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EXHIBIT 10.164
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ASSET PURCHASE AGREEMENT
BY AND BETWEEN
XXXXXX COMMUNICATIONS OF
MIAMI-35, INC.
AND
CHANNEL 35 OF MIAMI, INC.
* * *
APRIL 22, 1997
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS......................................................... 1
"Accounts Receivable".................................................. 1
"Affiliation Agreement"................................................ 1
"Assets"............................................................... 1
"Assumed Contracts".................................................... 2
"Closing".............................................................. 2
"Closing Date"......................................................... 2
"Consents"............................................................. 2
"Contracts"............................................................ 2
"FCC".................................................................. 2
"FCC Consent".......................................................... 2
"FCC Licenses"......................................................... 2
"Final Order".......................................................... 2
"Intangibles".......................................................... 2
"Licenses"............................................................. 3
"Note"................................................................. 3
"Purchase Price"....................................................... 3
"Real Property"........................................................ 3
"Tangible Personal Property"........................................... 3
"Time Brokerage Agreement"............................................. 3
SECTION 2. PURCHASE AND SALE OF ASSETS......................................... 3
2.1 Agreement to Sell and Buy..................................... 3
2.2 Excluded Assets............................................... 4
2.4 Payment of Purchase Price..................................... 5
2.5 Assumption of Liabilities and Obligations..................... 5
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER............................ 6
3.1 Organization, Standing, and Authority......................... 6
3.2 Authorization and Binding Obligation.......................... 6
3.3 Absence of Conflicting Agreements............................. 6
3.4 Governmental Licenses......................................... 6
3.5 Title to and Condition of Real Property....................... 7
3.6 Title to and Condition of Tangible Personal Property.......... 8
3.7 Assumed Contracts............................................. 8
3.8 Consents...................................................... 8
3.9 Intangibles................................................... 9
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3.10 Insurance......................................................9
3.11 Reports........................................................9
3.12 Personnel......................................................9
3.13 Taxes.........................................................10
3.14 Claims and Legal Actions......................................11
3.15 Environmental Matters.........................................11
3.16 Compliance with Laws..........................................13
3.17 Conduct of Business in Ordinary Course........................13
3.18 Transactions with Affiliates..................................13
3.19 Broker........................................................13
3.20 Full Disclosure...............................................13
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER.............................14
4.1 Organization, Standing, and Authority.........................14
4.2 Authorization and Binding Obligation..........................14
4.3 Absence of Conflicting Agreements.............................14
4.4 Broker........................................................14
4.5 Buyer Qualifications..........................................14
4.6 Full Disclosure...............................................15
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING..........................15
5.1 Generally.....................................................15
5.2 Compensation..................................................15
5.3 Contracts.....................................................15
5.4 Disposition of Assets.........................................15
5.5 Encumbrances..................................................15
5.6 Licenses......................................................16
5.7 Rights........................................................16
5.8 No Inconsistent Action........................................16
5.9 Access to Information.........................................16
5.10 Maintenance of Assets.........................................16
5.11 Insurance.....................................................16
5.12 Consents......................................................16
5.13 Books and Records.............................................17
5.14 Notification..................................................17
5.15 Compliance with Laws..........................................17
5.16 Financing Leases..............................................17
5.17 Programming...................................................17
5.18 Preservation of Business......................................17
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5.19 Collection of Accounts Receivable.............................17
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS....................................18
6.1 FCC Consent...................................................18
6.2 Control of the Station........................................18
6.3 Risk of Loss..................................................18
6.4 Confidentiality...............................................19
6.5 Environmental Audit...........................................19
6.6 Engineering Study.............................................19
6.7 Cooperation...................................................19
6.8 Sales Tax Filings.............................................20
6.9 Access to Books and Records...................................20
6.10 Appraisal.....................................................20
6.11 Buyer Conduct.................................................20
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER
AT CLOSING....................................................20
7.1 Conditions to Obligations of Buyer............................20
7.2 Conditions to Obligations of Seller...........................21
SECTION 8. CLOSING AND CLOSING DELIVERIES......................................22
8.1 Closing.......................................................22
8.2 Deliveries by Seller..........................................22
8.3 Deliveries by Buyer...........................................23
SECTION 9. TERMINATION.........................................................24
9.1 Termination by Seller.........................................24
9.2 Termination by Buyer..........................................24
9.3 Rights on Termination.........................................25
9.4 Survival of Option............................................25
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES..................................26
10.1 Representations and Warranties................................26
10.2 Indemnification by Seller.....................................26
10.3 Indemnification by Buyer......................................26
10.4 Procedure for Indemnification.................................27
10.5 Specific Performance..........................................28
10.6 Attorneys' Fees...............................................29
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SECTION 11. MISCELLANEOUS......................................................29
11.1 Fees and Expenses.............................................29
11.2 Arbitration...................................................29
11.3 Notices.......................................................29
11.4 Benefit and Binding Effect....................................30
11.5 Further Assurances............................................30
11.6 Governing Law.................................................31
11.7 Headings......................................................31
11.8 Gender and Number.............................................31
11.9 Entire Agreement..............................................31
11.10 Waiver of Compliance; Consents................................31
11.11 Press Release.................................................31
11.12 Consent to Jurisdiction and Service of Process................31
11.13 Counterparts..................................................32
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LIST OF SCHEDULES
Exhibit A -- Affiliation Agreement
Schedule 2.2 -- Excluded Assets
Schedule 3.3 -- Onsents
Schedule 3.4 -- Licenses
Schedule 3.5 -- Real Property
Schedule 3.6 -- Tangible Personal Property
Schedule 3.7 -- Contracts
Schedule 3.9 -- Intangibles
Schedule 3.12 -- Employee Matters
Schedule 3.14 -- Litigation
Schedule 8.2(b) -- Estoppel Certificate
Schedule 8.2(g) -- Opinion of Seller's Counsel
Schedule 8.3(d) -- Opinion of Buyer's Counsel
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is dated as of the 22nd day of April,
1997, by and between Xxxxxx Communications of Miami-35, Inc., a Florida
corporation ("Buyer"), and Channel 35 of Miami, Inc., a Florida corporation
("Seller").
R E C I T A L S
A. Seller and Buyer are parties to an Option Agreement dated as of
April 1, 1994 (the "Option Agreement"), pursuant to which Seller granted to
Buyer an option (the "Option") to acquire from Seller substantially all of the
assets used or useful in the business or operations of Television Station
WCTD(TV), Miami, Florida (the "Station").
B. In accordance with the Option Agreement, Buyer has notified Seller
that Buyer intends to exercise the Option.
C. Seller desires to sell, and Buyer desires to buy, substantially all
the assets that are used or useful in the business or operations of the Station,
for the price and on the terms and conditions set forth in this Agreement.
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, Buyer and Seller, intending to be bound
legally, agree as follows:
SECTION 1. DEFINITIONS
The following terms, as used in this Agreement, shall have the meanings
set forth in this Section:
"Accounts Receivable" means the rights of Seller to payment for the
sale of advertising or programming time run on the Station by Seller prior to
the Closing Date.
"Affiliation Agreement" means the Affiliation Agreement in the form of
Exhibit A hereto to be entered into upon the Closing by Buyer and The Christian
Network, Inc.
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Buyer under this Agreement, as specified in Section 2.1.
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"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7 that
are designated as Contracts that are to be assumed by Buyer upon its purchase of
the Station and (ii) any Contracts entered into by Seller between the date of
this Agreement and the Closing Date that Buyer agrees in writing to assume.
"Closing" means the consummation of the purchase and sale of the Assets
pursuant to this Agreement in accordance with the provisions of Section 8.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to Buyer or
otherwise to consummate the transactions contemplated by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses, and
other agreements (including leases for personal or real property and employment
agreements), written or oral (including any amendments and other modifications
thereto) to which Seller is a party or which are binding upon Seller and which
relate to or affect the Assets or the business or operations of the Station, and
(i) which are in effect on the date of this Agreement or (ii) which are entered
into by Seller between the date of this Agreement and the Closing Date.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the
assignment of the FCC Licenses to Buyer as contemplated by this Agreement.
"FCC Licenses" means all Licenses issued by the FCC to Seller in
connection with the business or operations of the Station.
"Final Order" means an action by the FCC that has not been reversed,
stayed, enjoined, set aside, annulled, or suspended, and with respect to which
no requests are pending for administrative or judicial review, reconsideration,
appeal, or stay, and the time for filing any such requests and the time for the
FCC to set aside the action on its own motion have expired.
"Intangibles" means all copyrights, trademarks, trade names, service
marks, service names, licenses, patents, permits, jingles, proprietary
information, technical information and data, machinery and equipment warranties,
and other similar intangible property rights and interests (and any goodwill
associated with any of the foregoing) applied for, issued to, or owned by Seller
or under which Seller is licensed or franchised and which are used or useful in
the business and operations of the Station, together with any additions thereto
between the date of this Agreement and the Closing Date.
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"Licenses" means all licenses, permits, and other authorizations issued
by the FCC, the Federal Aviation Administration, or any other federal, state, or
local governmental authorities in connection with the conduct of the business or
operations of the Station, together with any additions thereto between the date
of this Agreement and the Closing Date.
"Note" means the Unsecured Promissory Note dated April 1, 1994, in the
principal amount of $1,100,000, delivered by Seller to New Miami Latino
Broadcasting Corporation.
"Purchase Price" means the purchase price specified in Section 2.3.
"Real Property" means all real property and 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, and other real property interests which are used or
useful in the business or operations of the Station, together with any additions
thereto between the date of this Agreement and the Closing Date.
"Tangible Personal Property" means all machinery, equipment, tools,
vehicles, furniture, leasehold improvements, office equipment, plant, inventory,
spare parts, and other tangible personal property which is used or useful in the
conduct of the business or operations of the Station, together with any
additions thereto between the date of this Agreement and the Closing Date.
"Time Brokerage Agreement" means the Time Brokerage Agreement dated as
of April 1, 1994, between Seller and Buyer.
SECTION 2. PURCHASE AND SALE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and conditions set
forth in this Agreement, Seller hereby agrees to sell, transfer, and deliver to
Buyer on the Closing Date, and Buyer agrees to purchase, all of the tangible and
intangible assets used or useful in connection with the conduct of the business
or operations of the Station, together with any additions thereto between the
date of this Agreement and the Closing Date, but excluding the assets described
in Section 2.2, free and clear of any claims, liabilities, security interests,
mortgages, liens, pledges, conditions, charges, or encumbrances of any nature
whatsoever (except for encumbrances permitted by Section 5.5 herein), including
the following:
(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
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(d) The Assumed Contracts;
(e) The Intangibles and all other intangible assets of Seller
relating to the Station that are not specifically included within the
Intangibles, including the goodwill of the Station, if any, except for any lists
of donors, contributors or other supporters of the Station;
(f) All of Seller's proprietary information, technical
information and data, machinery and equipment warranties, maps, computer discs
and tapes, plans, diagrams, blueprints, and schematics, including filings with
the FCC relating to the business and operation of the Station;
(g) The Accounts Receivable as of 11:59 p.m., local time, on
the day prior to the Closing Date;
(h) All choses in action of Seller relating to the Station;
and
(i) All books and records relating to the business or
operations of the Station, including executed copies of the Assumed Contracts,
and all records required by the FCC to be kept by the Station.
2.2 Excluded Assets. The Assets shall exclude the following assets:
(a) Seller's cash on hand as of the Closing and all other cash
in any of Seller's bank or savings accounts; any insurance policies, letters of
credit, or other similar items and cash surrender value in regard thereto; and
any stocks, bonds, certificates of deposit and similar investments;
(b) All books and records that Seller is required by law to
retain and that pertain to Seller's corporate organization;
(c) Any pension, profit-sharing, or employee benefit plans,
and any collective bargaining agreements;
(d) All property listed on Schedule 2.2 hereto; and
(e) All lists of donors, contributors or other supporters of
the Station.
2.3 Purchase Price. The Purchase Price for the Assets shall be One
Million One Hundred Thousand Dollars ($1,100,000), less the aggregate payments
made by Buyer to Seller (pursuant to the April 1, 1994 Time Brokerage Agreement)
representing reimbursement for payments under the Note, adjusted as provided in
Section 2.3(a) below, payable in cash at the Closing.
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(a) Prorations. The Purchase Price shall be increased or
decreased as required to effectuate the proration of expenses, other than
expenses for which Buyer is obligated to reimburse Seller under the Time
Brokerage Agreement, for which no proration shall be required. All expenses
arising from the operation of the Station, including business and license fees,
utility charges, real and personal property taxes and assessments levied against
the Assets, property and equipment rentals, applicable copyright or other fees,
sales and service charges, taxes (except for taxes arising from the transfer of
the Assets under this Agreement), FCC regulatory fees, and similar prepaid and
deferred items, shall be prorated between Buyer and Seller in accordance with
the principle that Seller shall be responsible for all expenses, costs, and
liabilities allocable to the period prior to the Closing Date, other than
expenses for which Buyer is obligated to reimburse Seller under the Time
Brokerage Agreement, and Buyer shall be responsible for all expenses, costs, and
obligations allocable to the period on and after the Closing Date.
Notwithstanding the preceding sentence, there shall be no adjustment for, and
Seller shall remain solely liable with respect to, any Contracts not included in
the Assumed Contracts and any other obligation or liability not being assumed by
Buyer in accordance with Section 2.5.
(b) Manner of Determining Adjustments. Any adjustments will,
insofar as feasible, be determined and paid on the Closing Date, with final
settlement and payment by the appropriate party occurring no later than ninety
(90) days after the Closing Date or such other date as the parties shall
mutually agree upon.
2.4 Payment of Purchase Price. The cash portion of the Purchase Price,
as adjusted, shall be paid by Buyer to Seller at Closing by wire transfer of
same-day funds pursuant to wire instructions which shall be delivered by Seller
to Buyer, at least two days prior to the Closing Date.
2.5 Assumption of Liabilities and Obligations. As of the Closing Date,
Buyer shall assume and undertake to pay, discharge, and perform all obligations
and liabilities of Seller under the Licenses and the Assumed Contracts insofar
as they relate to the time on and after the Closing Date, and arise out of
events related to Buyer's ownership of the Assets or its operation of the
Station on or after the Closing Date. Buyer shall not assume any other
obligations or liabilities of Seller, including (i) any obligations or
liabilities under any Contract not included in the Assumed Contracts, (ii) any
obligations or liabilities under the Assumed Contracts relating to the period
prior to the Closing Date, (iii) any claims or pending litigation or proceedings
relating to the operation of the Station prior to the Closing, (iv) any
obligations or liabilities arising under capitalized leases or other financing
agreements not assumed by Buyer, (v) any obligations or liabilities arising
under agreements entered into other than in the ordinary course of business,
(vi) any obligations or liabilities of Seller under any employee pension,
retirement, or other benefit plans or collective bargaining agreements, (vii)
any obligation to any employee of the Seller who is employed at the Station for
severance benefits, vacation time, or sick leave accrued prior to the Closing
Date, or (viii) any obligations or liabilities caused by, arising out of, or
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resulting from any action or omission of Seller prior to the Closing, and all
such obligations and liabilities shall remain and be the obligations and
liabilities solely of Seller.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization, Standing, and Authority. Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Florida and is duly qualified and in good standing under the laws of the State
of Florida. Seller has all requisite power and authority (i) to own, lease, and
use the Assets as now owned, leased, and used, (ii) to conduct the business and
operations of the Station as now conducted, and (iii) to execute and deliver
this Agreement and the documents contemplated hereby, and to perform and comply
with all of the terms, covenants, and conditions to be performed and complied
with by Seller hereunder. Seller is not a participant in any joint venture or
partnership with any other person or entity with respect to any part of the
operations of the Station or any of the Assets.
3.2 Authorization and Binding Obligation. The execution, delivery, and
performance of this Agreement by Seller have been duly authorized by all
necessary actions on the part of Seller and its shareholder. This Agreement has
been duly executed and delivered by Seller and constitutes the legal, valid, and
binding obligation of Seller, enforceable against it in accordance with its
terms, except as the enforceability of this Agreement may be affected by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally,
and by judicial discretion in the enforcement of equitable remedies.
3.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents listed on Schedule 3.3, the execution, delivery, and performance of
this Agreement and the documents contemplated hereby (with or without the giving
of notice, the lapse of time, or both): (i) do not require the consent of any
third party; (ii) will not conflict with any provision of the Articles of
Incorporation or Bylaws of Seller; (iii) will not conflict with, result in a
breach of, or constitute a default under, any law, judgment, order, ordinance,
injunction, decree, rule, regulation, or ruling of any court or governmental
instrumentality; (iv) will not conflict with, constitute grounds for termination
of, result in a breach of, constitute a default under, or accelerate or permit
the acceleration of any performance required by the terms of, any agreement,
instrument, license, or permit to which Seller is a party or by which Seller may
be bound; and (v) will not create any claim, liability, mortgage, lien, pledge,
condition, charge, or encumbrance of any nature whatsoever upon any of the
Assets.
3.4 Governmental Licenses. Schedule 3.4 includes a true and complete
list of the Licenses. Seller has delivered to Buyer true and complete copies of
the Licenses (including any amendments and other modifications thereto). The
Licenses have been validly issued, and Seller is the authorized legal holder
thereof. The Licenses listed on Schedule 3.4 comprise all of the
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licenses, permits, and other authorizations required from any governmental or
regulatory authority for the lawful conduct of the business and operations of
the Station in the manner and to the full extent they are now conducted, and
none of the Licenses is subject to any restriction or condition that would limit
the full operation of the Station as now operated. The Licenses are in full
force and effect, and the conduct of the business and operations of the Station
is in accordance therewith in all material respects. Seller has no reason to
believe that any of the Licenses would not be renewed by the FCC or other
granting authority in the ordinary course. The Station's city of license, as
determined by the FCC, is located within the Miami, Florida Area of Dominant
Influence as defined by the 1991-1992 Area of Dominant Influence Market Guide
published by The Arbitron Co. and the Miami, Florida Designated Market Area as
defined by the 0000 Xxxxxx Xxxxxx Television Household Estimates published by
Xxxxxxx Media Research. To the best of Seller's knowledge, on or before October
1, 1996, the Station made a valid election of must carry with respect to each
cable system located within the Station's Area of Dominant Influence. Except as
disclosed on Schedule 3.4, no cable system on which the Station is entitled to
must carry status has advised the Station of any signal quality or copyright
indemnity or other prerequisite to cable carriage of the Station's signal, and
no cable system has declined or threatened to decline such carriage or failed to
respond to a request for carriage or sought any form of relief from carriage
from the FCC.
3.5 Title to and Condition of Real Property. Schedule 3.5 contains a
complete and accurate description of all the Real Property and Seller's
interests therein. The Real Property listed on Schedule 3.5 comprises all real
property interests necessary to conduct the business and operations of the
Station as now conducted. Seller has good and marketable fee simple title,
insurable at standard rates, to all fee estates (including the improvements
thereon) included in the Real Property, free and clear of all liens, mortgages,
pledges, covenants, easements, restrictions, encroachments, leases, charges, and
other claims and encumbrances of any nature whatsoever, and without reservation
or exclusion of any mineral, timber, or other rights or interests, except for
liens for real estate taxes not yet due and payable and liens disclosed on
Schedule 3.5. With respect to each leasehold or subleasehold interest included
in the Real Property being conveyed under this Agreement, so long as Seller
fulfills its obligations under the lease therefor, Seller has enforceable rights
to nondisturbance and quiet enjoyment, and, to the best of Seller's knowledge,
no third party holds any interest in the leased premises with the right to
foreclose upon Seller's leasehold or subleasehold interest. All towers, guy
anchors, and buildings and other improvements included in the Assets are located
entirely on the Real Property listed in Schedule 3.5. Seller has delivered to
Buyer true and complete copies of all deeds pertaining to the Real Property. All
Real Property (including the improvements thereon) (i) is in good condition and
repair consistent with its present use, (ii) is available for immediate use in
the conduct of the business and operations of the Station, and (iii) complies in
all material respects with all applicable building or zoning codes and the
regulations of any governmental authority having jurisdiction. Seller has full
legal and practical access to the Real Property. To the best of Seller's
knowledge, all easements, rights-of-way, and real property licenses affecting or
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constituting part of the Real Property have been properly recorded in the
appropriate public recording offices.
3.6 Title to and Condition of Tangible Personal Property. Schedule 3.6
lists all material items of Tangible Personal Property. The Tangible Personal
Property listed on Schedule 3.6 comprises all material items of tangible
personal property necessary to conduct the business and operations of the
Station as now conducted. Except as described in Schedule 3.6, Seller owns and
has good title to each item of Tangible Personal Property, and none of the
Tangible Personal Property owned by Seller is subject to any security interest,
mortgage, pledge, conditional sales agreement, or other lien or encumbrance,
except for encumbrances permitted by Section 5.5 herein. Each item of Tangible
Personal Property is available for immediate use in the business and operations
of the Station. All items of transmitting and studio equipment included in the
Tangible Personal Property (i) have been maintained in a manner consistent with
generally accepted standards of good engineering practice, and (ii) will permit
the Station and any auxiliary broadcast stations used in the operation of the
Station to operate, in all material respects, in accordance with the terms of
the FCC Licenses and the rules and regulations of the FCC, and with all other
applicable federal, state, and local statutes, ordinances, rules, and
regulations.
3.7 Assumed Contracts. Schedule 3.7 is a true and complete list of all
Contracts. Seller has delivered to Buyer true and complete copies of all written
Contracts, true and complete memoranda of all oral Contracts (including any
amendments and other modifications to such Contracts). Other than the Contracts
listed on Schedule 3.7 or any other Schedule to this Agreement, Seller requires
no contract, lease, or other agreement to enable it to carry on its business as
now conducted. All of the Assumed Contracts are in full force and effect, and
are valid, binding, and enforceable in accordance with their terms. There is not
under any Assumed Contract any default by any party thereto or any event that,
after notice or lapse of time or both, could constitute a default. Seller is not
aware of any intention by any party to any Assumed Contract (i) to terminate
such contract or amend the terms thereof, (ii) to refuse to renew the Assumed
Contract upon expiration of its term, or (iii) to renew the Assumed Contract
upon expiration only on terms and conditions which are more onerous than those
now existing. Except for the need to obtain the Consents listed in Schedule 3.3,
Seller has full legal power and authority to assign its rights under the Assumed
Contracts to Buyer in accordance with this Agreement, and such assignment will
not affect the validity, enforceability, or continuation of any of the Assumed
Contracts.
3.8 Consents. Except for the FCC Consent provided for in Section 6.1,
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 (i) to consummate
this Agreement and the transactions contemplated hereby, (ii) to permit Seller
to assign or transfer the Assets to Buyer, or (iii) to enable Buyer to conduct
the
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business and operations of the Station in essentially the same manner as such
business and operations are now conducted.
3.9 Intangibles. Schedule 3.9 is a true and complete list of all
Intangibles (exclusive of those listed in Schedule 3.4), all of which are valid
and in good standing and uncontested. Seller has delivered to Buyer copies of
all documents establishing or evidencing all Intangibles. To the best knowledge
of Seller, Seller is not infringing upon or otherwise acting adversely to any
trademarks, trade names, service marks, service names, copyrights, patents,
patent applications, know-how, methods, or processes owned by any other person
or persons, and there is no claim or action pending, or to the knowledge of
Seller threatened, with respect thereto. The Intangibles listed on Schedule 3.9
comprise all intangible property interests necessary to conduct the business and
operations of the Station as now conducted.
3.10 Insurance. All policies of insurance covering the Assets are in
full force and effect and are adequate in amount with respect to, and for the
full value (subject to customary deductibles) of, the Assets, and insure the
Assets and the business of the Station against all customary and foreseeable
risks. During the past three years, no insurance policy of Seller on the Assets
or the Station has been canceled by the insurer and no application of Seller for
insurance has been rejected by any insurer.
3.11 Reports. To the best of Seller's knowledge, all Station returns,
reports, and statements required to be filed by Seller with the FCC or with any
other governmental agency have been filed, and all reporting requirements of the
FCC and other governmental authorities having jurisdiction over Seller and the
Station have been complied with by Seller in all material respects. All of such
returns, reports, and statements are substantially complete and correct as
filed. Seller has timely paid to the FCC all annual regulatory fees required to
be paid by Seller with respect to the FCC Licenses.
3.12 Personnel.
(a) Employees and Compensation. Schedule 3.12 contains a true
and complete list of all employees of the Seller who are employed at the
Station, their job titles, date of hire and current salary. Schedule 3.12 also
contains a true and complete list as of the date of this Agreement of all
employee benefit plans or arrangements applicable to the employees of the
Station and all fixed or contingent liabilities or obligations of Seller with
respect to any person now or formerly employed by Seller at the Station,
including pension or thrift plans, individual or supplemental pension or accrued
compensation arrangements, contributions to hospitalization or other health or
life insurance programs, incentive plans, bonus arrangements, and vacation, sick
leave, disability and termination arrangements or policies, including workers'
compensation policies. Seller has furnished Buyer with true and complete copies
of all employee handbooks, employee
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rules and regulations, and summary plan descriptions of the written plans and
arrangements listed in Schedule 3.12, and with descriptions of the unwritten
plans and arrangements listed in Schedule 3.12. At Buyer's request, Seller will
furnish Buyer with true and complete copies of all applicable plan documents,
trust documents, and insurance contracts with respect to the plans and
arrangements listed on Schedule 3.12. All employee benefits and welfare plans or
arrangements listed in Schedule 3.12 were established and have been executed,
managed and administered in accordance with the Internal Revenue Code of 1986,
as amended, the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and all other laws. Seller is not aware of the existence of any
governmental audit or examination of any of such plans or arrangements or of any
facts which would lead it to believe that any such audit or examination is
pending or threatened. No action, suit, or claim with respect to any of such
plans or arrangements (other than routine claims for benefits) is pending or, to
the knowledge of Seller, threatened, and Seller possesses no knowledge of any
facts which could give rise to any such action, suit or claim.
(b) Labor Relations. Seller is not a party to or subject to
any collective bargaining agreements with respect to the Station. Seller has no
written or oral contracts of employment with any employee of the Station, other
than those listed in Schedule 3.7. Seller has complied with all laws, rules, and
regulations relating to the employment of labor, including those related to
wages, hours, collective bargaining, occupational safety, discrimination, and
the payment of social security and other payroll related taxes, and it has not
received any notice alleging that it has failed to comply in any material
respect with any such laws, rules, or regulations. No controversies, disputes,
or proceedings are pending or, to the best of its knowledge, threatened, between
it and any employee (singly or collectively) of the Station. No labor union or
other collective bargaining unit represents or claims to represent any of the
employees of the Station. To Seller's knowledge, there is no union campaign
being conducted to solicit cards from employees to authorize a union to request
a National Labor Relations Board certification election with respect to any
employees at the Station.
(c) Liabilities. Seller has no liability of any kind to or in
respect of any employee benefit plan, including withdrawal liability under
Section 4201 of ERISA. Seller has not incurred any accumulated funding
deficiency within the meaning of ERISA or Section 4971 of the Internal Revenue
Code. Seller has not failed to make any required contributions to any employee
benefit plan. The Pension Benefit Guaranty Corporation has not asserted that
Seller has incurred any liability in connection with any such plan. No lien has
been attached and no person has threatened to attach a lien on any property of
Seller as a result of a failure to comply with ERISA.
3.13 Taxes. Seller has filed or caused to be filed all federal income
tax returns and all other federal, state, county, local, or city tax returns
which are required to be filed, and it has paid or caused to be paid all taxes
shown on those returns or on any tax assessment received by it to the extent
that such taxes have become due, or has set aside on its books adequate reserves
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(segregated to the extent required by generally accepted accounting principles)
with respect thereto. There are no governmental investigations or other legal,
administrative, or tax proceedings pursuant to which Seller is or could be made
liable for any taxes, penalties, interest, or other charges, the liability for
which could extend to Buyer as transferee of the business of the Station, and,
to the best knowledge of Seller, no event has occurred that could impose on
Buyer any transferee liability for any taxes, penalties, or interest due or to
become due from Seller.
3.14 Claims and Legal Actions. Except for any FCC rulemaking
proceedings generally affecting the broadcasting industry or as listed on
Schedule 3.14 attached hereto, there is no claim, legal action, counterclaim,
suit, arbitration, governmental investigation or other legal, administrative, or
tax proceeding, nor any order, decree or judgment, in progress or pending, or to
the knowledge of Seller threatened, against or relating to Seller with respect
to its ownership or operation of the Station or otherwise relating to the Assets
or the business or operations of the Station, nor does Seller know or have
reason to be aware of any basis for the same. In particular, but without
limiting the generality of the foregoing, there are no applications, pending or,
to the best of its knowledge, complaints or proceedings pending or threatened
(i) before the FCC relating to the business or operations of the Station other
than rule making proceedings which affect the television industry generally,
(ii) before any federal or state agency relating to the business or operations
of the Station involving charges of illegal discrimination under any federal or
state employment laws or regulations, or (iii) before any federal, state, or
local agency relating to the business or operations of the Station involving
zoning issues under any federal, state, or local zoning law, rule, or
regulation.
3.15 Environmental Matters.
(a) Seller has complied in all material respects with all
laws, rules, and regulations of all federal, state, and local governments (and
all agencies thereof) concerning the environment, public health and safety, and
employee health and safety, and Seller has received no notice of a charge,
complaint, action, suit, proceeding, hearing, investigation, claim, demand, or
notice having been filed or commenced against Seller in connection with its
ownership or operation of the Station alleging any failure to comply with any
such law, rule, or regulation.
(b) To the best of Seller's knowledge, Seller has no liability
relating to its ownership and operation of the Station that could reasonably be
expected to have a material adverse effect on the business or operations of the
Station (and there is no basis related to the present operations, properties, or
facilities of Seller for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand against Seller giving rise
to any such liability) under any law, rule, or regulation of any federal, state,
or local government (or agency thereof) concerning release or threatened release
of hazardous substances, public health and safety, or pollution or protection of
the environment.
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(c) To the best of Seller's knowledge, Seller has no liability
relating to its ownership and operation of the Station that could reasonably be
expected to have a material adverse effect on the business or operations of the
Station (and Seller has not handled or disposed of any substance, arranged for
the disposal of any substance, or owned or operated any property or facility in
any manner that could form the basis for any present or future charge,
complaint, action, suit, proceeding, hearing, investigation, claim, or demand
(under the common law or pursuant to any statute) against Seller giving rise to
any such liability) for damage to any site, location, or body of water (surface
of subsurface) or for illness or personal injury.
(d) To the best of Seller's knowledge, Seller has no liability
relating to its ownership and operation of the Station that could reasonably be
expected to have a material adverse effect on the business or operations of the
Station (and there is no basis for any present or future charge, complaint,
action, suit, proceeding, hearing, investigation, claim, or demand against
Seller giving rise to any such liability) under any law, rule, or regulation of
any federal, state, or local government (or agency thereof) concerning employee
health and safety.
(e) To the best of Seller's knowledge, Seller has no liability
relating to its ownership and operation of the Station that could reasonably be
expected to have a material adverse effect on the business or operations of the
Station (and Seller has not exposed any employee to any substance or condition
that could form the basis for any present or future charge, complaint, action,
suit, proceeding, hearing, investigation, claim, or demand (under the common law
or pursuant to statute) against Seller giving rise to any such liability) for
any illness or personal injury to any employee.
(f) To the best of Seller's knowledge, in connection with its
ownership or operation of the Station, Seller has obtained and been in
compliance in all material respects with all of the terms and conditions of all
permits, licenses, and other authorizations which are required under, and has
complied with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules, and timetables which are
contained in, all federal, state, and local laws, rules, and regulations
(including all codes, plans, judgments, orders, decrees, stipulations,
injunctions, and charges thereunder) relating to public health and safety,
worker health and safety, and pollution or protection of the environment,
including laws relating to emissions, discharges, releases, or threatened
releases of pollutants, contaminants, or chemical, industrial, hazardous, or
toxic materials or wastes into ambient air, surface water, ground water, or
lands or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes.
(g) No pollutant, contaminant, or chemical, industrial,
hazardous, or toxic material or waste has ever been manufactured, buried,
stored, spilled, leaked, discharged, emitted, or released by Seller in
connection with its ownership and operation of the Station or, to the best of
Seller's knowledge, by any other party on any Real Property.
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3.16 Compliance with Laws. Seller has complied in all material respects
with the Licenses and all federal, state, and local laws, rules, regulations,
and ordinances applicable or relating to the ownership and operation of the
Station. Neither the ownership or use of the properties of the Station nor the
conduct of the business or operations of the Station conflicts with the rights
of any other person or entity.
3.17 Conduct of Business in Ordinary Course. Since December 31, 1996,
Seller has conducted the business and operations of the Station only in the
ordinary course and has not:
(a) Suffered any material adverse change in the assets or
properties of the Station, including any damage, destruction, or loss affecting
any assets used or useful in the conduct of the business of the Station;
(b) Made any sale, assignment, lease, or other transfer of any
of the Station's properties other than in the normal and usual course of
business with suitable replacements being obtained therefor;
(c) Canceled any debts owed to or claims held by Seller with
respect to the Station, except in the normal and usual course of business;
(d) Suffered any material write-down of the value of any
Assets or any material write-off as uncollectible of any accounts receivable of
the Station; or
(e) Transferred or granted any right under, or entered into
any settlement regarding the breach or infringement of, any license, patent,
copyright, trademark, trade name, franchise, or similar right, or modified any
existing right relating to the Station.
3.18 Transactions with Affiliates. Seller has not been involved in any
business arrangement or relationship relating to the Station with any affiliate
of Seller, and no affiliate of Seller owns any property or right, tangible or
intangible, which is used in the business of the Station, other than such
arrangements and relationships between Seller and The Christian Network, Inc.
that have been disclosed to Buyer. As used in this paragraph, "affiliate" has
the meaning set forth in Rule 12b-2 promulgated under the Securities and
Exchange Act of 1934.
3.19 Broker. Neither Seller nor any person acting on Seller's behalf
has incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement.
3.20 Full Disclosure. No representation or warranty made by Seller in
this Agreement or in any certificate, document, or other instrument furnished or
to be furnished by Seller pursuant hereto contains or will contain any untrue
statement of a material fact, or omits or will
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omit to state any material fact and required to make any statement made herein
or therein not misleading.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization, Standing, and Authority. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Florida. Buyer has all requisite power and authority to execute and deliver this
Agreement and the documents contemplated hereby, and to perform and comply with
all of the terms, covenants, and conditions to be performed and complied with by
Buyer hereunder.
4.2 Authorization and Binding Obligation. The execution, delivery, and
performance of this Agreement by Buyer have been duly authorized by all
necessary actions on the part of Buyer. This Agreement has been duly executed
and delivered by Buyer and constitutes the legal, valid, and binding obligation
of Buyer, enforceable against Buyer in accordance with its terms, except as the
enforceability of this Agreement may be affected by bankruptcy, insolvency, or
similar laws affecting creditors' rights generally and by judicial discretion in
the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents, the execution, delivery, and performance by Buyer of this Agreement
and the documents contemplated hereby (with or without the giving of notice, the
lapse of time, or both): (i) do not require the consent of any third party; (ii)
will not conflict with the Articles of Incorporation or Bylaws of Buyer; (iii)
will not conflict with, result in a breach of, or constitute a default under,
any law, judgment, order, injunction, decree, rule, regulation, or ruling of any
court or governmental instrumentality; or (iv) will not conflict with,
constitute grounds for termination of, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license, or permit to which
Buyer is a party or by which Buyer may be bound, such that Buyer could not
acquire or operate the Assets.
4.4 Broker. Neither Buyer nor any person acting on Buyer's behalf has
incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement.
4.5 Buyer Qualifications. Buyer is legally, financially and otherwise
qualified to be the licensee of, acquire, own and operate the Station under the
Communications Act of 1934, as now in effect, the Telecommunications Act of
1996, and the rules, regulations and policies of the FCC as now in effect.
Subject to obtaining a waiver of the FCC's one-to-a-market rule (47 C.F.R. P.
73.3555(c)), Buyer knows of no fact that would, under existing law and the
existing
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rules, regulations, policies and procedures of the FCC disqualify Buyer as an
assignee of the FCC Licenses or as the owner and operator of the Station.
4.6 Full Disclosure. No representation or warranty made by Buyer in
this Agreement or in any certificate, document, or other instrument furnished or
to be furnished by Buyer pursuant hereto contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
and required to make any statement made herein or therein not misleading.
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING
5.1 Generally. Seller agrees that, between the date of this Agreement
and the Closing Date, Seller shall operate the Station diligently in the
ordinary course of business in accordance with its past practices (except where
such conduct would conflict with the following covenants or with Seller's other
obligations under this Agreement), and in accordance with the other covenants in
this Section 5.
5.2 Compensation. Seller shall not increase the compensation, bonuses,
or other benefits payable or to be payable to any person employed in connection
with the conduct of the business or operations of the Station, except in
accordance with past practices.
5.3 Contracts. Seller will not, without the prior written consent of
Buyer, enter into any contract or commitment relating to the Station or the
Assets, or amend or terminate any Assumed Contract (or waive any material right
thereunder), or incur any obligation (including obligations relating to the
borrowing of money or the guaranteeing of indebtedness) that will be binding on
Buyer after Closing. Prior to the Closing Date, Seller shall deliver to Buyer a
list of all Contracts entered into between the date of this Agreement and the
Closing Date, together with copies of such Contracts.
5.4 Disposition of Assets. Seller shall not sell, assign, lease, or
otherwise transfer or dispose of any of the Assets, except where no longer used
or useful in the business or operations of the Station or in connection with the
acquisition of replacement property of equivalent kind and value.
5.5 Encumbrances. Seller shall not create, assume or permit to exist
any claim, liability, mortgage, lien, pledge, condition, charge, or encumbrance
of any nature whatsoever upon the Assets, except for (i) liens disclosed on
Schedule 3.5 and Schedule 3.6, which shall be removed on or prior to the Closing
Date, (ii) liens for current taxes not yet due and payable, and (iii) mechanics'
liens and other similar liens, which shall be removed on or prior to the Closing
Date.
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5.6 Licenses. With the exception of the ATV Rulemaking proceeding (as
defined in Section 7.1(e) hereof), Seller shall not cause or permit, by any act
or failure to act, any of the Licenses to expire or to be revoked, suspended, or
modified, or take any action that could cause the FCC or any other governmental
authority to institute proceedings for the suspension, revocation, or adverse
modification of any of the Licenses. Seller shall not fail to prosecute with due
diligence any applications to any governmental authority in connection with the
operation of the Station.
5.7 Rights. Seller shall not waive any right relating to the Station or
any of the Assets. Seller shall not take any action to intentionally cause any
cable system located within the Station's Area of Dominant Influence to refuse
to carry the Station's signal.
5.8 No Inconsistent Action. Seller shall not take any action that is
inconsistent with its obligations under this Agreement or that could hinder or
delay the consummation of the transactions contemplated by this Agreement.
5.9 Access to Information. Seller shall give Buyer and its authorized
representatives reasonable access to the Assets and to all other properties,
equipment, books, records, Contracts, and documents relating to the Station for
the purpose of audit and inspection.
5.10 Maintenance of Assets. Seller shall use its best efforts and take
all reasonable actions to maintain all of the Assets in good condition (ordinary
wear and tear excepted), and use, operate, and maintain all of the Assets in a
reasonable manner and in accordance with the terms of the FCC Licenses, all
rules and regulations of the FCC and generally accepted standards of good
engineering practice. Seller shall maintain inventories of spare parts and
expendable supplies at levels consistent with past practices. If any loss,
damage, impairment, confiscation, or condemnation of or to any of the Assets
occurs, other than any loss, damage or impairment resulting from actions taken
by Buyer pursuant to the Time Brokerage Agreement, Seller shall repair, replace,
or restore the Assets to their prior condition as represented in this Agreement
as soon thereafter as possible, and Seller shall use the proceeds of any claim
under any insurance policy solely to repair, replace, or restore any of the
Assets that are lost, damaged, impaired, or destroyed.
5.11 Insurance. Seller shall maintain the existing insurance policies
on the Station and the Assets through the Closing Date.
5.12 Consents. Seller shall use its best efforts to obtain the Consents
and the estoppel certificates described in Section 8.2(b), without any change in
the terms or conditions of any Contract or License that could be materially less
advantageous to the Station than those pertaining under the Contract or License
as in effect on the date of this Agreement; provided, however, that Seller's
failure to obtain any Consent or Estoppel Certificate shall not constitute a
material breach of this Agreement. Seller shall promptly advise Buyer of any
difficulties
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experienced in obtaining any of the Consents and of any conditions proposed,
considered, or requested for any of the Consents. Upon Buyer's request, Seller
shall cooperate with Buyer and use it best efforts to obtain from the lessors
under each Real Property lease such estoppel certificates and consents to the
collateral assignment of the lessee's interest under each such lease as Buyer's
lenders may reasonably request.
5.13 Books and Records. Seller shall maintain its books and records
relating to the Station in accordance with past practices.
5.14 Notification. Seller shall promptly notify Buyer in writing of any
unusual or material developments with respect to the business or operations of
the Station, and of any material change in any of the information contained in
Seller's representations and warranties contained in Section 3 of this
Agreement.
5.15 Compliance with Laws. Seller shall comply in all material respects
with all laws, rules, and regulations applicable or relating to the ownership
and operation of the Station.
5.16 Financing Leases. Seller will satisfy at or prior to Closing all
outstanding obligations under capital and financing leases with respect to any
of the Assets and obtain good title to the Assets leased by Seller pursuant to
those leases so that those Assets shall be transferred to Buyer at Closing free
of any interest of the lessors.
5.17 Programming. Seller shall not make any material changes in the
broadcast hours or in the percentages of types of programming broadcast by the
Station, or make any other material change in the Station's programming
policies, except such changes as in the good faith judgment of the Seller are
required by the public interest.
5.18 Preservation of Business. To the extent consistent with its
obligations under the Time Brokerage Agreement, Seller shall use its best
efforts to preserve the business and organization of the Station and use its
best efforts to keep available to the Station its present employees and the
Station's present relationships with suppliers and others having business
relations with it, to the end that the business and operations of the Station
shall be unimpaired at the Closing Date.
5.19 Collection of Accounts Receivable. Consistent with the terms of
the Time Brokerage Agreement, Seller shall collect the accounts receivable of
the Station only in the ordinary course consistent with its past practices and
will not take any action designed or likely to accelerate the collection of its
accounts receivable.
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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) Seller and Buyer shall promptly prepare an appropriate
application for the FCC Consent and shall file the application with the FCC
within ten (10) business days of the execution of this Agreement. The parties
shall prosecute the application with all reasonable diligence and otherwise use
their best efforts to obtain a grant of the application as expeditiously as
practicable. Each party agrees to comply with any condition imposed on it by the
FCC Consent, except that no party shall be required to comply with a condition
if (1) the condition was imposed on it as the result of a circumstance the
existence of which does not constitute a breach by the party of any of its
representations, warranties, or covenants under this Agreement, and (2)
compliance with the condition would have a material adverse effect upon it.
Buyer and Seller shall oppose 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 exercise by either party of its rights under
Section 9.
6.2 Control of the Station. Prior to Closing, Buyer shall not, directly
or indirectly, control, supervise, direct, or attempt to control, supervise, or
direct, the operations of the Station; such operations, including complete
control and supervision of all of the Station programs, employees, and policies,
shall be the sole responsibility of Seller until the Closing; provided, however,
that Buyer shall have such rights and responsibilities as provided for in the
Time Brokerage Agreement.
6.3 Risk of Loss.
(a) The risk of any loss, damage, impairment, confiscation, or
condemnation of any of the Assets from any cause whatsoever shall be borne by
Seller at all times prior to the Closing.
(b) If any damage or destruction of the Assets or any other
event occurs, other than any damage or destruction of the Assets or any other
event resulting, in whole or in part, from Buyer's conduct or actions under the
Time Brokerage Agreement, which (i) causes the Station to cease broadcasting
operations for a period of seven or more days or (ii) prevents in any material
respect signal transmission by the Station in the normal and usual manner and
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Seller fails to restore or replace the Assets so that normal and usual
transmission is resumed within 30 days of the damage, destruction or other
event, Buyer, in its sole discretion, may (x) terminate this Agreement forthwith
without any further obligations hereunder upon written notice to Seller or (y)
proceed to consummate the transaction contemplated by this Agreement and
complete the restoration and replacement of the Assets after the Closing Date,
in which event Seller shall deliver to Buyer all insurance proceeds received in
connection with such damage, destruction or other event.
6.4 Confidentiality. Except as necessary for the consummation of the
transaction contemplated by this Agreement, including Buyer's obtaining of
financing related hereto, and except as and to the extent required by law,
including, without limitation, disclosure requirements of federal or state
securities laws and the rules and regulations of securities markets, each party
will keep confidential any information obtained from the other party in
connection with the transactions contemplated by this Agreement. 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.
6.5 Environmental Audit. Buyer may, at its option and expense, retain
an environmental consultant to be selected by Buyer to perform a Phase I
environmental survey of the properties of the Station and such survey shall be
completed within 30 days from the date hereof. If the survey discloses any
material environmental hazard or material possibility of future liability for
environmental damages or clean-up costs, Buyer shall so notify Seller no later
than 40 days from the date hereof.
6.6 Engineering Study. Buyer may, at its option and expense, retain an
engineering firm to conduct a proof of performance study of the Station and to
prepare a report on the Station's compliance with customary engineering
practices and all applicable FCC rules, regulations, prescribed practices, and
technical standards and such study and report shall be completed within 30 days
from the date hereof. If the survey discloses any material deficiencies in the
operations or equipment of the Station, Buyer shall so notify Seller no later
than 40 days from the date hereof.
6.7 Cooperation. Buyer and Seller shall cooperate fully with each other
and their respective counsel and accountants in connection with any actions
required to be taken as part of their respective obligations under this
Agreement, and Buyer and Seller shall execute such other documents as may be
necessary and desirable to the implementation and consummation of this
Agreement, and otherwise use their best efforts to consummate the transaction
contemplated hereby and to fulfill their obligations under this Agreement.
Notwithstanding the foregoing, Buyer shall have no obligation (i) to expend
funds to obtain any of the Consents or (ii) to agree to any adverse change in
any License or Assumed Contract to obtain a Consent required with respect
thereto.
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6.8 Sales Tax Filings. Through the Closing Date, Seller shall continue
to file Florida sales tax returns with respect to the Station, if and to the
extent such returns are required to be filed by applicable law, and shall
concurrently deliver copies of all such returns to Buyer.
6.9 Access to Books and Records. Seller shall provide Buyer reasonable
access and the right to copy for a period of three years from the Closing Date
any books and records relating to the assets that are not included in the
Assets. Buyer shall provide Seller reasonable access and the right to copy for a
period of three years from the Closing Date any books and records relating to
the Assets.
6.10 Appraisal. Buyer and Seller agree to allocate the Purchase Price
for tax and recording purposes in accordance with an appraisal to be completed
with 90 days of Closing and to be conducted by an appraisal firm selected and
paid for by Buyer with experience in the valuation and appraisal of television
station assets.
6.11 Buyer Conduct. Buyer shall take no action, or fail to take any
required action, that would disqualify Buyer from being the licensee of the
Station under the Communications Act of 1934, as now in effect, the
Telecommunications Act of 1996, and the rules, regulations and policies of the
FCC as now in effect or that would require Buyer to seek a waiver of the rules
in addition to that specified in Section 4.5 hereof. Buyer, in programming the
Station pursuant to the Time Brokerage Agreement, shall not cause or permit, by
any act or failure to act, any of the Licenses to expire or to be revoked,
suspended, or modified, or take any action that could cause the FCC or any other
governmental authority to institute proceedings for the suspension, revocation,
or adverse modification of any of the Licenses.
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT CLOSING
7.1 Conditions to Obligations of Buyer. All obligations of Buyer at the
Closing are subject at Buyer's option to the fulfillment prior to or at the
Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations and
warranties of Seller 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. 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.
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(c) Consents. All Consents designated as "material" on
Schedule 3.3 shall have been obtained and delivered to Buyer without any adverse
change in the terms or conditions of any agreement or any governmental license,
permit, or other authorization.
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Buyer of any conditions other than the waiver
requested pursuant to Section 4.5 hereof, that need not be complied with by
Buyer under Section 6.1 hereof, 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) Governmental Authorizations. Seller shall be the holder of
all Licenses and, other than as a result of any decision or order issued in
connection with the FCC rulemaking identified as In The Matter of Advanced
Television Systems, MM Docket No. 87-268, and any subsequent FCC or court
proceeding relating to such rulemaking (the "ATV Rulemaking"), there shall not
have been any modification of any License that could have a material adverse
effect on the Station or the conduct of its business and operations. No
proceeding shall be pending the effect of which could be to revoke, cancel, fail
to renew, suspend, or modify adversely any License.
(f) Deliveries. Seller shall have made or stand willing to
make all the deliveries to Buyer set forth in Section 8.2.
(g) Adverse Change. Subject to Section 6.3 hereof, between the
date of this Agreement and the Closing Date, there shall have been no material
adverse change in the assets, or properties of the Station, including any
damage, destruction, or loss affecting any assets used or useful in the conduct
of the business of the Station.
(h) Time Brokerage Agreement. The Time Brokerage Agreement
shall be in full force and effect, and Seller shall have complied, in all
material respects, with its obligations thereunder.
(i) Note. There shall exist no Event of Default as defined in
the Note.
7.2 Conditions to Obligations of Seller. All obligations of Seller at
the Closing are subject at Seller's option to the fulfillment prior to or at the
Closing Date of each of the following conditions:
(a) Representations and Warranties. All 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.
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(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 set forth in Section 8.3.
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Seller of any conditions that need not be complied
with by Seller under Section 6.1 hereof and Buyer shall have complied with any
conditions imposed on it by the FCC Consent.
(e) Time Brokerage Agreement. The Time Brokerage Agreement
shall be in full force and effect, and Buyer shall have complied, in all
material respects, with its obligations thereunder.
SECTION 8. CLOSING AND CLOSING DELIVERIES
8.1 Closing.
(a) Closing Date. The Closing shall take place at 10:00 a.m.
on a date, to be set by Buyer on at least ten days' written notice to Seller,
that is (1) not earlier than the first business day after the FCC Consent is
effective, and (2) not later than ten business days following the date upon
which the FCC Consent has become a Final Order.
(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 Seller.
8.2 Deliveries by Seller. Prior to or on the Closing Date, Seller shall
deliver to Buyer the following, in form and substance reasonably satisfactory to
Buyer and its counsel:
(a) Transfer Documents. Duly executed warranty bills of sale,
deeds, motor vehicle titles, assignments, and other transfer documents which
shall be sufficient to vest good and marketable title to the Assets in the name
of Buyer, free and clear of all mortgages, liens, restrictions, encumbrances,
claims, and obligations except for liens for current taxes not yet due and
payable;
(b) Estoppel Certificates. Estoppel certificates of the
lessors of all leasehold and subleasehold interests included in the Real
Property substantially in the form of Schedule 8.2(b) hereof;
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(c) Consents. An executed copy of any instrument evidencing
receipt of any Consent;
(d) Officer's Certificate. A certificate, dated as of the
Closing Date, executed on behalf of Seller by its Chairman or President,
certifying (1) that the representations and warranties of Seller contained in
this Agreement are true and complete in all material respects as of the Closing
Date as though made on and as of that date; and (2) that Seller 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;
(e) Licenses, Contracts, Business Records, Etc. Copies of all
Licenses, Assumed Contracts, blueprints, schematics, working drawings, plans,
projections, engineering records, and all files and records used by Seller in
connection with its operations;
(f) Accounts Receivable. A complete and accurate list of the
Station's Accounts Receivable as of a date no more than five business days prior
to the Closing Date, including, with respect to each of the Accounts Receivable,
the account number, date of issuance, name and address of account debtor,
aggregate amount, and balance due;
(g) Opinion of Counsel. An Opinion of Seller's counsel dated
as of the Closing Date, substantially in the form of Schedule 8.2(g) hereto; and
(h) Lenders Certificates. Such certificates and confirmations
to Buyer's senior lenders executed by Seller as Buyer may reasonably request in
connection with obtaining financing for the performance of its payment
obligations hereunder.
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer shall
deliver to Seller the following, in form and substance reasonably satisfactory
to Seller and its counsel:
(a) Purchase Price. The cash portion of the Purchase Price, as
adjusted pursuant to Section 2.3(a), the executed original of the Note marked
"canceled" and such other documents as may be required to release or terminate
any security interests held by Buyer in any of the assets described in Section
2.2;
(b) Assumption Agreements. Appropriate assumption agreements
pursuant to which Buyer shall assume and undertake to perform Seller's
obligations under the Licenses and Assumed Contracts as provided in Section 2.5;
(c) Officer's Certificate. A certificate, dated as of the
Closing Date, executed on behalf of Buyer by its Secretary, certifying (1) that
the representations and warranties of Buyer contained in this Agreement are true
and complete in all material respects as of the
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Closing Date as though made on and as of that date, and (2) that Buyer has in
all material respects performed and complied with all of its obligations,
covenants, and agreements set forth in this Agreement to be performed and
complied with on or prior to the Closing Date; and
(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) Affiliation Agreement. The Affiliation Agreement, duly
executed by Buyer.
(f) Tax, Lien and Judgment Searches. Results of a search for
tax, lien and judgment filings in the Secretary of State's records for the State
of Florida as well as the records of those counties in Florida in which any of
the Assets are located.
SECTION 9. TERMINATION
9.1 Termination by Seller. This Agreement may be terminated by Seller,
if Seller is not then in material default, upon written notice to Buyer, upon
the occurrence of any of the following:
(a) Conditions. If, on the date that would otherwise be the
Closing Date, Seller shall have notified Buyer in writing that one or more of
the conditions precedent to the obligations of Seller set forth in this
Agreement have not been satisfied or waived in writing by Seller and such
condition or conditions shall not have been satisfied by Buyer or waived in
writing by Seller within fifteen days following such notice.
(b) Judgments. If, on the date that would otherwise be the
Closing Date, Seller shall have notified Buyer that there is in effect any
judgment, decree, or order that would prevent or make unlawful the Closing and
such judgment, decree or order shall not have been satisfied by Buyer within
fifteen (15) days following such notice.
(c) Upset Date. If the Closing shall not have occurred by
[April 1, 1998].
9.2 Termination by Buyer. This Agreement may be terminated by Buyer, if
Buyer is not then in material default, upon written notice to Seller, upon the
occurrence of any of the following:
(a) Conditions. If, on the date that would otherwise be the
Closing Date, Buyer shall have notified Seller in writing that one or more of
the conditions precedent to the obligations of Buyer set forth in this Agreement
have not been satisfied or waived in writing by Buyer and such condition or
conditions shall not have been satisfied by Seller or waived in writing by Buyer
within fifteen (15) days following such notice.
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(b) Judgments. If, on the date that would otherwise be the
Closing Date, Buyer shall have notified Seller that there is in effect any
judgment, decree, or order that would prevent or make unlawful the Closing and
such judgment, decree or order shall not have been satisfied by Seller within
fifteen (15) days following such notice.
(c) Upset Date. If the Closing shall not have occurred by
[April 1, 1998].
(d) Interruption of Service. If any event shall have occurred
that prevented signal transmission of the Station in the normal and usual manner
for a continuous period of seven days unless such interruption of service is
due, in whole or in part, to actions of Buyer under the Time Brokerage
Agreement.
9.3 Rights on Termination. Subject to Section 9.4, if this Agreement is
terminated pursuant to Section 9.1 or Section 9.2 and neither party is in
material breach of any provision of this Agreement, the parties hereto shall
have no liability to each other as a result of such termination. In addition to
its rights under Section 9.4, if this Agreement is terminated by Buyer due to
Seller's material breach of its obligations hereunder, Buyer shall have all
rights and remedies available at law or equity. If this Agreement is terminated
by Seller due to Buyer's material breach of its obligations hereunder, the
payment to Seller of the expenses (including reasonable attorneys' fees and
costs) incurred by Seller in the negotiation and preparation of this Agreement
and the performance by Seller of its obligations hereunder shall constitute full
payment and the exclusive remedy for any damages suffered by Seller by reason of
Buyer's material breach.
9.4 Survival of Option. In the event that the transactions contemplated
by this Agreement are not consummated for any reason whatsoever, the Option
shall nevertheless remain exercisable by Buyer until the expiration of the
Option as provided in the Option Agreement, and Buyer may at any time, and from
time to time, prior to such expiration again exercise the Option as set forth in
the Option Agreement and, upon such exercise, Buyer and Seller shall enter into
an Asset Purchase Agreement that is, subject to the requirement in the following
sentence, substantially identical to this Agreement and thereafter diligently
proceed to perform their obligations thereunder. In the event that the
transactions contemplated by this Agreement are not consummated because a
provision of this Agreement is determined by the FCC to violate any FCC rule or
policy, Buyer and Seller shall negotiate in good faith to revise any such
provision to ensure compliance with such rule or policy while preserving, to the
extent possible, the intent of the parties as embodied in the provision to be
revised.
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SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; CERTAIN
REMEDIES
10.1 Representations and Warranties. All representations and warranties
contained in this Agreement shall be deemed continuing representations and
warranties and shall survive the Closing for a period of twelve 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 Seller shall affect Buyer's
right to rely on any representation or warranty made by Seller or relieve Seller
of any obligations under this Agreement as the result of a breach of any of its
representations and warranties.
10.2 Indemnification by Seller. Notwithstanding the Closing, and
regardless of any investigation made at any time by or on behalf of Buyer or any
information Buyer may have, Seller 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 Seller contained in this Agreement or in any certificate, document, or
instrument delivered to Buyer under this Agreement.
(b) Any and all obligations of Seller not assumed by Buyer
pursuant to this Agreement, including any liabilities arising at any time under
any Contract not included in the Assumed Contracts.
(c) Subject to Section 10.3(d) hereof, any and all losses,
liabilities, or damages resulting from the operation or ownership of the Station
prior to the Closing, including any liabilities arising under the Licenses or
the Assumed Contracts which relate to events occurring prior the Closing Date.
(d) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
10.3 Indemnification by Buyer. Notwithstanding the Closing, and
regardless of any investigation made at any time by or on behalf of Seller or
any information Seller may have, Buyer hereby agrees, subject to the limitation
in the last sentence of Section 9.3, to indemnify and hold Seller harmless
against and with respect to, and shall reimburse Seller 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 in this
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Agreement or in any certificate, document, or instrument delivered to Seller
under this Agreement.
(b) Any and all obligations of Seller assumed by Buyer
pursuant to this Agreement.
(c) Any and all losses, liabilities or damages resulting from
the operation or ownership of the Station on and after the Closing.
(d) Any and all losses, liabilities or damages resulting from
any action taken by Buyer or its employees and agents with respect to the
Station, or any failure by Buyer or its employees and agents to take any action
with respect to the Station, in connection with the performance by Buyer of its
obligations under the Time Brokerage Agreement, including, without limitation,
any and all losses, liabilities or damages resulting from (i) violations by
Buyer or its employees and agents of the Communications Act of 1934, as amended,
or any rule, regulation or policy of the FCC, (ii) slander, defamation or other
claims relating to programming provided by Buyer for broadcast on the Station,
and (iii) Buyer's broadcast and sale of advertising time on the Station.
(e) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
10.4 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 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/or its authorized representatives the information relied upon by the
Claimant to substantiate the claim. If the Claimant and the Indemnifying Party
agree at or prior to the expiration of the thirty-day period (or any mutually
agreed upon extension thereof) to the validity and amount of such claim, the
Indemnifying Party shall immediately pay to the Claimant the full amount of the
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claim. If the Claimant and the Indemnifying Party do not agree within the
thirty-day period (or any mutually agreed upon extension thereof), the Claimant
may seek appropriate remedy at law or equity or under the arbitration provisions
of this Agreement, as applicable.
(c) With respect to any claim by a third party as to which the
Claimant is entitled to indemnification under this Agreement, the Indemnifying
Party shall have the right at its own expense, to participate in or assume
control of the defense of such claim, and the Claimant shall cooperate fully
with the Indemnifying Party, subject to reimbursement for 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 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 indemnification rights provided in Sections 10.2 and
10.3 shall extend to the shareholders, directors, officers, employees, and
representatives of any Claimant although for the purpose of the procedures set
forth in this Section 10.4, any indemnification claims by such parties shall be
made by and through the Claimant.
(f) Notwithstanding any provision in this Agreement to the
contrary, Seller shall not be required to indemnify Buyer for any losses,
liabilities or damages relating to or arising from (i) a chose in action of
Seller relating to the Station unless Buyer promptly notifies Seller of such
chose in action, and thereupon Seller shall have sole responsibility for the
prosecution of such chose in action or (ii) any environmental or engineering
defect or other circumstance that is described in the environmental survey or
engineering study referred to in Sections 6.6 and 6.7 hereof, respectively, if
and to the extent such defect or circumstance is not a violation of Seller's
representations, warranties or covenants hereunder.
10.5 Specific Performance. The parties recognize that if Seller
breaches this Agreement and refuses to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled, 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, Seller shall waive the defense that there is an adequate remedy
at law.
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10.6 Attorneys' Fees. In the event of a default by either party which
results in a lawsuit or other proceeding for any remedy available under this
Agreement, the prevailing party shall be entitled to reimbursement from the
other party of its reasonable legal fees and expenses.
SECTION 11. MISCELLANEOUS
11.1 Fees and Expenses. Any federal, state, or local sales or transfer
tax arising in connection with the conveyance of the Assets by Seller to Buyer
pursuant to this Agreement shall be paid by the party upon whom such tax is
imposed by law. 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, except that Buyer and Seller
shall each pay one-half of all filing fees required by the FCC, and each party
shall be responsible for all fees or commissions payable to any finder, broker,
advisor, or similar person retained by or on behalf of such party.
11.2 Arbitration. Except as otherwise provided to the contrary below,
any dispute arising out of or related to this Agreement that Seller and Buyer
are unable to resolve by themselves shall be settled by arbitration in
Washington, D.C. by a panel of three (3) neutral arbitrators who shall be
selected in accordance with the procedures set forth in the commercial
arbitration rules of the American Arbitration Association. The persons selected
as arbitrators shall have prior experience in the broadcasting industry but 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 of the American Arbitration
Association. The written decision of a majority of the arbitrators shall be
final and binding on Seller and Buyer. The costs and expenses of the arbitration
proceeding shall be assessed between Seller and Buyer in a manner to be decided
by a majority of the arbitrators, and the assessment shall be set forth in the
decision and award of the arbitrators. Judgment on the award, if it is not paid
within thirty days, may be entered in any court having jurisdiction over the
matter. No action at law or suit in equity based upon any claim arising out of
or related to this Agreement shall be instituted in any court by Seller or Buyer
against the other except (i) an action to compel arbitration pursuant to this
Section, (ii) an action to enforce the award of the arbitration panel rendered
in accordance with this Section, or (iii) a suit for specific performance
pursuant to Section 10.5.
11.3 Notices. All notices, demands, and requests required or permitted
to be given under the provisions of this Agreement shall be (a) in writing, (b)
delivered by personal delivery, or sent by commercial delivery service or
registered or certified mail, return receipt requested, (c) deemed to have been
given on the date of personal delivery or the date set forth in the records of
the delivery service or on the return receipt, and (d) addressed as follows:
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If to Seller: Xx. Xxxxx X. Xxxx
The Christian Network, Inc.
00000 00xx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
With a copy to: Xxxx X. Xxxxxxxx, Esq.
Xxxxx, Xxxxxxxx & Tannenwald
0000 Xxxxx Xxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
If to Buyer: Xx. Xxxxxx X. Xxxxxx
Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
With a copy to: Xxxx X. Xxxxx, Xx., Esq.
Dow, Xxxxxx & Xxxxxxxxx
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
or to any other or additional persons and addresses as the parties may from time
to time designate in a writing delivered in accordance with this Section 11.3.
11.4 Benefit and Binding Effect. Neither party hereto may assign this
Agreement without the prior written consent of the other party hereto; provided,
however, that Buyer may assign its rights and obligations under this Agreement,
in whole or in part, to one or more subsidiaries or commonly controlled
affiliates of Buyer, prior to the filing of the FCC application, without seeking
or obtaining Seller's prior approval, provided that such assignment shall not
constitute a release of Buyer's obligations hereunder, and Buyer may
collaterally assign its rights and interests hereunder to its lenders without
seeking or obtaining Seller's prior approval. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
11.5 Further Assurances. The parties shall take any actions and execute
any other documents that may be necessary or desirable to the implementation and
consummation of this Agreement, including, in the case of Seller, any additional
bills of sale, deeds, or other transfer documents that, 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.
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11.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED, AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT REGARD TO
THE CHOICE OF LAW PROVISIONS THEREOF).
11.7 Headings. The headings in this Agreement are included for ease of
reference only and shall not control or affect the meaning or construction of
the provisions of this Agreement.
11.8 Gender and Number. Words used in this Agreement, regardless of the
gender and number specifically used, shall be deemed and construed to include
any other gender, masculine, feminine, or neuter, and any other number, singular
or plural, as the context requires.
11.9 Entire Agreement. This Agreement, the schedules, hereto, and all
documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between Buyer and Seller with respect to the subject matter hereof. This
Agreement supersedes all prior negotiations between the parties and cannot be
amended, supplemented, or changed except by an agreement in writing that makes
specific reference to this Agreement and which is signed by the party against
which enforcement of any such amendment, supplement, or modification is sought.
11.10 Waiver of Compliance; Consents. Except as otherwise provided in
this Agreement, any failure of any of the parties to comply with any obligation,
representation, warranty, covenant, agreement, or condition herein may be waived
by the party entitled to the benefits thereof only by a written instrument
signed by the party granting such waiver, but such waiver or failure to insist
upon strict compliance with such obligation, representation, warranty, covenant,
agreement, or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires or
permits consent by or on behalf of any party hereto, such consent shall be given
in writing in a manner consistent with the requirements for a waiver of
compliance as set forth in this Section 11.10.
11.11 Press Release. Prior to the Closing, neither party shall publish
any press release, make any other public announcement or otherwise communicate
with any news media concerning this Agreement or the transactions contemplated
hereby without the prior written consent of the other party; provided, however,
that nothing contained herein shall prevent either party from promptly making
all filings with governmental authorities as may, in its judgement be required
or advisable in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby.
11.12 Consent to Jurisdiction and Service of Process. All judicial
proceedings brought against Buyer or Seller arising out of or relating to this
Agreement may be brought in any state or federal court of competent jurisdiction
in the State of Florida and, by execution and delivery of this Agreement, Buyer
and Seller each accepts for itself and in connection with its properties,
generally and unconditionally, the non-exclusive jurisdiction of the aforesaid
courts and waives
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any defense of forum non conveniens and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Agreement. Seller designates
and appoints Xxxxx X. Xxxx, and Buyer designates and appoints Xxxxxxx X. Xxxxxx,
and such other persons as may hereafter be selected by Buyer or Seller, as its
respective agent to receive on its behalf service of all process in any such
proceedings in any such court, such service being hereby acknowledged by Buyer
and Seller to be effective and binding service in every respect. A copy of any
such process so served shall be mailed by registered mail to Buyer or Seller at
its address provided in Section 11.3, except that, unless otherwise provided by
applicable law, any failure to mail such copy shall not affect the validity of
service of process. If any agent appointed by Buyer or Seller refuses to accept
service, Buyer and Seller hereby agree that service upon it by mail shall
constitute sufficient notice. Nothing herein shall affect the right to serve
process in any other manner permitted by law or shall limit the right of either
party to bring proceedings against the other in the courts of any other
jurisdiction.
11.13 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, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
XXXXXX COMMUNICATIONS OF
MIAMI-35, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
CHANNEL 35 OF MIAMI, INC.
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Chairman
