Document/Exhibit Description Pages Size
1: 10-Q Paxson Communications, Inc. Form 10-Q 21 142K
13: EX-10.100 Asset Purchase Agreement 40 175K
14: EX-10.101 Asset Purchase Agreement 41 177K
15: EX-10.102 Asset Purchase Agreement 45 190K
16: EX-10.103 Construction Agreement 9 37K
17: EX-10.104 Loan Agreement 29 120K
18: EX-10.105 Asset Purchase Agreement 44 184K
19: EX-10.106 Asset Purchase Agreement 42 176K
20: EX-10.107 Agreement and Plan of Merger 34 110K
21: EX-10.107.01 First Amendment to Agreement and Plan of Merger 3 17K
22: EX-10.108 Asset Purchase Agreement 41 174K
23: EX-10.109 Option Agreement 9 35K
24: EX-10.110 Subordinated Note 13 50K
25: EX-10.111 Asset Purchase Agreement 40 142K
26: EX-10.112 Asset Purchase Agreement 40 169K
27: EX-10.113 Time Brokerage Agreement 28 96K
28: EX-10.114 Purchase Agreement 17 63K
29: EX-10.115 Asset Purchase Agreement 32 138K
30: EX-10.116 Asset Purchase Agreement 32 148K
31: EX-10.117 Asset Purchase Agreement 32 144K
32: EX-10.118 Asset Purchase Agreement 33 147K
33: EX-10.119 Time Brokerage Agreement 16 70K
34: EX-10.120 Loan Agreement 28 109K
35: EX-10.121 Second Amendment to Asset Purchase Agreement 6 22K
36: EX-10.122 Asset Purchase Agreement 41 180K
37: EX-10.123 Asset Purchase Agreement 94 303K
38: EX-10.124 Loan Agreement 52 170K
39: EX-10.125 Time Brokerage Agreement 28 98K
40: EX-10.126 Option Agreement 18 64K
2: EX-10.89 Amended as Restated Promissory Note 6 25K
3: EX-10.90 First Anemdment to Loan Agreement 2 15K
4: EX-10.91 Asset Purchase Agreement 15 73K
5: EX-10.92 Asset Purchase Agreement 41 174K
6: EX-10.93 The Brokerage Agreement 29 97K
7: EX-10.94 Asset Purchase Agreement 38 173K
8: EX-10.95 First Amendment 2 15K
9: EX-10.96 Promissory Note 4 21K
10: EX-10.97 Stock Purchase Agreement 42 199K
11: EX-10.98 Asset Purchase Agreement 42 178K
12: EX-10.99 Asset Purchase Agreement 42 177K
41: EX-27 Financial Data Schedule (For SEC Use Only) 1 12K
EXHIBIT 10.123
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ASSET EXCHANGE AGREEMENT
BY AND BETWEEN
PAXSON COMMUNICATIONS OF
BIRMINGHAM-44, INC.
AND
WNAL-TV, INC.
FOR
TELEVISION STATION WNAL-TV
GADSDEN, ALABAMA
* * *
AUGUST 7, 1996
===============================================================================
TABLE OF CONTENTS
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Asset Value" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assumed Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Birmingham ADI" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"First Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"First Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Second Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Second Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Consents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FAA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Consent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Final Order" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Intangibles" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Loan Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Modification Application" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Real Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Exchangor's Accounts Receivable" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Tangible Personal Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Time Brokerage Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"To the best of Exchangor's knowledge" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2 EXCHANGE AND TRANSFER OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1 Agreement to Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 Excluded Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3 Asset Value Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4 Payment of Exchange Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.5 Assumption of Liabilities and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
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SECTION 3 REPRESENTATIONS AND WARRANTIES OF EXCHANGOR . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1 Organization, Standing, and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.4 Governmental Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.5 Title to and Condition of Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.6 Title to and Condition of Tangible Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.7 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.8 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.9 Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.10 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.11 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.12 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.13 Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.14 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.15 Claims and Legal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.16 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.17 [Reserved]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.18 Conduct of Business in Ordinary Course . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.19 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4 REPRESENTATIONS AND WARRANTIES OF RECIPIENT . . . . . . . . . . . . . . . . . . . . . . . . 15
4.1 Organization, Standing, and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.4 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.5 Recipient Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5 OPERATIONS OF THE STATION PRIOR TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . 16
5.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.2 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.3 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.4 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.5 Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.6 Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.7 Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.8 No Inconsistent Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.9 Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17
5.10 Maintenance of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.11 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.12 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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5.13 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.14 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.15 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.16 Financing Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.17 Preservation of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6 SPECIAL COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.1 FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.2 Control of the Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.3 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.5 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.6 Bulk Sales Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.7 Title Insurance and Surveys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.8 Sales Tax Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.9 Access to Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.10 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.11 Cable Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.12 Allocation of Asset Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.13 Section 1031 Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 7 CONDITIONS TO OBLIGATIONS OF RECIPIENT AND
EXCHANGOR AT THE FIRST CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.1 Conditions to Obligations of Recipient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.2 Conditions to Obligations of Exchangor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 8 FIRST CLOSING AND CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.1 First Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.2 Deliveries by Exchangor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.3 Deliveries by Recipient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 9 CONDITIONS AND OBLIGATIONS OF RECIPIENT AND
EXCHANGOR AT THE SECOND CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.1 Conditions to Obligations of Recipient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.2 Conditions to Obligations of Exchangor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10 SECOND CLOSING AND CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.1 Second Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.2 Deliveries by Exchangor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
10.3 Deliveries by Recipient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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SECTION 11 TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.1 Termination by Exchangor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.2 Termination by Recipient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.3 Rights on Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
12.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
12.2 Indemnification by Exchangor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
12.3 Indemnification by Recipient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
12.4 Procedure for Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
12.5 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
12.6 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 13 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
13.1 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
13.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
13.3 Benefit and Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
13.4 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
13.5 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
13.6 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
13.7 Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
13.8 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
13.9 Waiver of Compliance; Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
13.10 Press Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
13.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
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LIST OF SCHEDULES
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Schedule 2.2 -- Excluded Property
Schedule 3.3 -- Consents
Schedule 3.4 -- Licenses
Schedule 3.5 -- Real Property
Schedule 3.6 -- Tangible Personal Property
Schedule 3.7 -- Contracts
Schedule 3.9 -- Intangibles
Schedule 3.11 -- Insurance Policies
Schedule 3.13 -- Employee Matters
Schedule 3.15 -- Claims
Schedule 3.17 -- Compliance Matters
Schedule 8.2(g) -- Form of Opinions of Exchangor's Counsel
(First Closing)
Schedule 8.3(d) -- Form of Opinions of Recipient's Counsel
(First Closing)
Schedule 10.2(d) -- Form of Opinions of Exchangor's Counsel
(Second Closing)
Schedule 10.3(d) -- Form of Opinions of Recipient's Counsel
(Second Closing)
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ASSET EXCHANGE AGREEMENT
This ASSET EXCHANGE AGREEMENT is dated as of the 7th day of August,
1996, by and between Paxson Communications of Birmingham-44, Inc., a Florida
corporation ("Recipient"), and WNAL-TV, Inc., an Alabama corporation
("Exchangor").
RECITALS
A. Exchangor is the licensee of and owns and operates television
station WNAL-TV, Gadsden, Alabama (the "Station") pursuant to licenses issued
by the Federal Communications Commission ("FCC").
B. Exchangor desires to sell, and Recipient wishes to acquire,
substantially all the assets that are owned by Exchangor and are used or useful
in the business or operations of the Station, for the price and on the terms
and conditions set forth in this Agreement.
AGREEMENTS
In consideration of the above recitals and of the mutual agreements
and covenants contained in this Agreement, Recipient and Exchangor, 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:
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Recipient under this Agreement, as specified in Section 2.1.
"Asset Value" means the Asset Value specified in Section 2.3.
"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7
that are specifically designated as Contracts that will be assumed by Recipient
at Closing, (ii) any Contracts entered into by Exchangor between the date of
this Agreement and the Closing Date that Recipient agrees in writing to assume,
and (iii) time sales contracts entered into by Exchangor in compliance with
Section 5.3.
"Birmingham ADI" means the Birmingham, Alabama Area of Dominant
Influence as defined in the 1991-1992 Area of Dominant Influence Market Guide
published by the Arbitron Co.
"First Closing" means the consummation of the exchange and transfer of
the Assets pursuant to this Agreement in accordance with the provisions of
Section 8.
"First Closing Date" means the date on which the First Closing occurs,
as determined pursuant to Section 8.
"Second Closing" means the consummation of the exchange and transfer
of the Assets pursuant to this Agreement in accordance with the provisions of
Section 10.
"Second Closing Date" means the date on which the Second Closing
occurs, as determined pursuant to Section 10.
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to
Recipient 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 Exchangor is a party or which are binding upon
Exchangor 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 Exchangor between the date of this
Agreement and the Second Closing Date.
"FAA" means the Federal Aviation Administration.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the
assignment of the FCC Licenses to Recipient as contemplated by this Agreement.
"FCC Licenses" means all Licenses issued by the FCC to Exchangor 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 under its rules and regulations
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
-2-
property rights and interests (and any goodwill associated with any of the
foregoing) applied for, issued to, or owned by Exchangor or under which
Exchangor 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.
"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 to Exchangor 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.
"Loan Agreement" means the Loan Agreement dated as of August 7, 1996
by and between Exchangor and Recipient.
"LTEC" means Lawyers Title Exchange Company, a Delaware corporation,
which may serve, at the request of Exchangor, as a "qualified intermediary" as
contemplated by Section 1031 of the Code and the regulations promulgated
thereunder, with respect to the transfer of the assets to Recipient at Closing.
"Material Contracts" means Assumed Contracts designated on Schedule
3.7 as constituting material contracts.
"Modification Application" means the construction permit application
filed by Exchangor with the FCC on September 7, 1995 as amended on July 23,
1996 (FCC File No. BPCT-950907KE) seeking authority to relocate the Station's
transmitter to a site at 33 53' 49"/86 30' 22" or, if and only if the pending
construction permit is not approved by the FCC or the FAA, local or state
approvals cannot all be obtained, or the land owner refuses to perform, then
Exchangor may seek approval of the FCC, FAA and local and state authorities for
authorizations to construct modified facilities or facilities on a different
site for the Station in either case that would provide predicted City Grade
service to the entire city of Gadsden and predicted Grade A service to the
entire city of Birmingham (both coverages as determined in accordance with the
FCC's rules and regulations).
"Real Property" means all real property and interests in real
property, including fee estates, leaseholds and subleaseholds, exchange
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.
-3-
"Exchangor's Accounts Receivable" means the rights of Exchangor to
payment for the transfer of advertising time run on the Station by Exchangor as
of 11:59 p.m., local time, on the day prior to the Time Brokerage Agreement.
"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 owned by
Exchangor and 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 Agreement between Exchangor and
Recipient dated August 7, 1996 whereby Recipient shall provide programming for
the Station effective September 2, 1996.
"To the best of Exchangor's knowledge" means to the actual knowledge
of Anthony J. Fant after reasonable inquiry, including where appropriate, the
inquiry of the Station Manager.
SECTION 2 EXCHANGE AND TRANSFER OF ASSETS
2.1 Agreement to Transfer and Exchange. Subject to the terms and
conditions set forth in this Agreement, Exchangor hereby agrees to transfer,
and deliver to Recipient on the Closing Date, and Recipient agrees to acquire
all of the tangible and intangible assets owned by Exchangor and 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 liens
for current taxes not yet due and payable and liens that are removed at Closing
by assignment of a portion of the proceeds thereof), including the following:
(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles and all intangible assets of
Exchangor relating to the Station that are not specifically included within the
Intangibles, including the goodwill of the Station, if any;
-4-
(f) All of Exchangor'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; and
(g) All books and records relating to the business or
operations of the Station, (except as otherwise provided in Section 2.2(b))
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) Exchangor's cash on hand as of the Closing and all
other cash in any of Exchangor'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 Exchangor is required by
law to retain and that pertain to Exchangor's corporate organization and all
books and records that are required by Exchangor to prepare its tax returns or
to substantiate information reported to federal and state governmental
authorities;
(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) The Exchangor's Accounts Receivable;
2.3 Asset Value Price. The Asset Value for the Assets ("Asset
Value") shall be Ten Million Dollars ($10,000,000), adjusted as provided below:
(a) Prorations. The Asset Value shall be increased or
decreased as required to effectuate the proration of expenses prepaid or
deferred by Exchangor after giving effect to the application of payments made
under the Time Brokerage Agreement. All expenses prepaid or delivered by
Exchangor after giving effect to the application of payments made under the
Time Brokerage Agreement arising from the operation of the Station, including
business and license fees, utility charges and deposits, real and personal
property taxes and assessments levied against the Assets, property and
equipment rentals, applicable copyright or other fees, transfers and service
charges, taxes (except for taxes arising from the transfer of the Assets under
this Agreement), and similar prepaid and deferred items, shall be prorated
between Recipient and Exchangor in accordance with the principle that Exchangor
shall be responsible for all expenses, costs, and liabilities allocable to the
period prior to the
- 5 -
Second Closing Date, and Recipient shall be responsible for all expenses,
costs, and obligations allocable to the period on and after the Second Closing
Date. Notwithstanding the preceding sentence, there shall be no adjustment
for, and Exchangor 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 Recipient in accordance with Section 2.5.
(b) Manner of Determining Adjustments. Any adjustments
will, insofar as feasible, be determined and paid on the Second Closing Date,
with final settlement and payment by the appropriate party occurring no later
than ninety (90) days after the Second Closing Date or such other date as the
parties shall mutually agree upon.
2.4 Payment of Exchange Price. The Asset Value shall be paid by
Recipient to Exchangor as follows: At the First Closing, Recipient shall pay
to Exchangor or to LTEC (with any "boot" being paid to Exchangor) upon the
assignment by Exchangor to LTEC of Exchangor's rights hereunder in accordance
with Section 6.13 hereof, the sum of Three Million Dollars. At the Second
Closing, Recipient shall pay to Exchangor the sum of Seven Million Dollars,
with the adjustment, if any, pursuant to Section 2.3 above, or to LTEC (with
any "boot" being paid to Exchangor) upon the assignment by Exchangor to LTEC of
Exchangor's rights hereunder in accordance with Section 6.13 hereof; each of
the payments required to be made pursuant to the First Closing and the Second
Closing shall be made, by wire transfer of same-day funds pursuant to wire
instructions which shall be delivered by Exchangor to Recipient at least one
day prior to the each of the First Closing Date and Second Closing Date.
2.5 Assumption of Liabilities and Obligations. As of the First
and Second Closing Dates, Recipient shall assume and undertake to pay,
discharge, and perform all obligations and liabilities of Exchangor under the
Licenses and the Assumed Contracts insofar as they relate to the time on and
after that respective Closing Date, and arise out of events related to
Recipient's ownership of the Assets or its operation of the Station on or after
that respective Closing Date. Recipient shall not assume any other obligations
or liabilities of Exchangor, 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
First Closing Date, (iii) any claims or pending litigation or proceedings
relating to the operation of the Station prior to the First Closing Date, (iv)
any obligations or liabilities arising under capitalized leases or other
financing agreements, (v) any obligations or liabilities arising under
agreements entered into other than in the ordinary course of business, (vi) any
obligations or liabilities of Exchangor under any employee pension, retirement,
or other benefit plans or collective bargaining agreements, (vii) any
obligation to any employee of the Station for severance benefits, vacation
time, or sick leave accrued prior to the First Closing Date, or (viii) any
obligations or liabilities caused by, arising out of, or resulting from any
-6-
action or omission of Exchangor prior to either Closing Date, and all such
obligations and liabilities shall remain and be the obligations and liabilities
solely of Exchangor.
SECTION 3 REPRESENTATIONS AND WARRANTIES OF EXCHANGOR
Exchangor represents and warrants to Recipient as follows:
3.1 Organization, Standing, and Authority. Exchangor is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Alabama. Exchangor 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
thereby, and to perform and comply with all of the terms, covenants, and
conditions to be performed and complied with by Exchangor hereunder and
thereunder. Exchangor 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 Exchangor has been duly
authorized by all necessary actions on the part of Exchangor. This Agreement
has been duly executed and delivered by Exchangor and constitutes the legal,
valid, and binding obligation of Exchangor, enforceable against it in
accordance with its terms except as such enforceability may be affected by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally,
or 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 and thereby (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 By-Laws of Exchangor; (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 Exchangor is a
party or by which Exchangor may be bound, other than such conflicts,
terminations, breaches, defaults or accelerations that would not (x) have a
material adverse effect on the Assets, business or operations of Exchangor and
(y) delay or prevent the Closing; and (v) will not create any claim, liability,
mortgage, lien, pledge, condition, charge, or encumbrance of any nature
whatsoever upon any of the Assets.
-7-
3.4 Governmental Licenses. Schedule 3.4 includes a true and
complete list of the Licenses. Exchangor has delivered to Recipient true and
complete copies of the Licenses (including any amendments and other
modifications thereto). The Licenses have been validly issued, and Exchangor
is the authorized legal holder thereof. The Licenses listed on Schedule 3.4
comprise all of the 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. Exchangor has no reason
to believe that any of the Licenses would not be renewed by the FCC or other
granting authority in the ordinary course. Schedule 3.4 lists all cable
television systems located within the Birmingham ADI that currently carry the
Station's signal.
3.5 Title to and Condition of Real Property. Schedule 3.5
contains a complete and accurate description of all the Real Property and
Exchangor's interests therein (including street address, legal description,
owner, and use and the location of all improvements thereon). The Real
Property listed on Schedule 3.5 comprises all real property interests necessary
to conduct the business and operations of the Station as now conducted.
Exchangor 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 Exchangor fulfills its
obligations under the lease therefor, Exchangor has enforceable rights to
nondisturbance and quiet enjoyment, and no third party holds any interest in
the leased premises with the right to foreclose upon Exchangor'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. Exchangor has delivered to Recipient true and complete
copies of all deeds pertaining to the Real Property. All Real Property
(including the improvements thereon) to the best knowledge of Exchangor, (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 with all applicable building or zoning codes and the
regulations of any governmental authority having jurisdiction and Exchangor has
not received any notice (written or otherwise) that the Exchangor does not have
full legal and practical access to the Real Property. All easements,
rights-of-way, and real property licenses have been properly recorded in the
appropriate public recording
-8-
offices except for those the failure of which to be recorded will not
adversely affect the full legal and practical access to the property.
3.6 Title to and Condition of Tangible Personal Property.
Schedule 3.6 lists or includes invoices for 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, Exchangor owns and has good title to each item of
Tangible Personal Property, and none of the Tangible Personal Property owned by
Exchangor is subject to any security interest, mortgage, pledge, conditional
transfer agreement, or other lien or encumbrance, except for liens for current
taxes not yet due and payable. 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) is in good condition and repair consistent with its present use,
and (ii) will permit the Station and any unit auxiliaries thereto to operate in
accordance with the terms of the FCC Licenses and the rules and regulations of
the FCC, and with all other applicable federal, state, and local statutes,
ordinances, rules, and regulations.
3.7 Contracts. Schedule 3.7 is a true and complete list of all
Contracts. Exchangor has delivered to Recipient 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), and a
schedule summarizing Exchangor's obligations under trade and barter agreements
relating to the Station. Other than the Contracts listed on Schedule 3.7,
Exchangor 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 Exchangor
or, to the best of Exchangor's knowledge, any other party thereto or any event
that, after notice or lapse of time or both, could constitute a default.
Exchangor 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, Exchangor has full legal power and authority to assign
its rights under the Assumed Contracts to Recipient 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 and the other Consents described in Schedule 3.3, no consent, approval,
permit, or authorization of, or declaration to or filing with any governmental
or regulatory authority, or any other third party is required (i) to consummate
this Agreement and the
-9-
transactions contemplated hereby, including, without limitation, the assignment
and transfer of the Assets to Recipient, (ii) to permit Exchangor to assign or
transfer the Assets to Recipient, or (iii) to enable Recipient to conduct the
business and operations of the Station in essentially the same manner as such
business and operations are now conducted.
3.9 Intangibles. 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. Exchangor has delivered to Recipient
copies of all documents establishing or evidencing all Intangibles. To the
best of Exchangor's knowledge, Exchangor 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 best of Exchangor's knowledge, 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 Financial Statements. Exchangor has furnished Recipient with
true and complete copies of its (i) financial report dated May 31, 1996,
including Exchangor's balance sheet as of May 31, 1996, and Exchangor's
statement of income for the ten months ended May 31, 1995 (collectively, the
"Financial Statements") as well as audited financial statements of The Fant
Broadcasting Companies for the two most recent fiscal years thereof. The
Financial Statements have been prepared from the books and records of
Exchangor, have been prepared in accordance with generally accepted accounting
principles consistently applied and maintained throughout the periods
indicated, accurately reflect the books, records, and accounts of the Station
(which books, records, and accounts are complete and correct), are complete and
correct in all material respects, and present fairly the financial condition of
the Station as at their respective dates and the results of operations for the
periods then ended. None of the Financial Statements understates the true
costs and expenses of conducting the business or operations of the Station,
fails to disclose any material contingent liabilities, or inflates the revenues
of the Station.
3.11 Insurance. Schedule 3.11 is a true and complete list of all
insurance policies of Exchangor that insure any part of the Assets or the
business of the Station. All policies of insurance listed in Schedule 3.11 are
in full force and effect. The insurance policies listed in Schedule 3.11 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.
3.12 Reports. All returns, reports, and statements that the
Station is currently required to file with the FCC or with any other
governmental agency have been filed,
-10-
and all reporting requirements of the FCC and other governmental authorities
having jurisdiction over Exchangor and the Station have been complied with.
All of such returns, reports, and statements are substantially complete and
correct as filed. Exchangor has timely paid to the FCC all annual regulatory
fees payable with respect to the FCC Licenses. 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.
3.13 Personnel.
(a) Employees and Compensation. Schedule 3.13 contains a
true and complete list of all employees of the Station including their job
description, date of hire, salary, and date and amount of last salary raise.
Schedule 3.13 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 Exchangor with respect to any person now or formerly employed by Exchangor
at the Station, including pension or thrift plans, individual or supplemental
pension or accrued compensation arrangements, contributions to hospitalization
or other health or life insurance programs, incentive plans, bonus
arrangements, and vacation, sick leave, disability and termination arrangements
or policies, including workers' compensation policies, and a description of all
fixed or contingent liabilities or obligations of Exchangor with respect to any
person now or formerly employed at the Station or any person now or formerly
retained as an independent contractor at the Station. At Recipient's request,
Exchangor will furnish Recipient with true and complete copies of all summary
plan descriptions of the written plans and arrangements listed in Schedule
3.13, and with descriptions, in writing, of the unwritten plans and
arrangements listed in Schedule 3.13. At Recipient's request, Exchangor will
furnish Recipient 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 3.13. All employee benefits and welfare
plans or arrangements listed in Schedule 3.13 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. Exchangor 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 best of Exchangor's knowledge, threatened, and Exchangor
possesses no knowledge of any facts which could give rise to any such action,
suit or claim.
(b) Labor Relations. Exchangor is not a party to or
subject to any collective bargaining agreements with respect to the Station.
Exchangor has no written
-11-
or oral contracts of employment with any employee of the Station, other than
those listed in Schedule 3.7. Except as set forth in Schedule 3.15, no
controversies, disputes, or proceedings are pending or, to the best of
Exchangor's knowledge, threatened, between it and any employee (singly or
collectively) of the Station. No labor union or other collective bargaining
unit represents or claims to represent any of the employees of the Station. To
the best of Exchangor'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. Exchangor has no liability of any kind
to or in respect of any employee benefit plan, including withdrawal liability
under Section 4201 of ERISA. Exchangor has not incurred any accumulated
funding deficiency within the meaning of ERISA or Section 4971 of the Internal
Revenue Code of 1986, as amended (the "Code"). Exchangor has not failed to
make any required contributions to any employee benefit plan. The Pension
Benefit Guaranty Corporation has not asserted that Exchangor 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 Exchangor as a result
of a failure to comply with ERISA.
3.14 Taxes. Exchangor 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 are due, or has set aside on its books adequate reserves
(segregated to the extent required by generally accepted accounting principles)
with respect thereto. Exchangor has not been notified of any governmental
investigations or other legal, administrative, or tax proceedings pursuant to
which Exchangor is or could be made liable for any taxes, penalties, interest,
or other charges, the liability for which could extend to Recipient as
transferee of the business of the Station, and no event has occurred that could
impose on Recipient any transferee liability for any taxes, penalties, or
interest due or to become due from Exchangor.
3.15 Claims and Legal Actions. Except as listed on Schedule 3.15,
and except for any FCC rulemaking proceedings generally affecting the
broadcasting industry, 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 best of Exchangor's knowledge, threatened, against or relating to Exchangor
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 Exchangor
know of any basis for the same. In particular, but without limiting the
generality of the foregoing, except as listed on Schedule 3.15 there are no
applications, complaints or proceedings pending or, to the best of Exchangor's
knowledge, threatened (i) before the FCC relating to the business or operations
of the Station other
-12-
than rule making proceedings which affect the broadcasting 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.
3.16 Environmental Matters.
(a) Exchangor has complied in all material respects with
all laws, rules, and regulations of all federal, state, and local governments
(and all agencies thereof) concerning the environment, public health and
safety, and employee health and safety, and no charge, complaint, action, suit,
proceeding, hearing, investigation, claim, demand, or notice has been filed or,
to the best of Exchangor's knowledge, commenced against Exchangor 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 Exchangor's knowledge, Exchangor has
no liability relating to its ownership and operation of the Station (and there
is no basis related to the past or present operations, properties, or
facilities of Exchangor for any present or future charge, complaint, action,
suit, proceeding, hearing, investigation, claim, or demand against Exchangor
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.
(c) To the best of Exchangor's knowledge, Exchangor has
no liability relating to its ownership and operation of the Station (and
Exchangor 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 Exchangor 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 Exchangor's knowledge, Exchangor has
no liability relating to its ownership and operation of the Station (and there
is no basis for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand against Exchangor 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.
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(e) To the best of Exchangor's knowledge, Exchangor has
no liability relating to its ownership and operation of the Station (and
Exchangor 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 Exchangor giving rise to any such liability) for
any illness or personal injury to any employee.
(f) To the best of Exchangor's knowledge, in connection
with its ownership or operation of the Station, Exchangor 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.
3.17 [Reserved].
3,18 Conduct of Business in Ordinary Course. Since May 31, 1996,
Exchangor has conducted the business and operations of the Station only in the
ordinary course and, subject to actions taken in connection with the Station's
CBS affiliation, has not:
(a) Suffered any material adverse change in the business,
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 other than is disclosed on Schedule 3.18;
(b) Other than as disclosed in Schedule 3.13, made any
material increase in compensation payable or to become payable to any of the
employees of the Station, or any bonus payment made or promised to any employee
of the Station, or any material change in personnel policies, employee
benefits, or other compensation arrangements affecting the employees of the
Station;
(c) Made any transfer, 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;
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(d) Canceled any debts owed to or claims held by
Exchangor with respect to the Station, except inthe normal and usual course of
business;
(e) 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
(f) 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.
3.19 Full Disclosure. No representation or warranty made by
Exchangor in this Agreement or in the Schedules to this Agreement or any
certificate furnished or to be furnished by Exchangor at Closing contains or
will contain any untrue statement of a material fact, or omits or will omit to
state any material fact required to make any statement made herein or therein
not misleading in any such case that was knowingly or willingly made or
omitted, as the case may be, by Exchangor (provided that this Section 3.19
shall not be applicable as to the Financial Statements).
SECTION 4 REPRESENTATIONS AND WARRANTIES OF RECIPIENT
Recipient represents and warrants to Exchangor as follows:
4.1 Organization, Standing, and Authority. Recipient is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Florida and at Closing will be duly qualified to conduct
business as a foreign corporation in the State of Alabama. Recipient has all
requisite power and authority to execute and deliver this Agreement and the
Escrow Agreement and the documents contemplated hereby and thereby, and to
perform and comply with all of the terms, covenants, and conditions to be
performed and complied with by Recipient hereunder and thereunder.
4.2 Authorization and Binding Obligation. The execution,
delivery, and performance of this Agreement by Recipient has been duly
authorized by all necessary actions on the part of Recipient. This Agreement
has been duly executed and delivered by Recipient and constitute the legal,
valid, and binding obligations of Recipient, enforceable against Recipient in
accordance with their respective terms except as such enforceability 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 Recipient of this
Agreement and the documents contemplated hereby and thereby (with or without
the giving of notice, the
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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
Recipient; (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 Recipient is a party or by which Recipient may be bound, such
that Recipient could not acquire or operate the Assets.
4.4 Full Disclosure. No representation or warranty made by
Recipient in this Agreement or in any certificate, document, or other
instrument furnished or to be furnished by Recipient pursuant hereto contains
or will contain any untrue statement of a material fact, or omits or will omit
to state any material fact required to make any statement made herein or
therein not misleading.
4.5 Recipient Qualifications. Recipient 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, and the rules,
regulations and policies of the FCC as now in effect. Recipient knows of no
fact that would, under existing law and the existing rules, regulations,
policies and procedures of the FCC disqualify Recipient as an assignee of the
FCC Licenses or as the owner and operator of the Station.
SECTION 5 OPERATIONS OF THE STATION PRIOR TO CLOSING
5.1 Generally. Exchangor agrees that, between the date of this
Agreement and the Second Closing Date, Exchangor 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, with Exchangor's other obligations under this Agreement or with the
terms of the Time Brokerage Agreement) and in accordance with the other
covenants in this Section 5.
5.2 Compensation. Exchangor 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 or as disclosed in writing to
Recipient by Exchangor.
5.3 Contracts. Exchangor will not enter into any contract or
commitment relating to the Station or the Assets, or amend or terminate any
Contract (or waive any material right thereunder), or incur any obligation
(including obligations relating to the borrowing of money or the guaranteeing
of indebtedness) that will be binding on Recipient after the First Closing,
except for cash time sales agreements made in the ordinary course of business
or contracts relating to the performance of the CBS
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affiliation agreement; provided, however, Exchangor shall decline to renew or
extend any programming contracts where it can do so without penalty or other
cost. Prior to the First Closing Date, Exchangor shall deliver to Recipient a
list of all Contracts entered into between the date of this Agreement and the
First Closing Date that will be binding on Recipient after the First Closing,
together with copies of such Contracts.
5.4 Disposition of Assets. Exchangor 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. Exchangor 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 First 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 First Closing Date.
5.6 Licenses. Exchangor 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 would cause the FCC or any other governmental
authority to institute proceedings for the suspension, revocation, or adverse
modification of any of the Licenses. Exchangor 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. Exchangor shall not waive any right relating to the
Station or any of the Assets.
5.8 No Inconsistent Action. Subject to Exchangor's obligations
under Section 5.15 hereof, Exchangor 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. Exchangor shall give Recipient and its
counsel, accountants, engineers, and other 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, and will furnish or cause to be furnished to Recipient or
its authorized representatives all information with respect to the affairs and
business of the Station that Recipient may reasonably request (including any
financial reports and operations reports produced with respect to the affairs
and business of the Station). Without limiting the generality of the
foregoing, Exchangor shall give Recipient and its counsel, accountants and
other authorized representatives reasonable access to Exchangor's financial
records and
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Exchangor's employees, counsel, accountants and other representatives for the
purpose of preparing and auditing such financial statements as Recipient
determines, in its sole judgment, are required or advisable to comply with
federal or state securities laws and the rules and regulations of securities
markets as a result of the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
5.10 Maintenance of Assets. Subject to the Time Brokerage
Agreement, Exchangor 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. Exchangor 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,
Exchangor shall repair, replace, or restore the Assets to their prior condition
as represented in this Agreement as soon thereafter as possible, and Exchangor
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. Exchangor shall maintain the existing insurance
policies on the Station and the Assets as contemplated by the Time Brokerage
Agreement.
5.12 Consents. Exchangor 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 Assumed Contract or License that could
be less advantageous to the Station than those pertaining under the Assumed
Contract or License as in effect on the date of this Agreement. Exchangor
shall promptly advise Recipient of any difficulties experienced in obtaining
any of the Consents and of any conditions proposed, considered, or requested
for any of the Consents. Upon Recipient's request, Exchangor shall cooperate
with Recipient 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 Recipient's senior
lenders may request.
5.13 Books and Records. Exchangor shall maintain its books and
records relating to the Station in accordance with past practices.
5.14 Notification. Exchangor shall promptly notify Recipient in
writing of any unusual or material developments with respect to the business or
operations of the Station.
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5.15 Compliance with Laws. Exchangor 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. Exchangor will satisfy at or prior to the
First 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
Exchangor pursuant to those leases so that those Assets shall be transferred to
Recipient at the First Closing free of any interest of the lessors.
5.17 Preservation of Business. Subject to the Time Brokerage
Agreement, and any actions of Exchangor in winding up the Station's news
operations, Exchangor 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 to preserve the audience of the Station and
the Station's present relationships with suppliers, advertisers, and others
having business relations with it, to the end that the business, operations,
and prospects of the Station shall be unimpaired at the First Closing Date.
SECTION 6 SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC Consent.
(a) The assignment of the FCC Licenses in connection with
the exchange and transfer of the Assets pursuant to this Agreement shall be
subject to the prior consent and approval of the FCC.
(b) Exchangor and Recipient shall promptly prepare an
appropriate application for the FCC Consent and shall file the application with
the FCC no later than September 30, 1996, although the application may be filed
sooner upon the agreement of Seller and Buyer. 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. Recipient and
Exchangor shall oppose any requests for reconsideration or judicial review of
the FCC Consent. If the Second 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.
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6.2 Control of the Station. Prior to the Second Closing,
Recipient 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
Exchangor until the Second Closing, provided, however, that Recipient shall be
entitled to provide programming to the Station pursuant to the Time Brokerage
Agreement.
6.3 Risk of Loss. The risk of any loss, damage, impairment,
confiscation, or condemnation of any of the Assets from any cause whatsoever
shall be borne by Exchangor at all times prior to the First Closing; provided,
however, that any such loss or damage that is caused by Recipient's actions
while the Time Brokerage Agreement is in effect shall not relieve Recipient of
its obligations to acquire the Assets in accordance with the terms hereof.
6.4 Confidentiality. Except as necessary for the consummation of
the transaction contemplated by this Agreement, including Recipient'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 the such party from the other party in connection with
the transactions contemplated by this Agreement.
6.5 Cooperation. Recipient and Exchangor 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 Recipient and Exchangor 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
transactions contemplated hereby and to fulfill their obligations under this
Agreement. Notwithstanding the foregoing, Recipient 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.
6.6 Bulk Sales Law. If applicable, the Bulk Sales law of the
State of Alabama shall be complied with by Exchangor. Any loss, liability,
obligation, or cost suffered by Exchangor or Recipient as the result of the
failure of Exchangor or Recipient to comply with the provisions of any bulk
transfer law applicable to the transfer of the Assets as contemplated by this
Agreement shall be borne by Exchangor.
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6.7 Title Insurance and Surveys.
(a) Title Insurance on Fee Property. With respect to
each parcel of Real Property that Exchangor owns, Exchangor will cooperate with
Recipient to enable Recipient to obtain at its own expense at or prior to
Closing, an ALTA Owner's Policy of Title Insurance Form B-1987 (or equivalent
policy acceptable to Recipient), issued by a title insurer satisfactory to
Recipient, in an amount equal to the fair market value of the property and any
improvements thereon (as reasonably determined by Recipient), insuring title to
such parcel to be in the name of Recipient as of the Closing, subject only to
liens or encumbrances expressly permitted by this Agreement.
(b) General Requirements as to Title Insurance Policies.
Each title insurance policy obtained and delivered to Recipient pursuant to
this Agreement shall (1) insure title to the Real Property described in the
policy and all recorded easements benefitting such Real Property, (2) contain
an "extended coverage endorsement" insuring over the general exceptions
customarily contained in title policies, (3) contain an ALTA Zoning Endorsement
3.1 (or equivalent), (4) contain an endorsement insuring that the Real Property
described in the policy is the same real estate shown in the survey delivered
with respect to such property, (5) contain an inflation endorsement, (6)
contain a "contiguity" endorsement with respect to any Real Property consisting
of more than one record parcel, and (7) not be subject to any survey exception
or any defect or encroachment disclosed by a survey delivered with respect to
the property.
(c) Surveys. With respect to each parcel of Real
Property, as to which a title insurance policy is to be procured pursuant to
this Agreement, Exchangor will cooperate with Recipient to enable Recipient to
procure at Recipient's expense, a current survey of the parcel, prepared by a
licensed surveyor and conforming to current ALTA Minimum Detail Requirements
for Land Title Surveys, disclosing the location of all improvements, easements,
party walls, sidewalks, roadways, utility lines, and other matters customarily
shown on such surveys, and showing access affirmatively to public streets and
roads.
6.8 Sales Tax Filings. Exchangor shall continue to file any
required Alabama sales tax returns with respect to the Station in accordance
with Exchangor's past practices and shall concurrently deliver copies of all
such returns to Recipient.
6.9 Access to Books and Records. Exchangor shall provide
Recipient access and the right to copy for a period of three years from the
Second Closing Date any books and records relating to the Assets but not
included in the Assets. Recipient shall provide Exchangor access and the right
to copy for a period of three years from the Second Closing Date any books and
records relating to the Assets that are included in the Assets.
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6.10 Broker. Recipient and Exchangor each represents and warrants
that neither it nor any person or entity acting on its behalf has incurred any
liability for any finders' or brokers' fees or commissions in connection with
the transactions contemplated by this Agreement, except that Exchangor shall be
solely responsible for any fees or commissions owing to Communications Equity
Associates, Inc.
6.11 Cable Proceedings. Exchangor shall provide Recipient with
copies of all pleadings, correspondence and other documents filed by all
parties in connection with any matters involving cable carriage as identified
in Schedule 3.15. Exchangor shall promptly provide Recipient with copies of
all pleadings, correspondence and other documents filed or received by
Exchangor following the date hereof in any matters required to be disclosed on
Schedule 3.15 and shall promptly advise Recipient of any material developments
in any matters required to be disclosed on Schedule 3.15. Exchangor shall
consult with Recipient prior to making the October 1, 1996 election regarding
must-carry/retransmission control for cable systems within the Birmingham ADI
and Exchangor shall not make any such election without Recipient's approval,
which shall not be unreasonably withheld.
6.12 Allocation of Asset Value. Exchangor and Recipient shall use
their good faith efforts to agree to an allocation of the Asset Value among the
Assets for purposes of Section 1060 of the Code and Temporary Treasury
Regulation Section 1.1060-1T. Subject to such agreement, Recipient and
Exchangor agree to use such allocation in filing as part of their respective
federal income tax returns, an initial asset acquisition statement and any
supplemental statements on Internal Revenue Service Form 8594 required by
Temporary Treasury Regulation Section 1.1060-1T.
6.13 Section 1031 Exchange. Subsequent to the date hereof,
Exchangor anticipates that it shall execute the Exchange Agreement with LTEC
(the "Exchange Agreement"). Subject to and contingent upon the execution of
such Exchange Agreement, Exchangor shall assign to LTEC immediately prior to
Closing, and LTEC shall assume, certain rights and obligations under this
Agreement in accordance with the terms of a written assignment and assumption
agreement between Exchangor and LTEC, with the consent of Recipient (the "LTEC
Assignment"). Specifically, the LTEC Assignment shall provide (i) that,
subject to and upon the consummation of this Agreement, LTEC shall have the
right to receive a portion of the Estimated Asset Value paid by the Recipient,
(ii) that to the extent that LTEC assumes any obligations of Exchangor under
this Agreement, Recipient shall be a third-party beneficiary of such
assumptions so that following such assumption LTEC will be responsible directly
to Recipient for the performance of such assumed obligations, (iii) that
Exchangor shall indemnify and hold Recipient harmless from any breach by LTEC
of its obligations under the LTEC Assignment of this Agreement, and (iv) such
other terms as shall be necessary to effect a like-kind exchange through use of
a "qualified intermediary" under
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Code Section 1031. Upon such assignment, the following provisions of this
Section 6.13 shall apply.
(a) Closing Deliveries. At Closing Exchangor shall
transfer the Assets to Recipient as the designee of LTEC and deliver to
Exchangor the closing deliveries provided for in Section 8.2 hereof, and
Exchangor shall deliver to Recipient the closing deliveries provided for in
Sections 8.3(b) through (f) hereof.
(b) Assignment of Rights upon Closing. Subsequent to the
Closing, LTEC shall reassign to Exchangor, and Exchangor shall reassume, any
rights or obligations hereunder relating to the post-Closing period, to the
extent that such rights or obligations shall have been assigned by Exchangor to
LTEC under the terms of the Exchange Agreement, except that, subject to the
consent of Recipient, LTEC shall retain the obligation to make any payments
required to be made by Exchangor under Section 2.4(b)(2) hereof. Specifically,
such reassignment shall provide that subsequent to Closing, Exchangor (and
Exchangor alone) shall hold Exchangor's indemnity rights under Section 10
hereof, hold and be entitled to enforce all rights of Exchangor hereunder
(provided, though, that with Recipient's consent, LTEC may retain the right to
receive any payments required to be made by Recipient under Section 2.4(b)(1)
hereof), and reassume all of Exchangor's obligations and liabilities hereunder
except, with Recipient's consent, LTEC's obligation to make any payments
required to be made by Exchangor under Section 2.4(b)(2) hereof.
6.14. Parent Guaranty. Paxson Communications Corporation, a
Delaware corporation, of which Recipient is a wholly-owned subsidiary, hereby
fully and unconditionally guarantees all obligations of Recipient hereunder.
SECTION 7 CONDITIONS TO OBLIGATIONS OF RECIPIENT AND
EXCHANGOR AT THE FIRST CLOSING
7.1 Conditions to Obligations of Recipient. All obligations of
Recipient at the First Closing are subject at Recipient's option to the
fulfillment prior to or at the First Closing Date of each of the following
conditions:
(a) Representations and Warranties. All representations
and warranties of Exchangor contained in this Agreement shall be true and
complete in all material respects at and as of the First Closing Date as though
made at and as of that time.
(b) Covenants and Conditions. Exchangor 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 First Closing Date.
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(c) Consents. All Consents (other than any consents for
contracts which are not designated Material Contracts on Schedule 3.7) shall
have been obtained and delivered to Recipient without any adverse change in the
terms or conditions of any agreement or any governmental license, permit, or
other authorization.
(d) Governmental Authorizations. Exchangor shall be the
holder of all Licenses and there shall not have been any modification of any
License that could have an adverse effect on the Station or the conduct of its
business and operations. The FCC shall not have initiated any proceeding the
effect of which would be reasonably likely to revoke, cancel, fail to renew,
suspend, or modify adversely any License.
(e) Modification Application. The FCC shall have granted
the Modification Application of Exchangor and Exchangor shall have obtained FAA
approval and all local and state zoning and building permits for a site meeting
the requirements of the Modification Application.
(f) Deliveries. Exchangor shall have made or stand
willing to make all the deliveries to Recipient set forth in Section 8.2.
(g) Adverse Change. Between the date of this Agreement
and the First Closing Date, there shall have been no material adverse change in
the business, 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) Agreements. The Exchangor is not in material default
under either the Time Brokerage Agreement or the Loan Agreement (taking into
account any applicable cure periods in those Agreements).
7.2 Conditions to Obligations of Exchangor. All obligations of
Exchangor at the First Closing are subject at Exchangor's option to the
fulfillment prior to or at the First Closing Date of each of the following
conditions:
(a) Representations and Warranties. All representations
and warranties of Recipient contained in this Agreement shall be true and
complete in all material respects at and as of the First Closing Date as though
made at and as of that time.
(b) Covenants and Conditions. Recipient 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 First Closing Date.
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(c) Deliveries. Recipient shall have made or stand
willing to make all the deliveries set forth in Section 8.3.
SECTION 8 FIRST CLOSING AND CLOSING DELIVERIES
8.1 First Closing.
(a) First Closing Date. The First Closing shall take
place at 10:00 a.m. on a date not earlier than September 3, 1996, to be set by
Recipient on at least five days' written notice to Exchangor, that is
reasonably acceptable to Exchangor and not later than ten business days
following the date upon which the conditions specified in Section 7.1(e) hereof
have been satisfied, unless Exchangor shall agree in writing to a later date.
(b) Closing Place. The First Closing shall be held at
the offices of Dow, Lohnes & Albertson, 1200 New Hampshire Ave., N.W.,
Washington, D.C. 20036, or any other place that is agreed upon by Recipient and
Exchangor.
8.2 Deliveries by Exchangor. Prior to or on the First Closing
Date, Exchangor shall deliver to Recipient the following, in form and substance
reasonably satisfactory to Recipient and its counsel:
(a) Transfer Documents. Duly executed warranty bills of
transfer, deeds, assignments, and other transfer documents which shall be
sufficient to vest good and marketable title to the Assets in the name of
Recipient, 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 and estoppel certificates of contracting parties to those Assumed
Contracts listed in Schedule 3.7 that are designated to indicate that estoppel
certificates are required under this paragraph;
(c) Consents. Photocopies of any instrument evidencing
receipt of any Consent;
(d) Certificate. A certificate, dated as of the First
Closing Date, executed on behalf of Exchangor by the President or any Vice
President of Exchangor's certifying (1) that the representations and warranties
of Exchangor contained in this Agreement are true and complete in all material
respects as of the First Closing Date as though made on and as of that date;
and (2) that Exchangor has in all material respects performed and complied with
all of its obligations, covenants, and agreements set forth
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in this Agreement to be performed and complied with on or prior to the First
Closing Date;
(e) Tax, Lien, and Judgment Searches. Results of a
search for tax, lien, and judgment filings in the Secretary of State's records
of the State of Alabama and in the records of those counties in Alabama in
which any of the Assets are located, such searches having been made no earlier
than fifteen days prior to the First Closing Date;
(f) Licenses, Contracts, Business Records, Etc. Copies
of all Assumed Contracts, blueprints, schematics, working drawings, plans,
projections, engineering records, and all files and records used by Exchangor
in connection with its operations;
(g) Opinion of Counsel. An Opinion or Opinions of
Exchangor's counsel dated as of the First Closing Date, substantially in the
form of Schedule 8.2(g) hereto; and
(h) Lenders Certificates. Such certificates and
confirmations to Recipient's senior lenders as Recipient may reasonably request
in connection with obtaining financing for the performance of its payment
obligations hereunder.
8.3 Deliveries by Recipient. Prior to or on the First Closing
Date, Recipient shall deliver to Exchangor the following, in form and substance
reasonably satisfactory to Exchangor and its counsel:
(a) Exchange Price. The Asset Value as provided in
Section 2.4;
(b) Assumption Agreements. Appropriate assumption
agreements pursuant to which Recipient shall assume and undertake to perform
Exchangor's obligations under the Assumed Contracts arising on or after the
First Closing Date;
(c) Certificate. A certificate, dated as of the Closing
Date, executed on behalf of Recipient by its President, certifying (1) that the
representations and warranties of Recipient contained in this Agreement are
true and complete in all material respects as of the First Closing Date as
though made on and as of that date, and (2) that Recipient has in all material
respects performed and complied with all of its obligations, covenants, and
agreements set forth in this Agreement to be performed and complied with on or
prior to the Closing Date;
(d) Opinion of Counsel. An opinion of Recipient's
counsel dated as of the First Closing Date, substantially in the form of
Schedule 8.3(d) hereto.
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(e) Lease. Appropriate lease agreements pursuant to
which Recipient shall lease to Exchangor the Tangible Personal Property and
Real Property necessary for the operation of the Station by Exchangor as
Licensee.
SECTION 9 CONDITIONS AND OBLIGATIONS OF RECIPIENT AND
EXCHANGOR AT THE SECOND CLOSING
9.1 Conditions to Obligations of Recipient. All obligations of
Recipient at the Second Closing are subject at Recipient's option to the
fulfillment prior to or at the Second Closing Date of each of the following
conditions:
(a) Representations and Warranties. All representations
and warranties of Exchangor contained in this Agreement shall be true and
complete in all material respects at and as of the Second Closing Date as
though made at and as of that time.
(b) Covenants and Conditions. Exchangor shall have
performed and complied in all material respects with all covenants, agreements,
and conditions required by this Agreement relating to the FCC Licenses to be
performed or complied with by it prior to or on the Second Closing Date.
(c) Consents. All Consents (other than any consents for
contracts that are not designated as Material Contracts on Schedule 3.7) shall
have been obtained and delivered to Recipient 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 Recipient of any conditions that need not be compiled
with be (a) Recipient under Section 6.1 hereof, Exchangor shall have compiled
with any conditions imposed on it by the FCC Consent, and the FCC Consent shall
have become a Final Order.
(e) Governmental Authorizations. Exchangor shall be the
holder of all Licenses and there shall not have been any modification of any
License that could have an 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. Exchangor shall have made or stand
willing to make all the deliveries to Recipient set forth in Section 10.2.
(g) Time Brokerage Agreement. The Exchangor shall not be
in default under the Time Brokerage Agreement.
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9.2 Conditions to Obligations of Exchangor. All obligations of
Exchangor at the Second Closing are subject at Exchangor's option to the
fulfillment prior to or at the Second Closing Date of each of the following
conditions:
(a) Representations and Warranties. All representations
and warranties of Recipient contained in this Agreement shall be true and
complete in all material respects at and as of the Second Closing Date as
though made at and as of that time.
(b) Covenants and Conditions. Recipient 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 Second Closing Date.
(c) Deliveries. Recipient shall have made or stand
willing to make all the deliveries set forth in Section 10.3.
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Exchangor of any conditions that need not be complied
with by Exchangor under Section 6.1 hereof and Recipient shall have complied
with any conditions imposed on it by the FCC.
SECTION 10 SECOND CLOSING AND CLOSING DELIVERIES
10.1 Second Closing.
(a) Second Closing Date. The Second Closing shall take
place at 10:00 a.m. on a date, to be set by Recipient on at least five days'
written notice to Exchangor, that is reasonably acceptable to Exchangor and (1)
not earlier than the first business day after the FCC Consent is granted, and
(2) not later than ten business days following the date upon which the FCC
Consent has become a Final Order. If Recipient fails to specify the date for
the Second Closing pursuant to the preceding sentence prior to the fifth
business day after the date upon which the FCC Consent becomes a Final Order,
the Second Closing shall take place on the tenth business day after the date
upon which the FCC Consent becomes a Final Order.
(b) Closing Place. The Second Closing shall be held at
the offices of Dow, Lohnes & Albertson, 1200 New Hampshire Ave., N.W.,
Washington, D.C. 20036, or any other place that is agreed upon by Recipient and
Exchangor.
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10.2 Deliveries by Exchangor. Prior to or on the Second Closing
Date, Exchangor shall deliver to Recipient the following, in form and substance
reasonably satisfactory to Recipient and its counsel:
(a) Transfer Documents. Duly executed assignments, which
shall be sufficient to vest good and marketable title to the Licenses in the
name of Recipient, free and clear of all mortgages, liens, restrictions,
encumbrances, claims, and obligations;
(b) Certificate. A certificate, dated as of the Second
Closing Date, executed on behalf of Exchangor by the President or any Vice
President of Exchangor's certifying (1) that the representations and warranties
of Exchangor contained in this Agreement are true and complete in all material
respects as of the Second Closing Date as though made on and as of that date;
and (2) that Exchangor 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 Second Closing Date;
(c) Licenses, Contracts, Business Records, Etc. Copies
of all Licenses, and all files and records used by Exchangor in connection with
its operations;
(d) Opinion of Counsel. An Opinion or Opinions of
Exchangor's counsel dated as of the Second Closing Date, substantially in the
form of Schedule 10.2(d`) hereto; and
(e) Lenders Certificates. Such certificates and
confirmations to Recipient's senior lenders as Recipient may reasonably request
in connection with obtaining financing for the performance of its payment
obligations hereunder.
10.3 Deliveries by Recipient. Prior to or on the Second Closing
Date, Recipient shall deliver to Exchangor the following, in form and substance
reasonably satisfactory to Exchangor and its counsel:
(a) Exchange Price. The Asset Value of Two Million
Dollars as provided in Section 2.4 subject to adjustments, if any, provided for
in Section 2.3;
(b) Officer's Certificate. A certificate, dated as of
the Second Closing Date, executed on behalf of Recipient by its President,
certifying (1) that the representations and warranties of Recipient contained
in this Agreement are true and complete in all material respects as of the
Second Closing Date as though made on and as of that date, and (2) that
Recipient 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 Second Closing Date;
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(c) Opinion of Counsel. An opinion of Recipient's
counsel dated as of the Second Closing Date, substantially in the form of
Schedule 10.3(d) hereto.
SECTION 11 TERMINATION
11.1 Termination by Exchangor. This Agreement may be terminated by
Exchangor and the exchange and transfer of the Station abandoned, if Exchangor
is not then in material default, upon written notice to Recipient, upon the
occurrence of any of the following:
(a) Conditions. If on the date that would otherwise be
the First or Second Closing Date any of the conditions precedent to the
obligations of Exchangor set forth in this Agreement have not been satisfied by
Recipient or waived in writing by Exchangor.
(b) Judgments. If there shall be in effect on the date
that would otherwise be the First or Second Closing Date any judgment, decree,
or order that would prevent or make unlawful the Closing.
(c) Upset Date. If the First and Second Closings shall
not both have occurred by February 28, 1998.
11.2 Termination by Recipient. This Agreement may be terminated by
Recipient and the exchange and transfer of the Station abandoned, if Recipient
is not then in material default, upon written notice to Exchangor, upon the
occurrence of any of the following:
(a) Conditions. If on the date that would otherwise be
the First or Second Closing Date any of the conditions precedent to the
obligations of Recipient set forth in this Agreement have not been satisfied by
Exchangor or waived in writing by Recipient.
(b) Judgments. If there shall be in effect on the date
that would otherwise be the First or Second Closing Date any judgment, decree,
or order that would prevent or make unlawful the Closing.
(c) Upset Date. If the First or Second Closings shall
not both have occurred by February 28, 1998.
11.3 Rights on Termination. If this Agreement is terminated prior
to the First Closing, pursuant to Section 11.1 or Section 11.2 and neither
party is in material breach of this Agreement, the parties hereto shall not
have any further liability to each other with respect to the exchange and
transfer of the Assets; provided, however, that in the
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event of such termination, Recipient and Exchangor shall continue to have the
rights and obligations pursuant to the Time Brokerage Agreement and the Loan
Agreement. If this Agreement is terminated by Exchangor due to Recipient's
material breach of this Agreement prior to the First Closing, then Exchangor
shall have all the rights and remedies available at law or equity, including
recourse against Recipient's parent company. If Exchangor is in material
breach of this Agreement prior to the First Closing, Recipient shall have all
rights and remedies provided for in Section 12.5 hereof.
If this Agreement is terminated pursuant to Section 11.1 or Section
11.2 prior to the Second Closing (but subsequent to the First Closing), and
neither party is in material breach of this Agreement, the parties hereto shall
not have any further liability with respect to the exchange and transfer of the
Assets, provided, however, that in the event of such termination, Recipient
shall sell to Exchangor and Exchangor shall acquire from Recipient, the Assets
exchanged by Recipient at the First Closing from Exchangor for the Asset Value
of Three Million Dollars ($3,000,000). In the event of such termination, the
Recipient and Exchangor shall continue to have the rights and obligations
pursuant to the Time Brokerage Agreement and the Loan Agreement. If this
Agreement is terminated by Exchangor prior to the Second Closing (but
subsequent to the First Closing) due to Recipient's material breach of this
Agreement, Exchangor shall have all the rights and remedies available at law or
equity. If Exchangor is in material breach of this Agreement prior to the
Second Closing (and subsequent to the First Closing), Recipient shall have all
rights and remedies available in law and equity as set forth in Section 12.5
hereof.
SECTION 12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES
12.1 Representations and Warranties. All representations and
warranties contained in this Agreement shall be deemed continuing
representations and warranties and shall survive the Closings for a period of
eighteen months after the First Closing and for a period of Twelve months after
the Second Closing. 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 Exchangor shall affect Recipient's right to rely on any
representation or warranty made by Exchangor or relieve Exchangor of any
obligations under this Agreement as the result of a breach of any of its
representations and warranties.
12.2 Indemnification by Exchangor. Notwithstanding the Closings,
regardless of any investigation made at any time by or on behalf of Recipient
or any information Recipient may have, but subject to the survival provisions
of Section 12.1 Exchangor
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hereby agrees to indemnify and hold Recipient harmless against and with respect
to, and shall reimburse Recipient for:
(a) Any and all losses, liabilities, or damages resulting
from any untrue representation, breach of warranty, or nonfulfillment of any
covenant by Exchangor contained in this Agreement or in any certificate,
document, or instrument delivered to Recipient under this Agreement.
(b) Any and all obligations of Exchangor not assumed by
Recipient pursuant to this Agreement, including any liabilities arising at any
time under any Contract not included in the Assumed Contracts.
(c) Any loss, liability, obligation, or cost resulting
from the failure of the parties to comply with the provisions of any bulk
transfer law applicable to the transfer of the Assets.
(d) Any and all losses, liabilities, or damages resulting
from the operation or ownership of the Station prior to the Closings, including
any liabilities arising under the Licenses or the Assumed Contracts which
relate to events occurring prior to the Closings Date.
(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; provided Recipient shall substantially
prevail in pursuing any such claim.
12.3 Indemnification by Recipient. Notwithstanding the Closings,
and regardless of any investigation made at any time by or on behalf of
Exchangor or any information Exchangor may have, but subject to the survival
provisions of Section 12.1, Recipient hereby agrees to indemnify and hold
Exchangor harmless against and with respect to, and shall reimburse Exchangor
for:
(a) Any and all losses, liabilities, or damages resulting
from any untrue representation, breach of warranty, or nonfulfillment of any
covenant by Recipient contained in this Agreement or in any certificate,
document, or instrument delivered to Exchangor under this Agreement.
(b) Any and all obligations of Exchangor assumed by
Recipient 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 Closings.
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(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, provided Exchangor shall substantially
prevail in pursuing any such claim.
12.4 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
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.
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(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 partners, 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.
12.5 Specific Performance. The parties recognize that if Exchangor
breaches this Agreement and refuses to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Recipient
for its injury. Recipient 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 Recipient to enforce this Agreement, Exchangor shall waive the defense that
there is an adequate remedy at law.
12.6 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.
12.7 Limitation. Neither Exchangor nor Recipient shall be required
to indemnify the other party under this Section 10, except to the extent that
the aggregate amount of all claims against the party exceeds One Hundred
Thousand Dollars ($100,000).
SECTION 13 MISCELLANEOUS
13.1 Fees and Expenses. Any federal, state, or local transfers or
transfer tax arising in connection with the conveyance of the Assets by
Exchangor to Recipient pursuant to this Agreement shall be paid by the party
upon which such tax is imposed by law. Recipient and Exchangor shall each pay
one-half of all fees required by the FCC in connection with the filing of
applications for the FCC Consent. Except as otherwise provided in this
Agreement, each party shall pay its own expenses incurred in connection with
the authorization, preparation, execution, and performance of this Agreement,
including all fees and expenses of counsel, accountants, agents, and
representatives, and each party shall be responsible for all fees or
commissions payable to any finder, broker, advisor, or similar person retained
by or on behalf of such party.
13.2 Notices. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall be (a) in
writing, (b) delivered by personal delivery, or sent by commercial delivery
service or registered or certified mail,
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return receipt requested, (c) deemed to have been given on the date of personal
delivery or the date set forth in the records of the delivery service or on the
return receipt, and (d) addressed as follows:
If to Exchangor: WNAL-TV, Inc.
Fant Broadcasting Company
Corporate Headquarters
One Independence Plaza, Suite 720
Birmingham, Alabama 35209
Attention: Mr. Anthony Fant
With a copy to: Michael A. King, Esq.
Brown & Wood, LLP
One World Trade Center
New York, New York 10048
If to Paxson: Paxson Communications of Birmingham-44, Inc.
601 Clearwater Park North
W. Palm Beach, FL 33401
Attention: Mr. Lowell W. Paxson
With a copy to: John R. Feore, Jr., Esq.
Dow, Lohnes & Albertson
A Professional Limited Liability Company
1200 New Hampshire Ave., N.W.
Suite 800
Washington, D.C. 20036
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
13.2.
13.3 Benefit and Binding Effect. Neither party hereto may assign
this Agreement without the prior written consent of the other party hereto;
provided, however, that Recipient may assign its rights and obligations under
this Agreement to one or more subsidiaries or commonly controlled affiliates of
Recipient or an entity qualified to hold the Station's FCC Licenses (provided,
however, that Recipient shall guarantee this assignee's performance under this
Agreement) without seeking or obtaining Exchangor's prior approval and
Recipient may collaterally assign its rights and interests hereunder to its
senior lenders without seeking or obtaining Exchangor's prior approval and
Exchangor may assign certain of its rights and obligations hereunder to a
"qualified intermediary" for purposes of Section 1031 of the Internal Revenue
Code without seeking or obtaining Recipient's prior approval. Upon any
permitted assignment
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by Recipient or Exchangor in accordance with this Section 13.3, all references
to"Recipient" herein shall be deemed to be references to Recipient's assignee
and all references to "Exchangor" herein shall be deemed to be references to
Exchangor's assignee, as the case may be. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
13.4 Further Assurances. The parties shall take any actions and
execute any other documents that may be necessary or desirable to the
implementation and consummation of this Agreement, including, in the case of
Exchangor, any additional bills of transfer, deeds, or other transfer documents
that, in the reasonable opinion of Recipient, may be necessary to ensure,
complete, and evidence the full and effective transfer of the Assets to
Recipient pursuant to this Agreement.
13.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED,
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF). THE PARTIES AGREE TO THE
EXCLUSIVE JURISDICTION AND VENUE OF THE STATE OR FEDERAL DISTRICT COURT FOR THE
DISTRICT INCLUDING JEFFERSON COUNTY, ALABAMA OR THE NORTHERN DISTRICT OF
ALABAMA.
13.6 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.
13.7 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.
13.8 Entire Agreement. This Agreement, the schedules, hereto, the
Loan Agreement and Time Brokerage Agreement and all documents, certificates,
and other documents to be delivered by the parties pursuant hereto,
collectively represent the entire understanding and agreement between Recipient
and Exchangor 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.
13.9 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
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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 13.9.
13.10 Press Release. Neither party shall publish any press release,
make any other public announcement or otherwise communicate with any news media
concerning this Agreement or the Time Brokerage Agreement or the transactions
contemplated hereby or thereby 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.
13.11 Counterparts. This Agreement may be signed in counterparts
with the same effect as if the signature on each counterpart were upon the same
instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Exchange Agreement as of the day and year first above written.
PAXSON COMMUNICATIONS OF WNAL-TV, INC.
BIRMINGHAM-44, INC.
By: /s/ James B. Bocock By: /s/ Anthony J. Fant
------------------------------ ----------------------------
Name: James B. Bocock Name: Anthony J. Fant
Title: President Title: President
For purposes of guarantying the performance
of Paxson Communications of Birmingham-44,
Inc., hereunder.
PAXSON COMMUNICATIONS CORPORATION
By: /s/ James B. Bocock
---------------------------------
Name: James B. Bocock
Title: President
SCHEDULE 2.2
Excluded Property
Schedule 2.2 -- Excluded Property
Prints in General Manager's Office: framed map, four animal prints, three
horse prints, two telescope prints, and one polo print
Globe in General Manager's office
Antique books (9) and clock in reception area
Framed horse prints (2), leather desk pad, and antique books (3), located in
Sales Manager's office
Marble top vanity and framed prints (2) in upstairs bathroom
Framed parrot print
Cox Furniture, including Partner's desk, located at One Independence Plaza,
Birmington, AL
Airplane Piper N1277T and Rebuilt Engine for N1277T
One Zeos Computer, purchased in 2-15-90 (described as a Zero computer on
schedule 3.6)
1982 Mercedes automobile
Table, chairs, paintings (2), chicken of wood and screen in Station's kitchen
Chinese screen in lobby
Rolled rug (stored in Sales Manager's office)
Map, hat, magnifying glass, and personal table pieces
Personal belongings of Anthony Fant
SCHEDULE 3.3
Consents
Schedule 3.3 -- Contracts Requiring Consent for Assignment
1. Agreement relating to Real Estate
Alabama Power Company Non-exclusive Lease, dated August, 1993,
for tower and antenna site
Alabama Power Company Lease, dated July 1, 1995
Tom A. Carden Building Lease, dated November 1, 1992,
office space and broadcasting facilities, as
extended on July 1, 1996
Chateau Apartments Rental apartment
LB Chemical Company Warehouse\storage area
2. General Contracts and Agreements
Associated Press AP NewsCenter 96-98
AP NewsPower 96-98
GraphicsBank 96-98
ASCAP Blanket License Fee 1996
Broadcast Music, Inc. Blanket License Fee 1996
Center Capital Corporation Avid AirPlay and Media Composer
CBS Affiliation Agreement, Newspath Agreement,
ServiceMark License Agreement
FOX (1) Affiliation Agreement
Luckie and Company Public Relations Firm
NAB Member of National Association of Broadcasters
Network Music License renewed
Nielsen Media Research Index Service Agreement 94-99
Petry, Inc. Representation Agreement 94-99
SESAC Performance License Fees 1996
Software Systems, Inc. Summit television system 95-98
UPS Network service 95-96
WB Communications (1) Affiliation Agreement
Xerox Xerox 5028 96-97
3. Programming Agreements
Company Property Season
Allied Communications, Inc. FilmLeader 3 95-96
HighTide 95-96
Beyond Reality 95-96
FilmLeader Encore 1 96-99
FilmLeader Encore 2 96-00
Active Entertainment Bruno the Kid 96-98
Sky Dancers 96-97
Dragon Flyz 96-97
Monster Mania 96-97
All American Television Baywatch Strip 95-97
CBS/Group W Greatest Moments of the
Olympiad 1996
Columbia Pegasus 2 96-99
Columbia Gold 96-99
Showcase 96-00
Gold II 96-99
Pegasus 3 96-01
The Jeffersons 96-99
Good Times 96-99
Who's the Boss 96-00
All in the Family 96-99
Benson 96-99
Hunter 96-99
Conus Communications All News Channel 95-96
Don Taffner's Entertainment The Wanderer 96-96
First Baptist Church of Gadsden Sunday service 95-96
Genesis Scrooge 96
Marvel Action 94-96
ITC Distribution Mom V Movie Deal Memo 96-97
Kelly News and Entertainment Strong against Crime 96-97
Fire Rescue 96-97
Rebecca's Garden 96-97
MCA Airwolf 97-99
A - Team 96-99
B.J. Lobo 96-99
Black Sheep 96-99
Gimme A Break 96-99
Simon and Simon 96-99
Mediacast Backyard America 95-96
Multimedia Entertainment Damn Taxes 96-97
95-96
Damn Right 95-96
Donahue 95-96
Jerry Springer 95-97
Muller Media Prime Target 2 96-97
MG Perin, Inc. Coast Guard 96-97
Miracles 96-97
Prevention's Body Wise 96-97
Paramount Distribution The Complete Perry Mason 94-99
Perry Mason Features 96-99
The Complete Lucy 94-99
The Andy Griffith Show 94-99
The Complete Matlock 94-98
Rainbow Church of Christ Sunday Service renewed
Rysher Entertainment Saved by the Bell 94-96
Lifestyles 95-96
Highlander 95-96
Samuel Goldwyn Theatre 2 95-96
American Gladiators 94-96
Gladiators 2000 95-96
New Adventures of Flipper 95-96
Starcom Entertainment, Inc. Best Picture Show monthly
Tel-A-Cast Backyard America 96-97
Telecast License Agreement Network One 800\900
TELCO Productions Emergency 96-97
Telepictures Distribution This Old House 96-97
Tradewinds Television Live Entertainment Premiere One 95-98
The Classic Collection 95-96
The Night They Saved Christmas 96-96
Tribune Entertainment Macy's 1996
Gladiators 2000 96-97
Hollywood Christmas 1996
Live from the Academy Awards 1996
Geraldo 95-96
Out of the Blue 95-96
U.S. Farm Report 95-96
Charles Perez 95-96
Flipper 96-97
Turner Program Services Jacques Cousteau 96-96
National Geographic on Assignment 96-96
The World of National Geographic 95-96
Turner Pictures II; Captain Planet
Strip; National Geographic Presents;
The World of National Geographic;
Rediscovery of the World
Turner Pictures III 94-96
Twentieth Century Television M*A*S*H 96-98
Gordon Elliott Show 96-97
United Artists The Bradshaw Difference 96-97
L.A.P.D. 96-97
The Good, The Bad and The Ugly
For a Few Dollars More
Jack the Giant Killer
Marty
The Lion's Pride 96-99
Warner Brothers TV4 Package 96-00
Volume 18 96-98
Volume 19 96-00
Volume 31 96-02
Premiere Edition II 96-98
Premiere Edition Three 96-01
Word of Life Church Services renewed
WorldVision Beverly Hills 90210 94-96
Little House on the Prairie 96-01
4. Oral Agreements
There are no oral agreements relating to the Station or its
operations.
(1) The Affiliation Agreements with FOX and The WB have been terminated by
Exchanger, effective September 2, 1996.
SCHEDULE 3.4
Licenses
Schedule 3.4 -- Licenses
1. Television Broadcast Station License, granted on May 25, 1996
by the Federal Communications Commission, expiration date: April 1, 1997
2. Radio Broadcast Station License, granted on March 24, 1994 by
the Federal Communications Commission, expiration date: April 1, 1997
3. License Renewal Authorization, granted by Federal
Communications Commission on March 31, 1992, expiration date: April 1, 1997
4. City of Gadsden Business License, expiration date: December
31, 1996.
5. Corporate Permit for the year ending December 31, 1996, issued
by the Corporate Tax Division of the State of Alabama.
Continued
Schedule 3.4 to the Asset Exchange Agreement
BIRMINGHAM ADI CABLE COVERAGE
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COUNTY CABLE COMPANY CITY CH # CABLE HH
CHEROKEE TCI OF ALABAMA CENTRE 9 1,116
FALCON CABLE CEDAR BLUFF 10 660
LOOKOUT CABLE ALPINE 2 N/A
GAYLESVILLE 2
WEISS LAKE CABLE PREWITT'S CAMP 2 N/A
ETOWAH COMCAST GADSDEN 2 21,000
GLENCOE 2
RAINBOW CITY 2
CABLE SOUTH HOKES BLUFF 4 1,251
SOUTHSIDE 4 1,700
FALCON CABLE ATTALLA 3 2,755
GALLANT 3
REECE CITY 3
RIDGEVILLE 3
ST. CLAIR ST. CLAIR CABLEVISION ASHVILLE 33 1,860
STEELE 33
SPRINGFIELD 33
UNICORP OF ST. CLAIR CO. 33
ST CLAIR CABLEVISION MARGARET 33 N/A
ARGO 33
PORTIONS OF:
ST. CLAIR CO. 33
JEFFERSON CO. 33
TRUSSVILLE 33
SPRINGFIELD 33
TALLADEGA NEWCHANNELS MUNFORD 11 N/A
SCHEDULE 3.5
Real Property
Schedule 3.5 -- Real Property
1. WNAL does not own any real property in fee simple.
2. WNAL does have a leasehold interest in certain real estate pursuant to
the terms of the following leases:
A. Non-exclusive Lease, dated August 1, 1993, with Alabama
Power Company;
B. Carden Building Lease, dated November 1, 1992, with
Tom A. Carden;
C. Chateau Apartment Residential Lease, dated July 10, 1996;
d. Warehouse Space Rental Agreement, dated October 8, 1996;
and WNAL is not in breach of any term thereof. Neither the Leases nor a
notation of Leases have been recorded.
NOTE: All leasehold interests secure Loan to AmSouth Bank
(see schedule 3.15)
SCHEDULE 3.6
Tangible Personal Property
Schedule 3.6 -- Tangible Personal Property
WNAL-TV, INC. - PHYSICAL INVENTORY(1)
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# NAME OF ITEM MODEL/SERIAL # DESCRIPTION LOCATION NOTES
------------------------------------------------------------------------------------------------------------------------------------
DEPT. PHYSICAL
-----------------
1 Moseley 1600 RMC1600 Remote Control Eng. M/C
2 Video Tek APM2000/05940060 Audio Monitor Eng. M/C
3 Shure M267 Audio Mixer Eng. M/C Two Units
4 Gorman Redlich CEO/6096 EBS Encoder Eng. M/C Includes Radio
5 Sony PVM 1341/2000178 Monitor Eng. M/C
6 DPS DPS-220/9207220026 TBC-Fr. Sync. Eng. M/C Two Units
7 Tektronix 1740/B029824 VFM/Vect. 90 Eng. M/C 2 Units/Diff. Models
8 Scientific Atlanta 6250/3075 Demodulator Eng. M/C Two Units
9 Tektronix 1910/Bolo 878 Digital Gen. Eng. M/C
10 Pesa 1602 16x2 Switcher Eng. M/C
11 Tektronix TSG-100/Bolo 251 Signal Gen. Eng. M/C
12 Video Tek RS10A 10x1 Switcher Eng. M/C
13 Sony VO5800/27891 Videotape Recorder Eng. M/C
14 Sony VP5000/63225 Videotape Player Eng. M/C
15 Sony VP5000/62346 Videotape Player Eng. M/C
16 Sony VP5000/62389 Videotape Player Eng. M/C
17 JVC TM/9U(A)/06935877 Color Monitor Eng. M/C
18 JVC TM9U(A)/06935362 Color Monitor Eng. M/C
19 JVC TM9U(A)/06935397 Color Monitor Eng. M/C
20 JVC TM9U(A)/10070665 Color Monitor Eng. M/C
21 JVC BA-9622U/08013868 S-VHS Videotape Rec. Eng. M/C Two Units
22 JVC BR-9622U/08013853 S-VHS Videotape Rec. Eng. M/C
23 DPS DPS-220/5E220006 TPC - Fr. Sync. Eng. M/C
24 JVC TM-9U(A)/09937224 Color Monitor Eng. M/C
25 JVC TM-9U(A)/06936149 Color Monitor Eng. M/C
26 JVC TM-9U(A)/06935524 Color Monitor Eng. M/C
27 JVC TM-9U(A)/06935386 Color Monitor Eng. M/C
28 Panasonic CT-1330V/UG4342750 Color Monitor Eng. M/C
29 Zenith SC3361S/721-05170239 Color Monitor Eng. M/C
30 JVC BR-S378U/168X0139 S-VHS Videotape Rec. Eng. M/C
31 JVC BR-S378U/159X0192 S-VHS Videotape Rec. Eng. M/C
32 JVC BR-S378U/069X0214 S-VHS Videotape Rec. Eng. M/C
33 JVC BR-S378U/168X0119 S-VHS Videotape Rec. Eng. M/C
34 JVC BR-S378U/168X0017 S-VHS Videotape Rec. Eng. M/C
35 JVC BR-S378U/069X349 S-VHS Videotape Rec. Eng. M/C
36 JVC BR-S378U/168X0011 S-VHS Videotape Rec. Eng. M/C
37 Cross Point Latch 6109/0216 Production Switcher Eng. M/C
38 Gen. Instrument 5501 Eng. M/C
39 President Video Cypher II Sat. Rec. Eng. M/C
40 Uniden UST-4400/15004171 Sat. Rec. Eng. M/C
41 Link StarFlex Video-Audio DA Eng. M/C
42 Leading Edge CMC 1417 AE Computer Monitor Eng. M/C
43 Leading Edge CPC2603/33/WIN7102 Computer Eng. M/C
44230705984
44 Avid (2) Airplay/FC4390E41MI Computer Spot Player Eng. M/C Inc. all components
except monitor
45 Avid (2) HL7955SKTA/ Color Monitor Eng. M/C
407007384
46 Iris Tech Video Commander Routing Switcher 16x16 Eng. M/C Inc. 3 Boxes & Software
as of August 1, 1996
Page 1 of 7
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# NAME OF ITEM MODEL/SERIAL # DESCRIPTION LOCATION NOTES
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DEPT. PHYSICAL
-------------------
47 Tektronix 1750/B030956 Waveform monitor Eng. M/C
Vectorscope
48 Shure M-267 Audio Mixer Eng. M/C
49 Hewlett-Packard C2163A/VS4CT16029 Printer Eng. M/C
50 Grass Valley 3252/73637 Sync. Gen. Eng. M/C
51 Chyron VP2 Character Gen. Eng. M/C
52 Magnavox (4) RR1352 C403/33293645 Color TV & Monitor Eng. M/C
53 Digital Clock Kit Built Master Clock Eng. M/C 1 Master/2 Slaves
54 3M AT-60 Audio Amp. Eng. M/C
55 Werner PT374-46 Rolling Ladder Eng. M/C
56 Number Destroyed
57 Detroit Diesel 1271 Diesel Engine - V-12 & Eng. Xmtr. Inc. Fuel Tank
Generator set
58 Central Tower 3600 400' Tower Eng. Outside Includes Lighting,
Static Cut & Ice
Bridge
59 Andrew Ant. ATW32G4-HSS-44 UHF Antenna Eng. Tower
60 Andrew Trans. Line MaxiLine 6-1/8" Coax Eng. Xmtr.
61 Building (Xmtr.) Built '94 by Phillip Smith 30'x30 Metal/Concrete Eng. Xmtr. Inc. lights, wiring,
Floor disconnect, etc.
62 General 87AC 1062/4318 ABT Switch, 600V 600A Eng. Xmtr.
63 Siemens 3F3Y075ST Dry Transformer/75KVA Eng. Xmtr.
480/208-120
64 Larcan TTC HDR-30-A1 IOT Transmitter Eng. Xmtr. Inc. control cab &
3353-MIA-94 0-0011 blowers
65 Larcan TTC 3353-MIA-9410-001C Driver Cabinet Eng. Xmtr. Inc. Mod, UPCON, PS,
Controller, 3 AMPS
66 Peter Dahl 8162-765 33KV PS Eng. Xmtr.
Transformer Co.
67 Goodman CE60-3B/9406123149 A/C Outside Unit Eng. Xmtr.
68 Goodman A6020/9410036444 Air Handler - Inside Eng. Xmtr.
69 EEV 7340R/47-9451 IOT Eng. Xmtr.
70 EEV MA22388/014 Magnet Assembly Eng. Xmtr.
71 EEV MA2611A Input Cavity Eng. Xmtr.
72 Altronic 5825E4/140 Dummy Load/Aircooler Eng. Xmtr. Inc. Thru-Line Meter
73 MCI 49300/5280 Band Pass Filter Eng. Xmtr. Includes 4-1/16 Coax
& Step
74 MCI 31502/5281 4-1/16 Panel - 5 Pont Eng. Xmtr. Reducer Harmonic
Filter
75 Andrew 50 to 75 R 6-1/8" Eng. Xmtr.
Transformer
76 Macom MA-KA 845200-1/T103F2101.5 M/U Rec. Eng. Xmtr.
77 Macom MA-KA Pac-12 Audio Demodulator Eng. Xmtr.
78 Andrew Heliax 7/8" Coax, Approx. 325' Eng. Outside
79 Mark Ant. 6' Grid M/W Rec. Dish Eng. Tower
80 Tektronix 1480/B093331 Waveform monitor Eng. Xmtr.
81 Tektronix 520A/B43937 Vector Scope Eng. Xmtr.
82 Grass Valley 3252-796 Sync. Gen. Eng. Xmtr. Inc. 4 Cards SF,
I.P.S.
83 Grass Valley 3240/2710 Proc. Amp Eng. Xmtr. Inc. 5 Cards, IPS
84 VideoTek DM154/12940B19 Demodulator Eng. Xmtr.
85 Tektronix TSG170A/B030415 Signal Gen. Eng. Xmtr.
86 Sony PUM 1380/2007466 Color Monitor Eng. Xmtr.
87 Moseley MAC1600/9103722 Remote Control Eng. Xmtr.
88 Orban 275A Auto Stereo Synthesizer Eng. Xmtr.
89 Bird 4388/0160 RF Power Analyst Eng. Xmtr. Inc. Thru-line
mounted in Trans-
mission Line
90 Orban 8182A/56/800191 Optimod TV, Stereo Gen. Eng. Xmtr.
as of August 1, 1996
Page 2 of 7
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# NAME OF ITEM MODEL/SERIAL # DESCRIPTION LOCATION NOTES
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DEPT. PHYSICAL
------------------
91 Orban 8182A/885523 Optmod TV, Compress Etc. Eng. Xmtr.
92 Lightning Prot. Corp LPC20716/2253 Surge Supressor Eng. Xmtr.
93 Larcan TTC 5014-9410-003/1908L Surge Supressor Eng. Xmtr.
94 Ratelco VR24202-1908L Battery Charger Eng. Xmtr.
95 Dayton 2C785B Shutter Exhuast fan Eng. Xmtr. Inc. Remote Shutter
96 Tektronix An/USM-281C/445M 7603 O Scope Eng. Xmtr. Inc. 1 Time Base/2 Vent Amp
97 Leader LDC-825/3100294 Digital Counter Eng. Xmtr.
98 Avid (2) Med. Composer/ 1000 Digital Editing System Eng. Prod. Inc. Keyboard, HO,
XB437076672 Cabler, CD Rom
99 Avid (2) HC3925KTK Color Monitor Eng. Prod. Two Units
40600159
100 Avid (2) HC3925KTK Color Monitor Eng. Prod.
406005166
101 Roland MA-12/EG63060 Micro Mon. (Audio) Eng. Prod. Two Units
102 Roland MA-12/EG63060 Micro Mon. (Audio) Eng. Prod.
103 Mackie 1202/D75192 Audio Mixer Eng. Prod. Two Units
104 Sony CDP215/8858036 CD Player Eng. Prod.
105 JVC BR-S378U/168X0010 S-VHS Video Tape Rec. Eng. Prod.
106 JVC KY27BU/10950243 Color Camera Eng. Prod.
107 JVC BR-S42U/15810854 S-VHS Tape Recorder Eng. Prod.
108 Fujinon A12X9 BFRM-8C 12X Lens Eng. Prod.
08C5900135
109 JVC VF-P1154/16751115 View Finder Eng. Prod.
110 JVC AA-P250U/14852007 AC Power Adapter Eng. Prod. Inc. 3 Batt. NB-G11
111 Lowell Trans-Kit/TI-92 Light Kit Eng. Prod.
112 Peter Ligamd JRA-83ML Tripod Eng. Prod.
113 Peter Ligamd UL1-321 Fluid Head Eng. Prod.
114 Nady 151VR/151139276 Wireless Microphone Eng. Prod. Rec. & Xmtr. 11265
115 Electro-Voice 635A/9448 Microphone Eng. Prod.
116 Scientific Atlanta 6250/010260 Demodulator Eng.
117 Olson OTD-2000/1465 Demod (Cable) Eng.
118 Mark Ant. 4' Grid. M/W Dish Eng. Tower 510 Chestnut Street
119 Rohn SSV 90' Tower/M/W Xmt. Eng. Outside 510 Chestnut Street
120 Andrew Heliax 7/8", approx. 150', M/W Outside 510 Chestnut Street
121 Macom MA-K6 M/W Transmitter Eng. Upstairs Inc. T-Rack
122 Macom PAC10 Audio Modulator Eng. Upstairs Inc. LP Video Filter
123 RCA DRD102RW/451513244 DBS Sat. Rec. Eng. Upstairs Inc. 18" dish
124 1400' Fiber Optic Cable Eng. Outside Strung on Poles
125 Clarke Cable 400' Video/6 Audio Eng. Outside Dee Ford Protect
126 Telephone Cable 12 Pr. Telephone Eng. Outside Dee Ford Protect
127 Mackie 1202/DO91471 Audio Mixer Eng. Dee Ford Remote Studio
128 Fujinon SRD-92B Zoom Control Eng. Prod.
129 JVC VF-P400U/09053f168 Viewfinder Studio Eng. Prod.
130 Sencore SL750/6096961M TV Signal Stre. Meter Eng. Eng. Inc. Ant, Pg. & Case
131 Sat. Dish 12' (Moves) Sat. Dish Eng. Outside Rickles
132 Sat. Dish 10' (Moves) Sat. Dish Eng. Outside
133 Sat. Dish 10' (Does not move) Sat. Dish Eng. Outside
134 GoldStar (4) CMT4842N/XC00005913 13" Color TV Eng. Inc. Remote
135 GoldStar CMT9325/KC60402781 19" Color TV Sales GSM Off. Inc. Remote
136 Sharp (4) VC-A102U/353796 VCR Sales GSM Off.
137 Sharp 13A-M050/515294 13" Color TV P&O Traffic Inc. Remote
138 Sharp 13A-M050/514199 13" Color TV G&A GM Off. Inc. Remote
139 Emerson VCR910/E746649 VCR G&A GM Off.
as of August 1, 1996
Page 3 of 7
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# NAME OF ITEM MODEL/SERIAL # DESCRIPTION LOCATION NOTES
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DEPT. PHYSICAL
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140 Quasar T6278YW/AQ52269349 19" Color TV P&O Lobby
141 CTX CVP5429A 14" Color Comp Monitor Sales
K20-22202774
142 Smile Int'l CA1716DS 17" Color Comp. Monitor Sales GSM Off.
ALKKU5357940
143 No Name 9200533 386 Computer Sales GSM Off. Inc. Keyboard & Mouse
144 Trip-Lite CCI Plus/BBT4A Surge Supressor Sales GSM Off.
145 Hewlett-Packard DeskJet 560C Color Printer Sales GSM Off.
US4721G19N
146 Packard Bell PB85385VGA 13" Color Monitor P&O Traffic Inc. Keyboard & Mouse
12131428
147 Packard Bell PB1120/L033034757 Computer P&O Traffic Inc. Keyboard & Mouse
148 Micro-Lan Computer P&O Traffic Inc. Keyboard & Mouse
T90051278/110494
149 CTX 1451/090-43000110 14" Color Monitor P&O Traffic
150 Brother IntelliFax 950M Fax Machine P&O Traffic
K31959103
151 Brother GX6750/H56253885 Electronic Typewriter P&O Traffic
152 Hewlett Packard DeskJet 500 Printer P&O Traffic
US3576110SV
153 Alton AL142856/205C101708 12" Color Comp. Monitor G&A Admin
154 Kensinton Microwave/I696U Surge Supressor G&A Admin.
155 No Name T90022348-71592 Computer G&A Inc. Keyboard & Mouse
156 Xerox PA-/68H-523667 5028 Copier
157 Xerox 7024 Fax Terminal G&A
158 Sony CDP-70/851674 CD Player G&A
159 IBM PS-1 23ZCW02 Computer G&A GM Off. Inc. Kyd., Mouse, Speak (2)
160 IBM-PS-1 2112 001/23-46433 14" Color Comp. Monitor G&A GM Off.
161 PC Concepts MT-767/ED1088 Surge Supressor G&A GM Off.
162 Hewlett Packard DeskJet 520 Printer G&A GM Off.
US417170V1
163 Panasonic KX-P2123 Printer G&A Not Used-Inc. Cable
3GSBNF445997
164 Rack #1 Black Equipment Rack, 19" W. Eng. M/C
165 Rack #2 Black Rack, 19" W. Eng. M/C
166 Rack #3, Avid (2) White Rack, 19" W. Eng. M/C
167 Rack #4 Black Rack, 19" W. Eng. M/C
168 Rack #5 Blue Rack, 19" W. Eng. M/C
169 Rack #6 Grey Rack, 19" W. Eng. M/C
170 Rack #7 Black Double Rack - 19" Wide Eng. M/C
171 Northern Telecom Meridan/0404369135 Telephone G&A Eng. Off
172 Northern Telecom Meridan/0409179134 Telephone G&A Sales
173 Northern Telecom Meridan/04112409206 Telephone G&A Sales
174 Northern Telecom Meridan/0404249135 Telephone G&A Sales
175 Northern Telecom Meridan/0403249135 Telephone G&A Sales
176 Northern Telecom Meridan/0404329135 Telephone G&A GSM Off.
177 Northern Telecom Meridan/0417298951 Telephone G&A Prod.
178 Northern Telecom Meridan/0402269135 Telephone G&A M/C
179 Northern Telecom Meridan/0407519134 Telephone G&A Sales
180 Northern Telecom Meridan/0401438129 Telephone G&A Lobby Master Set
181 Northern Telecom Meridan/0403529135 Telephone G&A Kitchen
182 Northern Telecom Meridan/0403129135 Telephone G&A Traffic
183 Northern Telecom Meridan/0403449135 Telephone G&A Traffic
as of August 1, 1996
Page 4 of 7
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# NAME OF ITEM MODEL/SERIAL # DESCRIPTION LOCATION NOTES
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DEPT. PHYSICAL
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184 Northern Telecom Meridian/0403489135 Telephone G&A Conf. Rm.
185 Northern Telecom Meridian/0404289131 Telephone G&A Admin.
186 Northern Telecom Meridian/0413699206 Telephone G&A Fax Phone
187 Northern Telecom Meridian/0407109134 Telephone G&A GM Off.
188 Northern Telecom Meridian/0403649135 Telephone G&A GM Off.
189 Northern Telecom Meridian/0401809134 PBX Control Unit G&A Kitchen Inc. Accessories Mt. on Wall
190 AT&T HT-5300/890127 Cordless Telephone G&A Kitchen
191 Rack #1 Black Rack, 19" W. Eng. Xmtr.
192 Rack #2 Black Rack, 19" W. Eng. Xmtr.
193 Oxy. Welding Equip Welding Equipment Eng. Xmtr. 2 Bottles, gauges, hoses, cart
194 AT&T 700/CS6601601D Telephone Eng. Xmtr.
195 Werner W-336 Ladder, 6' Wood Eng. Xmtr.
196 Werner W-368 Ladder, 8' Metal Folding Eng. Xmtr.
197 Werner D1124-2 Ladder, 24' Metal Ext. Eng. Xmtr.
198 Desk Wood 2-Drawer, Brown G&A Eng. Off.
199 Chair Cloth Bottom Wooden Arms G&A Eng. Off.
200 File Cabinet White 2-Drawer Metal G&A Sales
201 File Cabinet White 2-Drawer Metal G&A Sales
202 File Cabinet White 2-Drawer Metal G&A Sales
203 File Cabinet White 2-Drawer Metal G&A Sales
204 SwinTec 1146CM Typewriter, Electric G&A Lobby
205 Desk Red Wood, 3-Drawer G&A Lobby
206 Typewriter Table Wood, Oak G&A Lobby
207 Chair Green Wood Legs G&A Lobby
208 United Chair 109084 Grey, Adj. w/ Wheels G&A Lobby
209 Table White Metal G&A Prod.
210 File Cabinet Black 2-Drawer Wood G&A Prod.
211 United Chair Red Adj. w/ Wheels G&A Prod.
212 Desk Brown Top 6-Drawer, Metal G&A M/C
213 Brother AX-250/LI6527063 Elec. Typewriter G&A M/C
214 Cabinet Black 7 Sliding Shelves G&A M/C
215 Hon S720WNN24/ALIML3 Chair. Brown G&A M/C
216 United Chair Red Adj. w/ Wheels G&A M/C
217 United Chair 109084 Grey, Adj. w/ Wheels G&A M/C
218 Desk Black 4-Drawer, Wood G&A Sales
219 File Cabinet Tan 4-Drawer, Metal G&A Eng.
220 Chair Grey Adj. w/ Wheels G&A Sales Wal-Mart
221 Kitchen Table Wood G&A Kitchen
222 Chair Green Bottom Wood G&A Kitchen
223 Chair Green Bottom Wood G&A Kitchen
225 Scotsman Auto. Ice Machine G&A Kitchen
226 Scotsman RF33A-1B-276181-06J Refrigerator G&A Kitchen
227 Amana Radar Range Microwave Oven G&A Kitchen
P7733207M
228 Vanity Marble Top/wood G&A Bathroom
229 Conference Table Wood G&A Conf. Rm.
230 Chair Green Bottom Wood G&A Conf. Rm.
231 Chair Green Bottom Wood G&A Conf. Rm.
232 Chair Green Bottom Wood G&A Conf. Rm.
233 Chair Green Bottom Wood G&A Conf. Rm.
234 Chair Green Bottom Wood G&A Conf. Rm.
235 Chair Green Bottom Wood G&A Conf. Rm.
236 Cabinet Shelves & Drawers Wood./2-Drawer G&A Conf. Rm.
as of August 1, 1996
Page 5 of 7
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DEPT. PHYSICAL
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237 Desk Red Wood G&A Admin.
238 File Cabinet Blonde 2-Drawer, Wood G&A Admin.
239 Credenza Red 4-Drawer G&A Admin.
240 Chair Green/Red Wood G&A Admin.
241 Chair Green/Red Wood G&A Admin.
242 Desk Red/Gray Wood Top, 5-Drawer G&A Fax Rm.
243 Chair Red Leather High Back w/ Wheels G&A Admin.
244 Desk Wood, 9 Drawer Sales GSM Off
245 Credenza Brown Wood Sales GSM Off
246 Chair Red Leather High Back w/ Wheels Sales GSM Off
247 Cabinet Brown Wood, 4-Drawer Sales GSM Off
248 Chair Red Leather Wood Sales GSM Off
249 Chair Red Leather Wood Sales GSM Off
250 TV Table Brown Wood Sales GSM Off
251 G.E. SC4SJB/HV810701 Refrigerator, Compact G&A Dn. Kit.
252 Quasar MQ5516AU Microwave Oven G&A Dn. Kit.
NM635390293
253 Mr. Coffee Coffee Maker G&A Dn. Kit.
254 Desk Wood, 9 Drawer G&A GM Off.
255 Chair Red Leather High BAck w/ Wheels G&A GM Off.
256 Computer Table Metal, Wood Top G&A GM Off.
257 Chair Red Leather Wood Legs G&A GM Off.
258 Chair Red Leather Wood Legs G&A GM Off.
259 Chair Cloth/Wood G&A GM Off.
260 Chair Cloth/Wood G&A GM Off.
261 Fellows PS50/392372 Paper Shredder G&A GM Off. Inc. PS
262 Cabinet Book Case Wood, 3 Shelf/2 Drawer G&A GM Off.
263 Chair Green Cloth/Wood G&A Upstairs
264 Chair Green Cloth/Wood G&A Upstairs
265 Chair Green Cloth/Wood G&A Upstairs
266 Sofa 1 Cushion Cloth w/ Wood Legs G&A Upstairs
267 End Table 1-Drawer Wood G&A Upstairs
268 Chest 3-Drawer Wood G&A Upstairs
269 Table 3-Drawer Wood G&A Upstairs
270 Table Glass Top Green Bottom G&A Upstairs
271 Werner W336 6' Wood Ladder Eng.
272 File Cabinet Black 4-Drawer G&A Traffic
273 File Cabinet Black 3-Drawer G&A Traffic
274 Desk Brown 7-Drawer G&A Traffic
275 Table Comp. Keybd. Shelf White Top/Red Metal G&A Traffic
276 Table Computer White Top/Red Metal G&A Traffic
277 Table Computer White Top/Red Metal G&A Traffic
278 Steelcase Chair Metal & Cloth w/ Wheels G&A Traffic
279 United Chair 82083 Cloth w/ Wheels G&A Traffic
280 United Chair Red Cloth w/ Wheels G&A Traffic
281 Chair Brown Cloth & Wood G&A Traffic
282 Comfort Edge TY-12/CET1712 Oscillating Fan G&A Traffic
283 Book Case Brown Wood, 3-Shelf G&A Traffic
284 Hewlett Packard Laser Jet 4 Plus Printer G&A Traffic
285 Tektronix 7L12/B202845 Spectrum Analyzer Eng. Xmtr.
286 Tektronix 7603/B328265 Oscilliscope, Main Frame Eng. Xmtr.
287 Tektronix Type 200-l, Model M Mobile Cart Eng. Xmtr.
288 Fluke 87/30101306 Digital Voltmeter Eng. Xmtr.
as of August 1, 1996
Page 6 of 7
[Enlarge/Download Table]
# NAME OF ITEM MODEL/SERIAL # DESCRIPTION LOCATION NOTES
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DEPT. PHYSICAL
-----------------
289 Gen. Control Panel P5A06002/3566 TLA Cont. Panel for Diesel Eng. Xmtr.
290 Demco Prod. None 375KW Gen. Eng. Xmtr.
291 Water Cooler TB9-AC4/950178610 Cordley/Elkay G&A Dn. Kit.
292 FM Systems VM771/R02075 Video Processor Eng. M/C
293 Ford Bronco XLT (3) 1FMCU12TILUA62627 1989 G&A Eng.
294 JVC BMH1300SU/12030203 13" Color Monitor Eng. Xmtr.
295 Tektronix TAS465/BO32301 100 MHL Oscope Eng. Xmtr.
296 JVC TM-A9U/17070024 9" Color Monitor Eng. Prod.
297 JVC TM-A9U/17070022 9" Color Monitor Eng. M/C
298 JVC AA-P25OU/12053839 AC P.S. for Camera Eng. Prod.
299 Gen. Instrument CU59OI/150049506 Satellite Receiver Eng. M/C
300 Andrew LDF-5-50A 105' Heliax, 7/8" Dia. Eng. MW Twr. L45F, L5NF, N-Connector
301 Credenza Mahogany w/Comp. Kbd. Shelf G&A GM Off.
302 File Cabinet Mahogany 2-Drawer G&A GM Off.
303 Hand Truck Sm. Silver Eng. Xmtr.
304 Hand Truck Pneumatic Tires Eng. M/C
305 Natl. Comp. Outlet 900L2545AMD0895 Server Traffic Sales Inc. Keyboard
(1) All property secures a loan to AmSouth Bank, as more fully described in
Schedule 3.15.
(2) Airplay and Color Monitor subject to that Master Lease Agreement number
15215 dated April 6, 1995 with Central Capital Corporation.
(3) Certificate of title individually held by Anthony Fant (will be executed
and delivered).
(4) Property is in disrepair; it is not feasible to repair and is to be
discarded.
as of August 1, 1996
Page 7 of 7
SCHEDULE 3.7
Contracts
Schedule 3-7 -- Contracts and Agreements
Except where expressly noted, all of the following contracts are "Assumed
Contracts."
[Download Table]
1. Agreements relating to Real Estate
M Alabama Power Company Non-exclusive Lease, dated August 1,
1993, for tower and antenna site
M Alabama Power Company Lease, dated July 1, 1995
M Tom A. Carden Building Lease, dated November 1, 1992,
office space and broadcasting facilities, as
extended on July 1, 1996
Chateau Apartments Rental apartment *
LB Chemical Company Warehouse/storage area *
2. General Contracts and Agreements
Associated Press AP NewsCenter * 96-98
AP NewsPower * 96-98
GraphicsBank * 96-98
ASCAP Blanket License Fee 1996
Broadcast Music, Inc. Blanket License Fee 1996
Center Capital Corporation Avid AirPlay and Media Composer
CBS Affiliation Agreement, Newspath
Agreement, ServiceMark License
Agreement
FOX (1) Affiliation Agreement
Luckie and Company Public Relations Firm *
NAB Member of National Association of
Broadcasters
Network Music License Renewed *
Nielsen Media Research Index Service Agreement 94-99 *
Petry, Inc. Representative Agreement 94-99
SESAC Performance License Fees 1996
Software Systems, Inc. Summit television system 95-98
UPS Network servce 95-96
WP Communications (1) Affiliation Agreement
Xerox Xerox 5028 96-97
3. Programming Agreements
Company Property Season
Allied Communications, Inc. FilmLeader 3 95-96
High Tide 95-96
Beyond Reality 95-96
FilmLeader Encore 1 96-99
FilmLeader Encore 2 96-00
Active Entertainment Bruno the Kid 96-98
Sky Dancers 96-97
Dragon Flyz 96-97
Monster Mania 96-97
All American Television Baywatch Strip 95-97
CBS/Group W Greatest Moments of the 1996
Olympiad
Columbia Pegasus 2 * 96-99
Columbia Gold * 96-99
Showcase * 96-00
Gold II * 96-99
Pegasus 3 * 96-01
The Jeffersons * 96-99
Good Times * 96-99
Who's the Boss * 96-00
All in the Family 96-99
Benson * 96-99
Hunter * 96-99
Conus Communications All News Channel 95-96
Don Taffner's Entertainment The Wanderer 96-96
First Baptist Church of Gadsden Sunday service 95-96
Genesis Scrooge 96
Marvel Action 94-96
ITC Distribution Mom V Movie Deal Memo 96-97
Kelly News and Entertainment Strong against Crime 96-97
Fire Rescue 96-97
Rebecca's Garden 96-97
MCA Airwolf 97-99
A - Team 96-99
B.J. Lobo 96-99
Black Sheep 96-99
Gimme A Break 96-99
Simon and Simon 96-99
Mediacast Backyard America 95-96
Multimedia Entertainment Damn Taxes 96-97
95-96
Damn Right 95-96
Donahue 95-96
Jerry Springer 95-97
Muller Media Prime Target 2 96-97
MG Perin, Inc. Coast Guard 96-97
Miracles 96-97
Preventions' Body Wise 96-97
Paramount Distribution The Complete Perry Mason 94-99
Perry Mason Features 96-99
The Complete Lucy 94-99
The Andy Griffith Show 94-99
The Complete Matlock 94-98
Rainbow Church of Christ Sunday Service renewed
Rysher Entertainment Saved by the Bell 94-96
Lifestyles 95-96
Highlander 95-96
Samuel Goldwyn Theatre 2 95-96
American Gladiators 94-96
Gladiators 2000 95-96
New Adventures of Flipper 95-96
Starcom Entertainment, Inc. Best Picture Show monthly
Tel-A-Cast Backyard America 96-97
Telecast License Agreement Network One 800\900
TELCO Productions Emergency 96-97
Telepictures Distribution This Old House 96-97
Tradewinds Television Live Entertainment Premiere One 95-98
The Classic Collection 95-96
The Night They Saved Christmas 96-96
Tribune Entertainment Macy's 1996
Gladiators 2000 96-97
Hollywood Christmas 1996
Live from the Academy Awards 1996
Geraldo 95-96
Out of the Blue 95-96
U.S. Farm Report 95-96
Charles Perez 95-96
Flipper 96-97
Turner Program Services Jacques Cousteau 96-96
National Geographic on Assignment 96-96
The World of National Geographic 95-96
Turner Pictures II; Captain Planet
Strip; National Geographic Presents;
The World of National Geographic:
Rediscovery of the World
Turner Pictures III 94-96
Twentieth Century Television M*A*S*H 96-98
Gordon Elliott Show 96-97
United Artists The Bradshaw Difference 96-97
L.A.P.D. 96-97
The Good, The Bad and The Ugly
For a Few Dollars More
Jack the Giant Killer
Marty
The Lion's Pride 96-99
Warner Brothers TV4 Package 96-00
Volume 18 96-98
Volume 19 96-00
Volume 31 96-02
Premiere Edition II 96-98
Premiere Edition Three 96-01
Word of Life Church Services renewed
WorldVision Beverly Hills 90210 94-96
Little House on the Prairie 96-01
4. Oral Agreements
There are no oral agreements relating to the Station or its operation.
(1) The Affiliation Agreements with FOX and The WB have been terminated by
Exchanger, effective September 2, 1996.
* -- Not Assumed by Recipient
M -- Material Contract
TRADES
AUG. 1, 1995 - JULY 31, 1996
[Download Table]
CLIENT TOTAL THEY OWE STATION OWES BALANCE
TRADE STATION CLIENT
T.A.P. Mkt
Gatlinburg $ 3,000 $ 0 $ 0 $ 0
Oleander Resort $ 10,000 $ 10,000 $ 7,000 $ 7,000
(T.A.P. timebank) $ 3,000 $ 3,000
---------
Total $ 10,000
"The Warehouse" $ 1,015 $ 1,015 $ 0 $ 1,015
Baker Tires $ 1,610 $ 0 $ 0 $ 0
Automotive
International $ 750 $ 0 $ 0 $ 0
Timberlake
Pet World $ 3,600 $ 0
Merry Maids $ 6,300 $ 0 $ 0 $ 0
Delaney's Furniture $ 2,650 $ 0 $ 790 $ 790
Visions Technology $ 1,925 $ 0 $ 0 $ 0
Bell South Mobility $ 5,132.40 $ 2,182.40 $ 0 $2,182.40
WVOK Radio $ 7,140 $ 0 $ 770 $ 770
WHMA Radio $ 19,855 $ 0 $ 10,228 $ 10,228
WGAD Radio $ 2,296 $ 0 $ 2,296 $ 2,296
WKXX Radio $ 2,550 $ 0 $ 1,600 $ 1,600
---------- ---------- --------
$67,823.40 $13,197.40 $ 25,684
SCHEDULE 3.9
Intangibles
Schedule 3.9 -- Intangibles
There are no intangibles being conveyed herein.
SCHEDULE 3.11
Insurance Policies
Schedule 3.11 -- Insurance Policies
[Download Table]
Type of Insurance Policy No. Effective Expiration
Date Date
------------------------------------------------------------------------
1. Commercial General
Liability CPP 0663996 2-27-95 2-27-98
2. See Insurance policies described within Scheduled 3.13
SCHEDULE 3.13
Employee Matters
Schedule 3.13 -- Employee Matters
1. List of all employees of the station.
[Enlarge/Download Table]
Name Title Salary Hire Date Last Salary Increase Prior Salary
---------------------------------------------------------------------------------------------------------------------------------
Bedford, Lisa 20,000 7/15/96 N/A N/A
Bellew, Leonard Switcher/Master Control 5/hr 11/9/94 N/A N/A
Black, Jabal J. Switcher/Master Control 5/hr 10/25/95 N/A N/A
Brogden, Gregg M. Sales 15,600 * 5/16/95 N/A N/A
Chivers, Jimmy C. Chief Engineer 26,832 7/22/91 10/11/95 26,250
Coats, Roy A. Switcher/Master Control 5/hr 7/13/95 N/A N/A
DeMarco, Shelia Receptionist 5.75/hr 5/25/94 10/11/95 5/50/hr
Hood, David 21,000 7/29/96 N/A N/A
Humphries, Laurie Sales 15,600 * 9/26/94 N/A N/A
Jones-Correy, Jennifer Traffic 6.5/hr 11/3/94 3/27/96 6.25/hr
Mason, Sandra P. Sales 15,600 * 5/7/96 N/A N/A
McCoy, Jr., Samuel Switcher/Master Control 5/hr temp. 11/7/94 N/A N/A
McLeod, Tim Switcher/Master Control 5.5/hr 1/1/90 N/A N/A
Milam, Chris Switcher/Master Control 5/hr 5/29/95 N/A N/A
Otwell, Bobby Production/MC Supervisor 6.25/hr 6/3/94 10/11/95 6/hr
Parks, William Sales Manager 80,000 * 11/15/95 5/8/96 75,000
Phillips, John T. Switcher/Master Control 5/hr temp. 1/31/96 N/A N/A
Roundtree, Charles General Manager 75,000 7/11/94 5/8/96 51,984
Scott, Lee Switcher/Master Control 5/hr temp. as needed N/A N/A
Thrash, Deanine Switcher/Master Control 4.75/hr 6/13/95 N/A N/A
White, Debra A. Traffic 18,512 5/13/92 10/11/95 18,000
Winsor, Fredrick National Sales Operator 30,000 7/9/96 N/A N/A
* subject to sales commissions
2. List of employee benefit arrangements.
A. Company pays one-half of the health insurance premium with Mutual of
Omaha, Group Number UWE-7DV9.
B. Life insurance in the amount of $15,000 furnished employee through
Mutual of Omaha.
C. Opportunity afforded employee to purchase disability insurance with CICA
Insurance Group, Group Number 04227.
D. Opportunity afforded employee to purchase dental insurance through Blue
Cross Blue Shield, Account number 36646-999.
E. Cancer insurance available to employee, at their expense, through AFLAC,
Account A6473.
F. In addition to certain specified paid holidays, employees receive one
week of vacation after one full year of service and two weeks vacation
after five years of service.
G. Employee is entitled to up to five days of sick leave.
3. There are no fixed or contingent liabilities or obligations with respect to
any person now or formerly employed.
SCHEDULE 3.15
Claims
Schedule 3.15 -- Claims
1. WNAL-TV, Inc. v. Stainless, Inc. Case Number: CV 96-S-437-S, in the
United States District Court for the Northern District of Alabama, Southern
Division. Suit filed on January 16, 1996 by WNAL against Stainless for breach
of contract. Lawsuit is in the discovery stage.
2. WNAL-TV v. WTTO, Case number: CV 94 734 DWS, in the Circuit Court of
Etowah County, arising out of a title dispute to certain property. Case has
been settled and final paperwork is in the process of preparation.
3. Gadsden Broadcasting Company v. WNAL-TV, Case Number: CV 95 807 WHR,
in the Circuit Court of Etowah County, Alabama. In December, 1994, WNAL
terminated the employment agreement with Donna Baker in response to the
written demands to do so from Gadsden Broadcasting (owner of a local radio
station), which contended the continued employment of Donna Baker was a
violation of a previous non-competition agreement with Ms. Baker. Donna Baker
subsequently filed suit against Gadsden Broadcasting Company for several causes
of action, including interference with her contract with WNAL, she did not,
and has not, sued WNAL. Gadsden Broadcasting has filed a third party complaint
against WNAL, claiming that any damage to Baker was the result of WNAL's
termination and not the result of anything it has done.
4. Douglas Rowe v. WNAL-TV, Inc. 1994 case in the Small Claims Court for
Etowah County, Alabama, arising from a dispute between the Company and
employee. Judgment entered in favor of Employee and against Company in the
amount of $1,150: Case No. SM94 1934. Company disputes validity of judgment
obtained.
5. To the best of Exchangor's knowledge there are no controversies,
disputes or proceedings pending, or threatened, between it and any employee
(singularly or collectively) of the Station.
6. To the best of Exchangor's knowledge there are (except for any FCC
rule-making proceedings generally affecting the broadcasting industry) no
claims, legal actions, counterclaims,
suits, arbitration, governmental investigations or other legal administrative,
or tax proceedings, nor any order, decree or judgment, in progress or pending,
nor, to the best of Exchangor's knowledge, threatened, against or relating the
Exchangor with respect to its ownership or operation of the Station, or
otherwise relating to the Assets or the business or operation of the Station,
nor does Exchangor know or have reason to be aware of any basis for the same.
7. To the best of Exchangor's knowledge, there are no charges, complaints,
actions, suits, proceedings, hearing investigations, claims or demands against
Exchangor 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, or alleging any failure to comply with any law, rule, or
regulation dealing with the environment or the public health and safety or
employee health and safety.
8. To the best of Exchangor's knowledge, neither the ownership or use of
the properties of the Station nor the conduct of the business of the Station
has conflicted with the rights of any other person or entity.
9. There are certain claims and accounts payables, which have been
incurred in the normal course of business, for which Exchangor has made
arrangements for satisfaction and payment.
10. Exchangor has incurred certain indebtedness to The AmSouth Bank, N.A.,
evidenced by a Promissory Note, dated January 31, 1995, in the amount of
$353,000, a portion of which remains outstanding. Any unpaid balance will be
paid at the first closing, as defined herein. This note is secured by
Collateral described in that certain loan and Security Agreement of like date,
said Collateral comprised of all of the assets of WNAL.
11. A dispute exists between Exchangor and Larcan TTC, arising out of the
purchase of a transmitter in 1994. The matter has been referred to insurance
carrier, Cincinnati Insurance Company.
SCHEDULE 3.17
Compliance Matters
Schedule 3.17 -- Compliance with Laws
To the best of Exchangor's knowledge, it has complied in all material respects
with the Licenses and all federal, state and local laws, rules, regulations,
and ordinances applicable to it. Further, 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 entity.
SCHEDULE 8.2(g)
Form of Opinions of Exchangor's Counsel (First Closing)
SCHEDULE 8.2(g)
SELLER'S OPINION
1. Exchangor is a corporation duly organized and in good standing
under the laws of the State of Alabama.
2. Exchangor has full corporate power and authority to execute,
deliver and perform the Purchase Agreement and the other Transaction Documents
[Transaction Documents shall mean the documents executed and delivered at
Closing] to which it is a party. Exchangor's execution, delivery, and
performance of the Purchase Agreement and the other Transaction Documents to
which it is a party have been duly and validly authorized by all necessary
corporate action on the part of Exchangor.
3. The Purchase Agreement and each of the other Transaction
Documents to which Exchangor is a party have been duly executed and delivered
by Exchangor and constitute the valid and binding obligation of Exchangor,
enforceable against Exchangor in accordance with their respective terms subject
to (i) bankruptcy, insolvency, reorganization, moratorium and other similar
laws now or hereinafter in effect relating to creditors' rights and (ii) the
possibility that the remedies of specific performance or injunctive or other
forms of equitable relief may be subject to certain equitable defenses and to
the discretion of the court before which any proceeding therefor may be
brought.
4. The execution, delivery and performance by Exchangor of the
Purchase Agreement and the other Transaction Documents to which Exchangor is a
party (a) do not require the consent of any third party under any of the
Exchangor Agreements [Exchangor Agreements shall mean such agreements that are
certified by Exchangor to Exchangor's counsel to be material to the operation of
the business of Exchangor or the transactions contemplated by the Purchase
Agreement], other than consents set forth on Schedule 3.3 of the Purchase
Agreement; (b) do not violate Applicable Law [Applicable Law means those laws
and regulations that a lawyer exercising customary professional diligence would
recognize as being applicable to the transactions contemplated by the
Transaction Documents] or any law, judgment, order, injunction, decree, which
is applicable to Exchangor and known to us; (c) do not, either alone or with
the giving of notice or the passage of time or both, conflict with, constitute
grounds for termination of, or result in a breach of the terms, conditions or
provisions of, or constitute a default under any of the Exchangor Agreements;
and (d) do not result in the creation of any lien, charge or encumbrance on any
of the Assets pursuant to the terms of any of the Exchangor Agreements.
- 2 -
5. All bills of sale, assignments, and other conveyancing
documents delivered by Exchangor to Buyer on the date hereof are in proper form
to convey and assign all of Exchangor's right, title and interest in and to the
Tangible Personal Property to Buyer.
6. The Licenses listed on Exhibit A hereto (the "FCC Licenses")
were validly issued to Exchangor, are in full force and effect and are not
subject to any condition other than such conditions that are set forth in the
FCC Licenses.
Opinion 6 to be provided by Exchangor's FCC counsel.
SCHEDULE 8.3(d)
Form of Opinions of Recipient's Counsel (First Closing)
SCHEDULE 8.3(d)
BUYER'S OPINION
1. Recipient is a corporation duly organized and in good standing
under the laws of the State of ________________.
2. Recipient has full corporate power and authority to execute,
deliver and perform the Exchange Agreement and the other Transaction Documents
[Transaction Documents shall mean the documents executed and delivered at
Closing] to which it is a party. Recipient's execution, delivery, and
performance of the Purchase Agreement and the other Transaction Documents to
which it is a party have been duly and validly authorized by all necessary
corporate action on the part of Recipient.
3. The Purchase Agreement and each of the other Transaction
Documents to which Recipient is a party have been duly executed and delivered by
Recipient and constitute the valid and binding obligation of Recipient,
enforceable against Recipient in accordance with their respective terms subject
to (i) bankruptcy, insolvency, reorganization, moratorium and other similar laws
now or hereinafter in effect relating to creditors' rights and (ii) the
possibility that the remedies of specific performance or injunctive or other
forms of equitable relief may be subject to certain equitable defenses and to
the discretion of the court before which any proceeding therefor may be brought.
4. The execution, delivery and performance by Recipient of the
Purchase Agreement and the other Transaction Documents to which it is a party
(a) do not require the consent of any third party under any of the Recipient
Agreements [Recipient Agreements shall mean such agreements that are certified
by Recipient to Recipient's counsel to be material to the operation of
Recipient's business or the transactions contemplated by the Purchase
Agreement]; (b) do not violate any provisions of Recipient's corporate charter
or bylaws; (c) do not violate any Applicable Law [Applicable Law means those
laws and regulations that a lawyer exercising customary professional diligence
would recognize as being applicable to the transactions contemplated by the
Transaction Documents], or judgment, order, injunction, or decree, which is
applicable to Recipient and known to us; and (d) do not, either alone or with
the giving of notice or the passage of time or both, conflict with, constitute
grounds for termination of, or result in a breach of the terms, conditions or
provisions of, or constitute a default under any of the Buyer Agreements.
SCHEDULE 10.2(d)
Form of Opinions of Exchangor's Counsel (Second Closing)
SCHEDULE 10.2(d)
EXCHANGOR'S OPINION
1. Exchangor is a corporation duly organized and in good standing
under the laws of the State of Alabama.
2. Exchangor has full corporate power and authority to execute,
deliver and perform the Purchase Agreement and the other Transaction Documents
[Transaction Documents shall mean the documents executed and delivered at
Closing] to which it is a party. Exchangor's execution, delivery, and
performance of the Purchase Agreement and the other Transaction Documents to
which it is a party have been duly and validly authorized by all necessary
corporate action on the part of Exchangor.
3. The Purchase Agreement and each of the other Transaction
Documents to which Exchangor is a party have been duly executed and delivered
by Exchangor and constitute the valid and binding obligation of Exchangor,
enforceable against Exchangor in accordance with their respective terms
subject to (i) bankruptcy, insolvency, reorganization, moratorium and other
similar laws now or hereinafter in effect relating to creditors' rights and
(ii) the possibility that the remedies of specific performance or injunctive
or other forms of equitable relief may be subject to certain equitable
therefor defenses and to the discretion of the court before which any
proceeding may be brought.
4. The execution, delivery and performance by Exchangor of the
Purchase Agreement and the other Transaction Documents to which Exchangor is a
party (a) do not require the consent of any third party under any of the
Exchangor Agreements [Exchangor Agreements shall mean such agreements that are
certified by Exchangor to Exchangor's counsel to be material to the operation
of the business of Exchangor or the transactions contemplated by the Purchase
Agreement], other than consents set forth on Schedule 3.3 of laws and
regulations that a lawyer exercising customary professional diligence would
recognize as being applicable to the transactions contemplated by the
Transaction Documents] or any law, judgment, order, injunction, decree, which
is applicable to Exchangor and known to us; (c) do not, either alone or with
the giving of notice or the passage of time or both, conflict with, constitute
grounds for termination of, or result in a breach of the terms, conditions or
provisions of, or constitute a default under any of the Exchangor Agreements;
and (d) do not result in the creation of any lien, charge or encumbrance on any
of the Assets pursuant to the terms of any of the Exchangor Agreements.
- 2 -
5. All bills of sale, assignments, and other conveyancing
documents delivered by Exchangor to Buyer on the date hereof are in proper form
to convey and assign all of Exchangor's right, title, and interest in and to
the Tangible Personal Property to Buyer.
6. The Licenses listed on Exhibit A hereto (the "FCC Licenses")
were validly issued to Exchangor, are in full force and effect and are not
subject to any condition other than such conditions that are set forth in the
FCC Licenses.
7. The FCC has granted its consent to the assignment of the FCC
Licenses from Exchangor to Buyer (the "FCC Consent"). To the best of the our
knowledge based solely on a review of the FCC's files and records and the
Officer's Certificate, the FCC Consent has not been reversed, stayed, enjoined,
set aside, annulled or suspended, no requests have been filed for
administrative or judicial review, reconsideration, appeal or stay of the FCC
Consent, and the time periods for filing any such requests and for the FCC to
set aside the FCC Consent on its own motion have expired.
Opinion 6-7 to be provided by Exchangor's FCC counsel.
SCHEDULE 10.3(d)
Form of Opinions of Recipient Counsel (Second Closing)
SCHEDULE 10.3(d)
RECIPIENT'S OPINION
1. Recipient is a corporation duly organized and in good standing
under the laws of the State of Florida.
2. Recipient has full corporate power and authority to execute,
deliver and perform the Exchange Agreement and the other Transaction Documents
[Transaction Documents shall mean the documents executed and delivered at
Closing] to which it is a party. Recipient's execution, delivery, and
performance of the Purchase Agreement and the other Transaction Documents to
which it is a party have been duly and validly authorized by all necessary
corporate action on the part of Recipient.
3. The Purchase Agreement and each of the other Transaction
Documents to which Recipient is a party have been duly executed and delivered by
Recipient and constitute the valid and binding obligation of Recipient,
enforceable against Recipient in accordance with their respective terms subject
to (i) bankruptcy, insolvency, reorganization, moratorium and other similar
laws now or hereinafter in effect relating to creditors' rights and (ii) the
possibility that the remedies of specific performance of injunctive or other
forms of equitable relief may be subject to certain equitable defenses and to
the discretion of the court before which any proceeding therefor may be
brought.
4. The execution, delivery and performance by Recipient of the
Purchase Agreement and the other Transaction Documents to which it is a party
(a) do not require the consent of any third party under any of the Recipient
Agreements [Recipient Agreements shall mean such agreements that are certified
by Recipient to Recipient's counsel to be material to the operation of
Recipient's business or the transactions contemplated by the Purchase
Agreement]; (b) do not violate any provisions of Recipient's corporate charter
or bylaws; (c) do not violate any Applicable Law [Applicable Law means those
laws and regulations that a lawyer exercising customary professional diligence
would recognize as being applicable to the transactions contemplated by the
Transaction Documents], or judgment, order, injunction, or decree, which is
applicable to Recipient and known to us; and (d) do not, either alone or with
the giving of notice or the passage of time or both, conflict with, constitute
grounds for termination of, or result in a breach of the terms, conditions or
provisions of, or constitute a default under any of the Buyer Agreements.
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resolve the dispute within thirty (30) days. The accountant's resolutions of
the dispute shall be final and binding on the parties, and a judgment may be
entered thereon in any court of competent jurisdiction.
2.4 Payment of Purchase Price.
(a) At the Closing, Buyer shall pay to Seller the
Purchase Price adjusted pursuant to Section 2.3(a) hereof by federal wire
transfer of immediately available funds pursuant to wire instructions delivered
by Seller at least two (2) Business Days prior to the Closing Date.
(b) If as a result of the final determination of the
adjustments to the Purchase Price pursuant to Section 2.3(c) following the
Closing, (i) Buyer is determined to owe an amount to Seller, Buyer shall pay
such amount to Seller in immediately available funds within five (5) Business
Days of the date of such final determination or (ii) Seller is determined to
owe an amount to Buyer, Seller shall pay such amount to Buyer in immediately
available funds within five (5) Business Days of the date of such final
determination.
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 to the extent that
either (i) the obligations and liabilities relate to the period from and after
the Closing Date or (ii) the Purchase Price was reduced pursuant to Section
2.3(a) hereof as a result of the proration of such obligations and liabilities.
Buyer shall not assume any other obligations or liabilities of Seller,
including (i) any obligations or liabilities under any Contract, (ii) any
claims or pending litigation or proceedings relating to the operation of the
Station prior to the Closing, (iii) any obligations or liabilities of Seller
under any employee pension, retirement, or other benefit plans or with respect
to commissions, wages, bonuses, incentive payments, vacation pay, sick leave,
severance benefits, or other benefits of employees or former employees of
Seller or their beneficiaries, (iv) any obligations or liabilities of Seller
with respect to any Excluded Assets, or (v) any obligations or liabilities
caused by, arising out of, or resulting from any action or omission of Seller
prior to the Closing.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Standing. Seller is a corporation duly organized, validly
existing, and in good standing under the laws of Wyoming. Seller has all
requisite corporate 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
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Dates Referenced Herein and Documents Incorporated by Reference
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