c) With respect to any claim by a third party as to which the
Claimant is entitled to indemnification under this Agreement, the
Indemnifying Party shall have the right at its own expense, to participate
in or assume control of the defense of such claim, and the Claimant shall
cooperate fully with the Indemnifying Party, subject to reimbursement for
actual out-of-pocket expenses incurred by the Claimant as the result of a
request by the Indemnifying Party. If the Indemnifying Party elects to
assume control of the defense of any third-party claim, the Claimant shall
have the right to participate in the defense of such claim at its own
expense. If the Indemnifying Party does not elect to assume control or
otherwise participate in the defense of any third-party claim, it shall be
bound by the results obtained 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.
(e) The indemnifications rights provided in Section 10.2 and
Section 10.3 shall extend to the partners, officers, employees, and
representatives of any Claimant although for the purpose of the procedures
set forth in this Section 10.4, any indemnification claims by such parties
shall be made by and through the Claimant.
10.5 Certain Limitations.
(a) Except as provided in paragraph (c) of this Section 10.5,
notwithstanding anything in this Agreement to the contrary, neither party
shall indemnify or otherwise be liable to the 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, (i) unless notice
of the claim is given within eighteen months after the Closing Date and
(ii) except to the extent the losses, obligations, liabilities, costs and
expenses of such party arising therefrom exceed in the aggregate Ten
Thousand Dollars ($10,000).
(b) Notwithstanding anything in this Agreement to the contrary,
no indemnification shall be payable by HDA or by Buyer to any Claimant in
excess of Two Hundred Thousand Dollars ($200,000) in the aggregate, except
with respect to Sections 3.5, 3.3, 5.10, 6.12, 10.2(c), 10.2(d) and
10.2(f) or with respect to the failure of Buyer to pay the Purchase Price.
(c) The limitations on indemnification set forth in paragraph (a)
of this Section 10.5 shall not apply to indemnification obligations of HDA
under Sections 10.2(c), 10.2(d) or 10.2(f).
10.6 Exclusivity of Remedy. Except as otherwise specifically
provided for in this Agreement, the provisions of this Section 10 shall be
the sole recourse of Buyer and HDA for any matters relating to or arising
in connection with this Agreement, and such recourse is explicitly limited
to the amounts and time limits set forth in Section 10.5.
(PAGE)23
SECTION 11. MISCELLANEOUS
11.1 Fees and Expenses. HDA shall pay any filing fees, transfer
taxes, document stamps, or other charges levied by any governmental entity
on account of the transfer of the Stock from HDA to Buyer. Except as
provided in Section 6.1 (b) of this Agreement, Buyer and HDA shall each pay
one-half of any fees charged by the FCC in connection with obtaining the
FCC Consent. Except as otherwise specifically 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.
11.2 Notices. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall be in
writing and shall be addressed as follows:
If to Buyer: Xxxxxx Communications of San Xxxx, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxx
with copies (which shall not
constitute notice) to: Xxxx X. Xxxxx, Xx., Esq.
Dow, Xxxxxx & Xxxxxxxxx
0000 Xxx Xxxxxxxxx Xxx., X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
If to HDA: Housing Development Associates X.X.
000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxx
Xxxxxx Xxxx 00000
Attention: President
with a copy (which shall not
constitute notice) to: W. Xxxxxx Xxxx, Esq.
Xxxxxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
or to any other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this
Section 11.2. A notice mailed by registered or certified mail, postage
prepaid and return receipt requested, shall be deemed to have been duly
delivered and received on the date of receipt shown on the return receipt.
11.3 Benefit and Binding Effect. No party hereto may assign this
Agreement without the prior written consent of the other parties hereto;
provided, however, that Buyer may assign its rights and obligations under
this Agreement to another entity without seeking or obtaining HDA's prior
approval provided, further, that Buyer shall guarantee such assignee's
(PAGE)24
performance hereunder. Upon any assignment by Buyer or permitted
assignment by HDA in accordance with this Section 11.3, all references to
"Buyer" herein shall be deemed to be references to Buyer's assignee and all
references to "HDA" herein shall be deemed to be references to HDA's
assignee. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
11.4 Further Assurances. The parties shall take any actions and
execute any other documents that may be necessary or desirable to the
implementation and consummation of this Agreement.
11.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED, AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT
REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF).
11.6 Headings. The headings herein are included for ease of
reference only and shall not control or affect the meaning or construction
of the provisions of this Agreement.
11.7 Entire Agreement. This Agreement, the schedules hereto, the
First Purchase Agreement, the Shareholder Agreement, the Management
Agreement, and all documents, certificates, and other documents to be
delivered or previously delivered by the parties pursuant hereto or thereto
(including the Assumption Agreement and the Closing Agreement executed at
the closing of the First Purchase Agreement), collectively represent the
entire understanding and agreement between Buyer and HDA 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.
11.8 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 11.8.
11.9 Counterparts. This Agreement may be signed in counterparts with
the same effect as if the signature on each counterpart were upon the same
instrument.
11.10 Guaranty of PCC. In consideration of the execution and
delivery of this Agreement by HDA, Xxxxxx Communications Corporation
("PCC") agrees as follows:
(a) PCC hereby guarantees the full, complete and timely
(PAGE)25
performance by Buyer of each and every obligation of Buyer under this
Agreement. If any default shall be made by Buyer in the performance of any
of such obligations, then PCC will itself perform or cause to be performed
such obligation upon receipt of notice from HDA specifying in summary form
the default;
(b) PCC waives presentment, protest, demand or action in respect
of any of the obligations of Buyer under this Agreement. PCC waives all
notices of nonperformance, notices of protest, notices of dishonor and
notices of acceptance of this guaranty; and
(c) this guaranty shall be deemed a continuing guaranty, and the
above consents and waivers of PCC shall remain in full force and effect
until the satisfaction in full of all obligations of Buyer under this
Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
(PAGE)26
IN WITNESS WHEREOF, this Agreement has been executed by the duly
authorized officers of Buyer and HDA as of the date first written above.
XXXXXX COMMUNICATIONS OF SAN XXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
HOUSING DEVELOPMENT ASSOCIATES S.E.
By: Equus Gaming Company L.P.,
its managing partner
By: Equus Management Company,
its managing general partner
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
With respect to Section 11.10 only:
XXXXXX COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
(PAGE)27
EXHIBITS AND SCHEDULES TO
STOCK PURCHASE AGREEMENT
EXHIBITS
EXHIBIT A - ECOC Amendment
EXHIBIT B - Studio Lease Agreement
SCHEDULES
Schedule 3.4 - HDA Consents
Schedule 3.7 - Mortgage
Schedule 8.2(e) - Officers and Directors to Resign
(PAGE)28
SCHEDULE 3.4
HDA CONSENTS
None.
(PAGE)29
SCHEDULE 3.7
MORTGAGE
The mortgage set forth below on land in Cubuy, Canovanas, Puerto
Rico which land is described in Schedule 3.7 to the First Purchase
Agreement and in which the Company has a 17.96% ownership interest:
Mortgage in the principal sum of $170,000 in favor of bearer,
created as per Deed No. 43 executed on March 2, 1987 before Notary
Public Xxxxxxx X. Power, duly recorded at page 248(r) of Canovanas,
14th inscription.
Mortgage in favor of bearer in the principal sum of $150,000
created as per Deed No. 56 executed on May 31, 1989 before notary
Public Xxxxxx X. Xxxxxxx xx Xxxxxxxx, duly recorded at page 250 of
book 98 of Canovanas, 17th and last inscription.
(PAGE)30
SCHEDULE 8.2(e)
OFFICERS AND DIRECTORS TO RESIGN
Directors
Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxx
Officers
Xxxxxx X. Xxxxxxxx Vice President
Xxxxxxxx Xxxxxx Assistant Secretary
(PAGE)31
EXHIBIT A
FORM OF ECOC AMENDMENT
(PAGE)32
EXHIBIT B
FORM OF STUDIO LEASE AGREEMENT
