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 10.100
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ASSET PURCHASE AGREEMENT
BY AND BETWEEN
PAXSON COMMUNICATIONS OF
DAYTON-26, INC.
AND
CHANNEL 26 OF DAYTON, INC.
* * *
APRIL 18, 1996
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Accounts Receivable" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Affiliation Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assumed Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Consents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Consent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Final Order" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"HSR Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Intangibles" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Loan Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Real Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Tangible Personal Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Time Brokerage Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2. PURCHASE AND SALE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Agreement to Sell and Buy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Excluded Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.4 Payment of Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.5 Assumption of Liabilities and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1 Organization, Standing, and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4 Governmental Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.5 Title to and Condition of Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.6 Title to and Condition of Tangible Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.7 Assumed Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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3.8 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.9 Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.10 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.11 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.12 Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.14 Claims and Legal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.15 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.17 Conduct of Business in Ordinary Course . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.18 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.19 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.20 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.1 Organization, Standing, and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.4 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.5 Buyer Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.6 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.2 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.3 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.4 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.5 Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.6 Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.7 Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.8 No Inconsistent Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.9 Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.10 Maintenance of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.11 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.12 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.13 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.14 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.15 Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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5.17 Financing Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.18 Programming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.19 Preservation of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.20 Collection of Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.1 FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.2 Control of the Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.3 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.5 Environmental Audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.6 Engineering Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.7 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.8 Bulk Sales Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.9 Title Insurance and Surveys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.10 Sales Tax Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.11 Access to Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.12 Appraisal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.13 Buyer Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.14 HSR Act Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT CLOSING . . . . . . . . . . . . . . . . . . . . . . . . 22
7.1 Conditions to Obligations of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.2 Conditions to Obligations of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8. CLOSING AND CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.2 Deliveries by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.3 Deliveries by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 9. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.1 Termination by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.2 Termination by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.3 Rights on Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.4 Survival of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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10.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.2 Indemnification by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.3 Indemnification by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.4 Procedure for Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.5 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.6 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.1 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.2 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.4 Benefit and Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.5 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.8 Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.9 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.10 Waiver of Compliance; Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.11 Press Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.12 Consent to Jurisdiction and Service of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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LIST OF SCHEDULES
[Download Table]
Exhibit A -- Affiliation Agreement
Schedule 2.2 -- Excluded Assets
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 3.10 -- Insurance
Schedule 3.12 -- Employee Matters
Schedule 3.14 -- Litigation
Schedule 8.2(i) -- Opinion of Seller's Counsel
Schedule 8.3(d) -- Opinion of Buyer's Counsel
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is dated as of the 18th day of April,
1996, by and between Paxson Communications of Dayton-26 , Inc., a Florida
corporation ("Buyer"), and Channel 26 of Dayton, Inc., a Florida corporation
("Seller").
R E C I T A L S
A. Seller and Buyer are parties to an Option Agreement dated as
of October 6, 1995 (the "Option Agreement"), pursuant to which Seller granted
to Buyer an option (the "Option") to acquire from Seller substantially all of
the assets used or useful in the business or operations of Television Station
WTJC(TV), Springfield, Ohio (the "Station").
B. In accordance with the Option Agreement, Buyer has notified
Seller that Buyer intends to exercise the Option.
C. Seller desires to sell, and Buyer desires to buy,
substantially all the assets that are used or useful in the business or
operations of the Station, for the price and on the terms and conditions set
forth in this Agreement.
A G R E E M E N T S
In consideration of the above recitals and of the mutual agreements
and covenants contained in this Agreement, Buyer and Seller, intending to be
bound legally, agree as follows:
SECTION 1. DEFINITIONS
The following terms, as used in this Agreement, shall have the
meanings set forth in this Section:
"Accounts Receivable" means the rights of Seller to payment for the
sale of advertising or programming time (i) run on the Station by Seller prior
to the Closing Date or (ii) run on the Station prior to the date that Seller
acquired the Station.
"Affiliation Agreement" means the Affiliation Agreement in the form of
Exhibit A hereto to be entered into upon the Closing by Buyer and The Christian
Network, Inc.
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Buyer under this Agreement, as specified in Section 2.1.
"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7
that are designated as Contracts that are to be assumed by Buyer upon its
purchase of the Station and (ii) any Contracts
entered into by Seller between the date of this Agreement and the Closing Date
that Buyer agrees in writing to assume.
"Closing" means the consummation of the purchase and sale of the
Assets pursuant to this Agreement in accordance with the provisions of Section
8.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to Buyer
or otherwise to consummate the transactions contemplated by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses,
and other agreements (including leases for personal or real property and
employment agreements), written or oral (including any amendments and other
modifications thereto) to which Seller is a party or which are binding upon
Seller and which relate to or affect the Assets or the business or operations
of the Station, and (i) which are in effect on the date of this Agreement or
(ii) which are entered into by Seller between the date of this Agreement and
the Closing Date.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the
assignment of the FCC Licenses to Buyer as contemplated by this Agreement.
"FCC Licenses" means all Licenses issued by the FCC to Seller in
connection with the business or operations of the Station.
"Final Order" means an action by the FCC that has not been reversed,
stayed, enjoined, set aside, annulled, or suspended, and with respect to which
no requests are pending for administrative or judicial review, reconsideration,
appeal, or stay, and the time for filing any such requests and the time for the
FCC to set aside the action on its own motion have expired.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Intangibles" means all copyrights, trademarks, trade names, service
marks, service names, licenses, patents, permits, jingles, proprietary
information, technical information and data, machinery and equipment
warranties, and other similar intangible property rights and interests (and any
goodwill associated with any of the foregoing) applied for, issued to, or owned
by Seller or under which Seller is licensed or franchised and which are used or
useful in the
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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 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 October 6,
1995, between Buyer and Seller.
"Note" means the Promissory Note dated October 6, 1995, in the
principal amount of $3,500,000, delivered by Seller to Buyer pursuant to the
Loan Agreement.
"Purchase Price" means the purchase price specified in Section 2.3.
"Real Property" means all real property and interests in real
property, including fee estates, leaseholds and subleaseholds, purchase
options, easements, licenses, rights to access, and rights of way, and all
buildings and other improvements thereon, and other real property interests
which are used or useful in the business or operations of the Station, together
with any additions thereto between the date of this Agreement and the Closing
Date.
"Tangible Personal Property" means all machinery, equipment, tools,
vehicles, furniture, leasehold improvements, office equipment, plant,
inventory, spare parts, and other tangible personal property which is used or
useful in the conduct of the business or operations of the Station, together
with any additions thereto between the date of this Agreement and the Closing
Date.
"Time Brokerage Agreement" means the Time Brokerage Agreement dated as
of October 6, 1995, between Seller and Buyer.
SECTION 2. PURCHASE AND SALE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and
conditions set forth in this Agreement, Seller hereby agrees to sell, transfer,
and deliver to Buyer on the Closing Date, and Buyer agrees to purchase, all of
the tangible and intangible assets used or useful in connection with the
conduct of the business or operations of the Station, together with any
additions thereto between the date of this Agreement and the Closing Date, but
excluding the assets described in Section 2.2, free and clear of any claims,
liabilities, security interests, mortgages, liens, pledges, conditions,
charges, or encumbrances of any nature whatsoever (except for encumbrances
permitted by Section 5.5 herein), including the following:
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(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles and all other intangible assets
of Seller relating to the Station that are not specifically included within the
Intangibles, including the goodwill of the Station, if any, except for any
lists of donors, contributors or other supporters of the Station;
(f) All of Seller's proprietary information,
technical information and data, machinery and equipment warranties, maps,
computer discs and tapes, plans, diagrams, blueprints, and schematics,
including filings with the FCC relating to the business and operation of the
Station;
(g) The Accounts Receivable as of 11:59 p.m., local
time, on the day prior to the Closing Date;
(h) All choses in action of Seller relating to the
Station; and
(i) All books and records relating to the business
or operations of the Station, including executed copies of the Assumed
Contracts, and all records required by the FCC to be kept by the Station.
2.2 Excluded Assets. The Assets shall exclude the
following assets:
(a) Seller's cash on hand as of the Closing and all
other cash in any of Seller's bank or savings accounts; any insurance policies,
letters of credit, or other similar items and cash surrender value in regard
thereto; and any stocks, bonds, certificates of deposit and similar
investments;
(b) All books and records that Seller is required
by law to retain and that pertain to Seller's corporate organization;
(c) Any pension, profit-sharing, or employee
benefit plans, and any collective bargaining agreements;
(d) All property listed on Schedule 2.2 hereto; and
(e) All lists of donors, contributors or other
supporters of the Station.
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2.3 Purchase Price. The Purchase Price for the Assets
shall be (i) One Hundred Thousand Dollars ($100,000), adjusted as provided in
Section 2.3(a) below, payable in cash at the Closing and (ii) the forgiveness
on the Closing Date of all principal, accrued but unpaid interest, fees,
expenses and other charges owed by Seller to Buyer as of the Closing Date
pursuant to the Loan Agreement and the Note.
(a) Prorations. The Purchase Price shall be
increased or decreased as required to effectuate the proration of expenses,
other than expenses for which Buyer is obligated to reimburse Seller under the
Time Brokerage Agreement, for which no proration shall be required. All
expenses arising from the operation of the Station, including business and
license fees, utility charges, real and personal property taxes and assessments
levied against the Assets, property and equipment rentals, applicable copyright
or other fees, sales and service charges, taxes (except for taxes arising from
the transfer of the Assets under this Agreement), FCC regulatory fees, and
similar prepaid and deferred items, shall be prorated between Buyer and Seller
in accordance with the principle that Seller shall be responsible for all
expenses, costs, and liabilities allocable to the period prior to the Closing
Date, other than expenses for which Buyer is obligated to reimburse Seller
under the Time Brokerage Agreement, and Buyer shall be responsible for all
expenses, costs, and obligations allocable to the period on and after the
Closing Date. Notwithstanding the preceding sentence, there shall be no
adjustment for, and Seller shall remain solely liable with respect to, any
Contracts not included in the Assumed Contracts and any other obligation or
liability not being assumed by Buyer in accordance with Section 2.5.
(b) Manner of Determining Adjustments. Any
adjustments will, insofar as feasible, be determined and paid on the Closing
Date, with final settlement and payment by the appropriate party occurring no
later than ninety (90) days after the Closing Date or such other date as the
parties shall mutually agree upon.
2.4 Payment of Purchase Price. The cash portion of the
Purchase Price, as adjusted, shall be paid by Buyer to Seller at Closing by
wire transfer of same-day funds pursuant to wire instructions which shall be
delivered by Seller to Buyer, at least two days prior to the Closing Date.
2.5 Assumption of Liabilities and Obligations. As of the
Closing Date, Buyer shall assume and undertake to pay, discharge, and perform
all obligations and liabilities of Seller under the Licenses and the Assumed
Contracts insofar as they relate to the time on and after the Closing Date, and
arise out of events related to Buyer's ownership of the Assets or its operation
of the Station on or after the Closing Date. Buyer shall not assume any other
obligations or liabilities of Seller, including (i) any obligations or
liabilities under any Contract not included in the Assumed Contracts, (ii) any
obligations or liabilities under the Assumed Contracts relating to the period
prior to the Closing Date, (iii) any claims or pending litigation or
proceedings relating to the operation of the Station prior to the Closing, (iv)
any obligations or liabilities arising under
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capitalized leases or other financing agreements not assumed by Buyer, (v) any
obligations or liabilities arising under agreements entered into other than in
the ordinary course of business, (vi) any obligations or liabilities of Seller
under any employee pension, retirement, or other benefit plans or collective
bargaining agreements, (vii) any obligation to any employee of the Station for
severance benefits, vacation time, or sick leave accrued prior to the Closing
Date, or (viii) any obligations or liabilities caused by, arising out of, or
resulting from any action or omission of Seller prior to the Closing, and all
such obligations and liabilities shall remain and be the obligations and
liabilities solely of Seller.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization, Standing, and Authority. Seller is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Florida and is duly qualified and in good standing under
the laws of the State of Ohio. Seller has all requisite power and authority
(i) to own, lease, and use the Assets as now owned, leased, and used, (ii) to
conduct the business and operations of the Station as now conducted, and (iii)
to execute and deliver this Agreement and the documents contemplated hereby,
and to perform and comply with all of the terms, covenants, and conditions to
be performed and complied with by Seller hereunder. Seller is not a
participant in any joint venture or partnership with any other person or entity
with respect to any part of the operations of the Station or any of the Assets.
3.2 Authorization and Binding Obligation. The execution,
delivery, and performance of this Agreement by Seller have been duly authorized
by all necessary actions on the part of Seller and its shareholder. This
Agreement has been duly executed and delivered by Seller and constitutes the
legal, valid, and binding obligation of Seller, enforceable against it in
accordance with its terms, except as the enforceability of this Agreement may
be affected by bankruptcy, insolvency, or similar laws affecting creditors'
rights generally, and by judicial discretion in the enforcement of equitable
remedies.
3.3 Absence of Conflicting Agreements. Subject to
obtaining the Consents listed on Schedule 3.3, the execution, delivery, and
performance of this Agreement and the documents contemplated hereby (with or
without the giving of notice, the lapse of time, or both): (i) do not require
the consent of any third party; (ii) will not conflict with any provision of
the Articles of Incorporation or Bylaws of Seller; (iii) will not conflict
with, result in a breach of, or constitute a default under, any law, judgment,
order, ordinance, injunction, decree, rule, regulation, or ruling of any court
or governmental instrumentality; (iv) will not conflict with, constitute
grounds for termination of, result in a breach of, constitute a default under,
or accelerate or permit the acceleration of any performance required by the
terms of, any agreement, instrument, license, or permit to which Seller is a
party or by which Seller may be bound; and (v) will not create any
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claim, liability, mortgage, lien, pledge, condition, charge, or encumbrance of
any nature whatsoever upon any of the Assets.
3.4 Governmental Licenses. Schedule 3.4 includes a true
and complete list of the Licenses. Seller has delivered to Buyer true and
complete copies of the Licenses (including any amendments and other
modifications thereto). The Licenses have been validly issued, and Seller is
the authorized legal holder thereof. The Licenses listed on Schedule 3.4
comprise all of the licenses, permits, and other authorizations required from
any governmental or regulatory authority for the lawful conduct of the business
and operations of the Station in the manner and to the full extent they are now
conducted, and none of the Licenses is subject to any restriction or condition
that would limit the full operation of the Station as now operated. The
Licenses are in full force and effect, and the conduct of the business and
operations of the Station is in accordance therewith in all material respects.
Seller has no reason to believe that any of the Licenses would not be renewed
by the FCC or other granting authority in the ordinary course. The Station's
city of license, as determined by the FCC, is located within the Dayton, Ohio
Area of Dominant Influence as defined by the 1991-1992 Area of Dominant
Influence Market Guide published by The Arbitron Co. and the Dayton, Ohio
Designated Market Area as defined by the 1995 United States Television
Household Estimates published by Nielsen Media Research. To the best of
Seller's knowledge, on or before June 17, 1993, the Station made a valid
election of must carry with respect to each cable system located within the
Station's Area of Dominant Influence. Except as disclosed on Schedule 3.4, no
cable system on which the Station is entitled to must carry status has advised
the Station of any signal quality or copyright indemnity or other prerequisite
to cable carriage of the Station's signal, and no cable system has declined or
threatened to decline such carriage or failed to respond to a request for
carriage or sought any form of relief from carriage from the FCC.
3.5 Title to and Condition of Real Property. Schedule 3.5
contains a complete and accurate description of all the Real Property and
Seller's interests therein. The Real Property listed on Schedule 3.5 comprises
all real property interests necessary to conduct the business and operations of
the Station as now conducted. Seller has good and marketable fee simple title,
insurable at standard rates, to all fee estates (including the improvements
thereon) included in the Real Property, free and clear of all liens, mortgages,
pledges, covenants, easements, restrictions, encroachments, leases, charges,
and other claims and encumbrances of any nature whatsoever, and without
reservation or exclusion of any mineral, timber, or other rights or interests,
except for liens for real estate taxes not yet due and payable and liens
disclosed on Schedule 3.5. With respect to each leasehold or subleasehold
interest included in the Real Property being conveyed under this Agreement, so
long as Seller fulfills its obligations under the lease therefor, Seller has
enforceable rights to nondisturbance and quiet enjoyment, and, to the best of
Seller's knowledge, no third party holds any interest in the leased premises
with the right to foreclose upon Seller's leasehold or subleasehold interest.
All towers, guy anchors, and buildings and other improvements included in the
Assets are located entirely on the Real Property listed in Schedule 3.5.
Seller has delivered to Buyer true and complete copies of all deeds pertaining
to
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the Real Property. All Real Property (including the improvements thereon) (i)
is in good condition and repair consistent with its present use, (ii) is
available for immediate use in the conduct of the business and operations of
the Station, and (iii) complies in all material respects with all applicable
building or zoning codes and the regulations of any governmental authority
having jurisdiction. Seller has full legal and practical access to the Real
Property. All easements, rights-of-way, and real property licenses affecting
or constituting part of the Real Property have been properly recorded in the
appropriate public recording offices.
3.6 Title to and Condition of Tangible Personal Property.
Schedule 3.6 lists all material items of Tangible Personal Property. The
Tangible Personal Property listed on Schedule 3.6 comprises all material items
of tangible personal property necessary to conduct the business and operations
of the Station as now conducted. Except as described in Schedule 3.6, Seller
owns and has good title to each item of Tangible Personal Property, and none of
the Tangible Personal Property owned by Seller is subject to any security
interest, mortgage, pledge, conditional sales agreement, or other lien or
encumbrance, except for encumbrances permitted by Section 5.5 herein. Each
item of Tangible Personal Property is available for immediate use in the
business and operations of the Station. All items of transmitting and studio
equipment included in the Tangible Personal Property (i) have been maintained
in a manner consistent with generally accepted standards of good engineering
practice, and (ii) will permit the Station and any auxiliary broadcast stations
used in the operation of the Station to operate, in all material respects, in
accordance with the terms of the FCC Licenses and the rules and regulations of
the FCC, and with all other applicable federal, state, and local statutes,
ordinances, rules, and regulations.
3.7 Assumed Contracts. Schedule 3.7 is a true and
complete list of all Contracts. Seller has delivered to Buyer true and
complete copies of all written Contracts, true and complete memoranda of all
oral Contracts (including any amendments and other modifications to such
Contracts). Other than the Contracts listed on Schedule 3.7 or any other
Schedule to this Agreement, Seller requires no contract, lease, or other
agreement to enable it to carry on its business as now conducted. All of the
Assumed Contracts are in full force and effect, and are valid, binding, and
enforceable in accordance with their terms. There is not under any Assumed
Contract any default by any party thereto or any event that, after notice or
lapse of time or both, could constitute a default. Seller is not aware of any
intention by any party to any Assumed Contract (i) to terminate such contract
or amend the terms thereof, (ii) to refuse to renew the Assumed Contract upon
expiration of its term, or (iii) to renew the Assumed Contract upon expiration
only on terms and conditions which are more onerous than those now existing.
Except for the need to obtain the Consents listed in Schedule 3.3, Seller has
full legal power and authority to assign its rights under the Assumed Contracts
to Buyer in accordance with this Agreement, and such assignment will not affect
the validity, enforceability, or continuation of any of the Assumed Contracts.
- 8 -
3.8 Consents. Except for the FCC Consent provided for in
Section 6.1, the other Consents described in Schedule 3.3, and any filing
required under the HSR Act, no consent, approval, permit, or authorization of,
or declaration to or filing with any governmental or regulatory authority, or
any other third party is required (i) to consummate this Agreement and the
transactions contemplated hereby, (ii) to permit Seller to assign or transfer
the Assets to Buyer, or (iii) to enable Buyer to conduct the business and
operations of the Station in essentially the same manner as such business and
operations are now conducted.
3.9 Intangibles. Schedule 3.9 is a true and complete list
of all Intangibles (exclusive of those listed in Schedule 3.4), all of which
are valid and in good standing and uncontested. Seller has delivered to Buyer
copies of all documents establishing or evidencing all Intangibles. To the
best knowledge of Seller, Seller is not infringing upon or otherwise acting
adversely to any trademarks, trade names, service marks, service names,
copyrights, patents, patent applications, know-how, methods, or processes owned
by any other person or persons, and there is no claim or action pending, or to
the knowledge of Seller threatened, with respect thereto. The Intangibles
listed on Schedule 3.9 comprise all intangible property interests necessary to
conduct the business and operations of the Station as now conducted.
3.10 Insurance. Schedule 3.10 is a true and complete list
of all insurance policies of Seller that insure any part of the Assets or the
business of the Station. All policies of insurance listed in Schedule 3.10 are
in full force and effect. The insurance policies listed in Schedule 3.10 are
adequate in amount with respect to, and for the full value (subject to
customary deductibles) of, the Assets, and insure the Assets and the business
of the Station against all customary and foreseeable risks. During the past
three years, no insurance policy of Seller on the Assets or the Station has
been canceled by the insurer and no application of Seller for insurance has
been rejected by any insurer.
3.11 Reports. All Station returns, reports, and statements
required to be filed by Seller with the FCC or with any other governmental
agency have been filed, and all reporting requirements of the FCC and other
governmental authorities having jurisdiction over Seller and the Station have
been complied with by Seller in all material respects. All of such returns,
reports, and statements are substantially complete and correct as filed.
Seller has timely paid to the FCC all annual regulatory fees required to be
paid by Seller with respect to the FCC Licenses.
3.12 Personnel.
(a) Employees and Compensation. Schedule 3.12
contains a true and complete list of all employees of the Station, their job
titles, date of hire and current salary. Schedule 3.12 also contains a true
and complete list as of the date of this Agreement of all employee benefit
plans or arrangements applicable to the employees of the Station and all fixed
or contingent liabilities or obligations of Seller with respect to any person
now or formerly
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employed by Seller at the Station, including pension or thrift plans,
individual or supplemental pension or accrued compensation arrangements,
contributions to hospitalization or other health or life insurance programs,
incentive plans, bonus arrangements, and vacation, sick leave, disability and
termination arrangements or policies, including workers' compensation policies.
Seller has furnished Buyer with true and complete copies of all employee
handbooks, employee rules and regulations, and summary plan descriptions of the
written plans and arrangements listed in Schedule 3.12, and with descriptions
of the unwritten plans and arrangements listed in Schedule 3.12. At Buyer's
request, Seller will furnish Buyer with true and complete copies of all
applicable plan documents, trust documents, and insurance contracts with
respect to the plans and arrangements listed on Schedule 3.12. All employee
benefits and welfare plans or arrangements listed in Schedule 3.12 were
established and have been executed, managed and administered in accordance with
the Internal Revenue Code of 1986, as amended, the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and all other laws. Seller is not
aware of the existence of any governmental audit or examination of any of such
plans or arrangements or of any facts which would lead it to believe that any
such audit or examination is pending or threatened. No action, suit, or claim
with respect to any of such plans or arrangements (other than routine claims
for benefits) is pending or, to the knowledge of Seller, threatened, and Seller
possesses no knowledge of any facts which could give rise to any such action,
suit or claim.
(b) Labor Relations. Seller is not a party to or
subject to any collective bargaining agreements with respect to the Station.
Seller has no written or oral contracts of employment with any employee of the
Station, other than those listed in Schedule 3.7. Seller has complied with all
laws, rules, and regulations relating to the employment of labor, including
those related to wages, hours, collective bargaining, occupational safety,
discrimination, and the payment of social security and other payroll related
taxes, and it has not received any notice alleging that it has failed to comply
in any material respect with any such laws, rules, or regulations. No
controversies, disputes, or proceedings are pending or, to the best of its
knowledge, threatened, between it and any employee (singly or collectively) of
the Station. No labor union or other collective bargaining unit represents or
claims to represent any of the employees of the Station. To Seller's
knowledge, there is no union campaign being conducted to solicit cards from
employees to authorize a union to request a National Labor Relations Board
certification election with respect to any employees at the Station.
(c) Liabilities. Seller has no liability of any
kind to or in respect of any employee benefit plan, including withdrawal
liability under Section 4201 of ERISA. Seller has not incurred any accumulated
funding deficiency within the meaning of ERISA or Section 4971 of the Internal
Revenue Code. Seller has not failed to make any required contributions to any
employee benefit plan. The Pension Benefit Guaranty Corporation has not
asserted that Seller has incurred any liability in connection with any such
plan. No lien has been attached and no person has threatened to attach a lien
on any property of Seller as a result of a failure to comply with ERISA.
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3.13 Taxes. Seller has filed or caused to be filed all
federal income tax returns and all other federal, state, county, local, or city
tax returns which are required to be filed, and it has paid or caused to be
paid all taxes shown on those returns or on any tax assessment received by it
to the extent that such taxes have become due, or has set aside on its books
adequate reserves (segregated to the extent required by generally accepted
accounting principles) with respect thereto. There are no governmental
investigations or other legal, administrative, or tax proceedings pursuant to
which Seller is or could be made liable for any taxes, penalties, interest, or
other charges, the liability for which could extend to Buyer as transferee of
the business of the Station, and, to the best knowledge of Seller, no event
has occurred that could impose on Buyer any transferee liability for any taxes,
penalties, or interest due or to become due from Seller.
3.14 Claims and Legal Actions. Except for any FCC
rulemaking proceedings generally affecting the broadcasting industry or as
listed on Schedule 3.14 attached hereto, there is no claim, legal action,
counterclaim, suit, arbitration, governmental investigation or other legal,
administrative, or tax proceeding, nor any order, decree or judgment, in
progress or pending, or to the knowledge of Seller threatened, against or
relating to Seller with respect to its ownership or operation of the Station or
otherwise relating to the Assets or the business or operations of the Station,
nor does Seller know or have reason to be aware of any basis for the same. In
particular, but without limiting the generality of the foregoing, there are no
applications, complaints or proceedings pending or, to the best of its
knowledge, threatened (i) before the FCC relating to the business or operations
of the Station other than rule making proceedings which affect the television
industry generally, (ii) before any federal or state agency relating to the
business or operations of the Station involving charges of illegal
discrimination under any federal or state employment laws or regulations, or
(iii) before any federal, state, or local agency relating to the business or
operations of the Station involving zoning issues under any federal, state, or
local zoning law, rule, or regulation.
3.15 Environmental Matters.
(a) Seller has complied in all material respects
with all laws, rules, and regulations of all federal, state, and local
governments (and all agencies thereof) concerning the environment, public
health and safety, and employee health and safety, and no charge, complaint,
action, suit, proceeding, hearing, investigation, claim, demand, or notice has
been filed or commenced against Seller in connection with its ownership or
operation of the Station alleging any failure to comply with any such law,
rule, or regulation.
(b) To the best of Seller's knowledge, Seller has
no liability relating to its ownership and operation of the Station that could
reasonably be expected to have a material adverse effect on the business or
operations of the Station (and there is no basis related to the present
operations, properties, or facilities of Seller for any present or future
charge, complaint, action, suit, proceeding, hearing, investigation, claim, or
demand against Seller giving rise to any
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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 Seller's knowledge, Seller has
no liability relating to its ownership and operation of the Station that could
reasonably be expected to have a material adverse effect on the business or
operations of the Station (and Seller has not handled or disposed of any
substance, arranged for the disposal of any substance, or owned or operated any
property or facility in any manner that could form the basis for any present or
future charge, complaint, action, suit, proceeding, hearing, investigation,
claim, or demand (under the common law or pursuant to any statute) against
Seller giving rise to any such liability) for damage to any site, location, or
body of water (surface of subsurface) or for illness or personal injury.
(d) To the best of Seller's knowledge, Seller has
no liability relating to its ownership and operation of the Station that could
reasonably be expected to have a material adverse effect on the business or
operations of the Station (and there is no basis for any present or future
charge, complaint, action, suit, proceeding, hearing, investigation, claim, or
demand against Seller giving rise to any such liability) under any law, rule,
or regulation of any federal, state, or local government (or agency thereof)
concerning employee health and safety.
(e) To the best of Seller's knowledge, Seller has
no liability relating to its ownership and operation of the Station that could
reasonably be expected to have a material adverse effect on the business or
operations of the Station (and Seller has not exposed any employee to any
substance or condition that could form the basis for any present or future
charge, complaint, action, suit, proceeding, hearing, investigation, claim, or
demand (under the common law or pursuant to statute) against Seller giving rise
to any such liability) for any illness or personal injury to any employee.
(f) To the best of Seller's knowledge, in
connection with its ownership or operation of the Station, Seller has obtained
and been in compliance in all material respects with all of the terms and
conditions of all permits, licenses, and other authorizations which are
required under, and has complied with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules, and
timetables which are contained in, all federal, state, and local laws, rules,
and regulations (including all codes, plans, judgments, orders, decrees,
stipulations, injunctions, and charges thereunder) relating to public health
and safety, worker health and safety, and pollution or protection of the
environment, including laws relating to emissions, discharges, releases, or
threatened releases of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes into ambient air, surface water, ground
water, or lands or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, or chemical, industrial, hazardous, or toxic
materials or wastes.
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(g) No pollutant, contaminant, or chemical,
industrial, hazardous, or toxic material or waste has ever been manufactured,
buried, stored, spilled, leaked, discharged, emitted, or released by Seller in
connection with its ownership and operation of the Station or, to the best of
Seller's knowledge, by any other party on any Real Property.
3.16 Compliance with Laws. Seller has complied in all
material respects with the Licenses and all federal, state, and local laws,
rules, regulations, and ordinances applicable or relating to the ownership and
operation of the Station. Neither the ownership or use of the properties of
the Station nor the conduct of the business or operations of the Station
conflicts with the rights of any other person or entity.
3.17 Conduct of Business in Ordinary Course. Since October
6, 1995, Seller has conducted the business and operations of the Station only
in the ordinary course and has not:
(a) Suffered any material adverse change in the
assets or properties of the Station, including any damage, destruction, or loss
affecting any assets used or useful in the conduct of the business of the
Station;
(b) Made any sale, assignment, lease, or other
transfer of any of the Station's properties other than in the normal and usual
course of business with suitable replacements being obtained therefor;
(c) Canceled any debts owed to or claims held by
Seller with respect to the Station, except in the normal and usual course of
business;
(d) Suffered any material write-down of the value
of any Assets or any material write-off as uncollectible of any accounts
receivable of the Station; or
(e) Transferred or granted any right under, or
entered into any settlement regarding the breach or infringement of, any
license, patent, copyright, trademark, trade name, franchise, or similar right,
or modified any existing right relating to the Station.
3.18 Transactions with Affiliates. Seller has not been
involved in any business arrangement or relationship relating to the Station
with any affiliate of Seller, and no affiliate of Seller owns any property or
right, tangible or intangible, which is used in the business of the Station,
other than such arrangements and relationships between Seller and The Christian
Network, Inc. that have been disclosed to Buyer. As used in this paragraph,
"affiliate" has the meaning set forth in Rule 12b-2 promulgated under the
Securities and Exchange Act of 1934.
3.19 Broker. Neither Seller nor any person acting on
Seller's behalf has incurred any liability for any finders' or brokers' fees or
commissions in connection with the transactions contemplated by this Agreement.
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3.20 Full Disclosure. No representation or warranty made
by Seller in this Agreement or in any certificate, document, or other
instrument furnished or to be furnished by Seller pursuant hereto contains or
will contain any untrue statement of a material fact, or omits or will omit to
state any material fact and required to make any statement made herein or
therein not misleading.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization, Standing, and Authority. Buyer is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Florida and is duly qualified and in good standing under
the laws of the State of Ohio. Buyer has all requisite power and authority to
execute and deliver this Agreement and the documents contemplated hereby, and
to perform and comply with all of the terms, covenants, and conditions to be
performed and complied with by Buyer hereunder.
4.2 Authorization and Binding Obligation. The execution,
delivery, and performance of this Agreement by Buyer have been duly authorized
by all necessary actions on the part of Buyer. This Agreement has been duly
executed and delivered by Buyer and constitutes the legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms,
except as the enforceability of this Agreement may be affected by bankruptcy,
insolvency, or similar laws affecting creditors' rights generally and by
judicial discretion in the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements. Subject to
obtaining the Consents and making any filing required under the HSR Act, the
execution, delivery, and performance by Buyer of this Agreement and the
documents contemplated hereby (with or without the giving of notice, the lapse
of time, or both): (i) do not require the consent of any third party; (ii)
will not conflict with the Articles of Incorporation or Bylaws of Buyer; (iii)
will not conflict with, result in a breach of, or constitute a default under,
any law, judgment, order, injunction, decree, rule, regulation, or ruling of
any court or governmental instrumentality; or (iv) will not conflict with,
constitute grounds for termination of, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license, or permit to
which Buyer is a party or by which Buyer may be bound, such that Buyer could
not acquire or operate the Assets.
4.4 Broker. Neither Buyer nor any person acting on
Buyer's behalf has incurred any liability for any finders' or brokers' fees or
commissions in connection with the transactions contemplated by this Agreement.
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4.5 Buyer Qualifications. Buyer is legally, financially
and otherwise qualified to be the licensee of, acquire, own and operate the
Station under the Communications Act of 1934, as now in effect, the
Telecommunications Act of 1996, and the rules, regulations and policies of the
FCC as now in effect. Buyer knows of no fact that would, under existing law
and the existing rules, regulations, policies and procedures of the FCC
disqualify Buyer as an assignee of the FCC Licenses or as the owner and
operator of the Station.
4.6 Full Disclosure. No representation or warranty made
by Buyer in this Agreement or in any certificate, document, or other instrument
furnished or to be furnished by Buyer pursuant hereto contains or will contain
any untrue statement of a material fact, or omits or will omit to state any
material fact and required to make any statement made herein or therein not
misleading.
SECTION 5. OPERATIONS OF THE STATION PRIOR TO CLOSING
5.1 Generally. Seller agrees that, between the date of
this Agreement and the Closing Date, Seller shall operate the Station
diligently in the ordinary course of business in accordance with its past
practices (except where such conduct would conflict with the following
covenants or with Seller's other obligations under this Agreement), and in
accordance with the other covenants in this Section 5.
5.2 Compensation. Seller shall not increase the
compensation, bonuses, or other benefits payable or to be payable to any person
employed in connection with the conduct of the business or operations of the
Station, except in accordance with past practices.
5.3 Contracts. Seller will not, without the prior written
consent of Buyer, enter into any contract or commitment relating to the Station
or the Assets, or amend or terminate any Assumed Contract (or waive any
material right thereunder), or incur any obligation (including obligations
relating to the borrowing of money or the guaranteeing of indebtedness) that
will be binding on Buyer after Closing. Prior to the Closing Date, Seller
shall deliver to Buyer a list of all Contracts entered into between the date of
this Agreement and the Closing Date, together with copies of such Contracts.
5.4 Disposition of Assets. Seller shall not sell, assign,
lease, or otherwise transfer or dispose of any of the Assets, except where no
longer used or useful in the business or operations of the Station or in
connection with the acquisition of replacement property of equivalent kind and
value.
5.5 Encumbrances. Seller shall not create, assume or
permit to exist any claim, liability, mortgage, lien, pledge, condition,
charge, or encumbrance of any nature whatsoever upon the Assets, except for (i)
liens disclosed on Schedule 3.5 and Schedule 3.6, which shall be removed on or
prior to the Closing Date, (ii) liens for current taxes not yet due and
payable, and
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(iii) mechanics' liens and other similar liens, which shall be removed on or
prior to the Closing Date.
5.6 Licenses. Seller shall not cause or permit, by any
act or failure to act, any of the Licenses to expire or to be revoked,
suspended, or modified, or take any action that could cause the FCC or any
other governmental authority to institute proceedings for the suspension,
revocation, or adverse modification of any of the Licenses. Seller shall not
fail to prosecute with due diligence any applications to any governmental
authority in connection with the operation of the Station.
5.7 Rights. Seller shall not waive any right relating to
the Station or any of the Assets. Seller shall not cause any cable system
located within the Station's Area of Dominant Influence to refuse to carry the
Station's signal.
5.8 No Inconsistent Action. Seller shall not take any
action that is inconsistent with its obligations under this Agreement or that
could hinder or delay the consummation of the transactions contemplated by this
Agreement.
5.9 Access to Information. Seller shall give Buyer and
its authorized representatives reasonable access to the Assets and to all other
properties, equipment, books, records, Contracts, and documents relating to the
Station for the purpose of audit and inspection.
5.10 Maintenance of Assets. Seller shall use its best
efforts and take all reasonable actions to maintain all of the Assets in good
condition (ordinary wear and tear excepted), and use, operate, and maintain all
of the Assets in a reasonable manner and in accordance with the terms of the
FCC Licenses, all rules and regulations of the FCC and generally accepted
standards of good engineering practice. Seller shall maintain inventories of
spare parts and expendable supplies at levels consistent with past practices.
If any loss, damage, impairment, confiscation, or condemnation of or to any of
the Assets occurs, other than any loss, damage or impairment resulting from
actions taken by Buyer pursuant to the Time Brokerage Agreement, Seller shall
repair, replace, or restore the Assets to their prior condition as represented
in this Agreement as soon thereafter as possible, and Seller shall use the
proceeds of any claim under any insurance policy solely to repair, replace, or
restore any of the Assets that are lost, damaged, impaired, or destroyed.
5.11 Insurance. Seller shall maintain the existing
insurance policies on the Station and the Assets through the Closing Date.
5.12 Consents. Seller shall use its best efforts to obtain
the Consents and the estoppel certificates described in Section 8.2(b), without
any change in the terms or conditions of any Contract or License that could be
less advantageous to the Station than those pertaining under the Contract or
License as in effect on the date of this Agreement; provided, however, that
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Seller's failure to obtain any Consent shall not constitute a material breach
of this Agreement. Seller shall promptly advise Buyer of any difficulties
experienced in obtaining any of the Consents and of any conditions proposed,
considered, or requested for any of the Consents. Upon Buyer's request, Seller
shall cooperate with Buyer and use it best efforts to obtain from the lessors
under each Real Property lease such estoppel certificates and consents to the
collateral assignment of the lessee's interest under each such lease as Buyer's
lenders may request.
5.13 Books and Records. Seller shall maintain its books
and records relating to the Station in accordance with past practices.
5.14 Notification. Seller shall promptly notify Buyer in
writing of any unusual or material developments with respect to the business or
operations of the Station, and of any material change in any of the information
contained in Seller's representations and warranties contained in Section 3 of
this Agreement.
5.15 Financial Information. Seller shall furnish to Buyer
such financial information regarding the Assets and the business or operations
of the Station (including information on payables and receivables) as Buyer may
reasonably request. All financial information delivered by Seller to Buyer
pursuant to this Section shall be prepared from the books and records of Seller
in accordance with generally accepted accounting principles consistently
applied, shall accurately reflect the books, records, and accounts of the
Station, shall be complete and correct in all material respects, and shall
present fairly the financial condition of the Station as at their respective
dates and the results of operations for the periods then ended.
5.16 Compliance with Laws. Seller shall comply in all
material respects with all laws, rules, and regulations applicable or relating
to the ownership and operation of the Station.
5.17 Financing Leases. Seller will satisfy at or prior to
Closing all outstanding obligations under capital and financing leases with
respect to any of the Assets and obtain good title to the Assets leased by
Seller pursuant to those leases so that those Assets shall be transferred to
Buyer at Closing free of any interest of the lessors.
5.18 Programming. Seller shall not make any material
changes in the broadcast hours or in the percentages of types of programming
broadcast by the Station, or make any other material change in the Station's
programming policies, except such changes as in the good faith judgment of the
Seller are required by the public interest.
5.19 Preservation of Business. To the extent consistent
with its obligations under the Time Brokerage Agreement, Seller shall use its
best efforts to preserve the business and organization of the Station and use
its best efforts to keep available to the Station its present employees and the
Station's present relationships with suppliers and others having business
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relations with it, to the end that the business and operations of the Station
shall be unimpaired at the Closing Date.
5.20 Collection of Accounts Receivable. Seller shall
collect the accounts receivable of the Station only in the ordinary course
consistent with its past practices and will not take any action designed or
likely to accelerate the collection of its accounts receivable.
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC Consent.
(a) The assignment of the FCC Licenses in
connection with the purchase and sale of the Assets pursuant to this Agreement
shall be subject to the prior consent and approval of the FCC.
(b) Seller and Buyer shall promptly prepare an
appropriate application for the FCC Consent and shall file the application with
the FCC within five (5) business days of the execution of this Agreement. The
parties shall prosecute the application with all reasonable diligence and
otherwise use their best efforts to obtain a grant of the application as
expeditiously as practicable. Each party agrees to comply with any condition
imposed on it by the FCC Consent, except that no party shall be required to
comply with a condition if (1) the condition was imposed on it as the result of
a circumstance the existence of which does not constitute a breach by the party
of any of its representations, warranties, or covenants under this Agreement,
and (2) compliance with the condition would have a material adverse effect upon
it. Buyer and Seller shall oppose any requests for reconsideration or judicial
review of the FCC Consent. If the Closing shall not have occurred for any
reason within the original effective period of the FCC Consent, and neither
party shall have terminated this Agreement under Section 9, the parties shall
jointly request an extension of the effective period of the FCC Consent. No
extension of the FCC Consent shall limit the exercise by either party of its
rights under Section 9.
6.2 Control of the Station. Prior to Closing, Buyer shall
not, directly or indirectly, control, supervise, direct, or attempt to control,
supervise, or direct, the operations of the Station; such operations, including
complete control and supervision of all of the Station programs, employees, and
policies, shall be the sole responsibility of Seller until the Closing.
6.3 Risk of Loss.
(a) The risk of any loss, damage, impairment,
confiscation, or condemnation of any of the Assets from any cause whatsoever
shall be borne by Seller at all times prior to the Closing.
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(b) If any damage or destruction of the Assets or
any other event occurs, other than any damage or destruction of the Assets or
any other event resulting from Buyer's conduct or actions under the Time
Brokerage Agreement, which (i) causes the Station to cease broadcasting
operations for a period of three or more days or (ii) prevents in any material
respect signal transmission by the Station in the normal and usual manner and
Seller fails to restore or replace the Assets so that normal and usual
transmission is resumed within seven days of the damage, destruction or other
event, Buyer, in its sole discretion, may (x) terminate this Agreement
forthwith without any further obligations hereunder upon written notice to
Seller or (y) proceed to consummate the transaction contemplated by this
Agreement and complete the restoration and replacement of the Assets after the
Closing Date, in which event Seller shall deliver to Buyer all insurance
proceeds received in connection with such damage, destruction or other event.
6.4 Confidentiality. Except as necessary for the
consummation of the transaction contemplated by this Agreement, including
Buyer's obtaining of financing related hereto, and except as and to the extent
required by law, including, without limitation, disclosure requirements of
federal or state securities laws and the rules and regulations of securities
markets, each party will keep confidential any information obtained from the
other party in connection with the transactions contemplated by this Agreement.
If this Agreement is terminated, each party will return to the other party all
information obtained by the such party from the other party in connection with
the transactions contemplated by this Agreement.
6.5 Environmental Audit. Buyer may, at its option and
expense and within thirty (30) days of the date hereof, retain an environmental
consultant to be selected by Buyer to perform a Phase I environmental survey of
the properties of the Station. If the survey discloses any material
environmental hazard or material possibility of future liability for
environmental damages or clean-up costs, Buyer shall so notify Seller as soon
as practicable.
6.6 Engineering Study. Buyer may, at its option and
expense and within thirty (30) days of the date hereof, retain an engineering
firm to conduct a proof of performance study of the Station and to prepare a
report on the Station's compliance with customary engineering practices and all
applicable FCC rules, regulations, prescribed practices, and technical
standards. If the survey discloses any material deficiencies in the operations
or equipment of the Station, Buyer shall so notify Seller as soon as
practicable.
6.7 Cooperation. Buyer and Seller shall cooperate fully
with each other and their respective counsel and accountants in connection with
any actions required to be taken as part of their respective obligations under
this Agreement, and Buyer and Seller shall execute such other documents as may
be necessary and desirable to the implementation and consummation of this
Agreement, and otherwise use their best efforts to consummate the transaction
contemplated hereby and to fulfill their obligations under this Agreement.
Notwithstanding the foregoing,
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Buyer shall have no obligation (i) to expend funds to obtain any of the
Consents or (ii) to agree to any adverse change in any License or Assumed
Contract to obtain a Consent required with respect thereto.
6.8 Bulk Sales Law. If applicable, the Bulk Sales law of
the State of Ohio shall be complied with by Seller and Buyer. Any loss,
liability, obligation, or cost suffered by Seller or Buyer as the result of the
failure of Seller or Buyer to comply with the provisions of any bulk sales law
applicable to the transfer of the Assets as contemplated by this Agreement
shall be borne by Buyer.
6.9 Title Insurance and Surveys.
(a) Title Insurance on Fee Property. With respect
to each parcel of Real Property that Seller owns, Seller will obtain and
deliver to Buyer, at Buyer's expense, at or prior to Closing, an ALTA Owner's
Policy of Title Insurance Form B-1987 (or equivalent policy acceptable to
Buyer), issued by a title insurer satisfactory to Buyer, in an amount equal to
the fair market value of the property and any improvements thereon (as
reasonably determined by Buyer), insuring title to such parcel to be in the
name of Buyer 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 Buyer 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, Buyer will procure 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.
6.10 Sales Tax Filings. Through the Closing Date, Seller
shall continue to file Ohio sales tax returns with respect to the Station, if
and to the extent such returns are required to be filed by applicable law, and
shall concurrently deliver copies of all such returns to Buyer.
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6.11 Access to Books and Records. Seller shall provide
Buyer reasonable access and the right to copy for a period of three years from
the Closing Date any books and records relating to the assets that are not
included in the Assets. Buyer shall provide Seller reasonable access and the
right to copy for a period of three years from the Closing Date any books and
records relating to the Assets.
6.12 Appraisal. Buyer and Seller agree to allocate the
Purchase Price for tax and recording purposes in accordance with an appraisal
to be conducted by an appraisal firm selected and paid for by Buyer with
experience in the valuation and appraisal of television station assets.
6.13 Buyer Conduct. Buyer shall take no action, or fail to
take any required action, that would disqualify Buyer from being the licensee
of the Station under the Communications Act of 1934, as now in effect, the
Telecommunications Act of 1996, and the rules, regulations and policies of the
FCC as now in effect. Buyer, in programming the Station pursuant to the Time
Brokerage Agreement, shall not cause or permit, by any act or failure to act,
any of the Licenses to expire or to be revoked, suspended, or modified, or take
any action that could cause the FCC or any other governmental authority to
institute proceedings for the suspension, revocation, or adverse modification
of any of the Licenses.
6.14 HSR Act Filing. Seller and Buyer agree to (a) file,
or cause to be filed, with the U.S. Department of Justice ("DOJ") and Federal
Trade Commission ("FTC") all filings, if any, which are required in connection
with the transactions contemplated hereby under the HSR Act within ten (10)
business days of the date of this Agreement; (b) submit to the other party,
prior to filing, their respective HSR Act filings to be made hereunder, and to
discuss with the other any comments the reviewing party may have; (c) cooperate
with each other in connection with such HSR Act filings, which cooperation
shall include furnishing the other with any information or documents in such
party's possession that may be reasonably required in connection with such
filings; (d) promptly file, after any request by the FTC or DOJ, any
information or documents requested by the FTC or DOJ; and (e) furnish each
other with any correspondence from or to, and notify each other of any other
communications with, the FTC or DOJ which relates to the transactions
contemplated hereunder, and to the extent practicable, to permit each other to
participate in any conferences with the FTC or DOJ.
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER
AT CLOSING
7.1 Conditions to Obligations of Buyer. All obligations of
Buyer at the Closing are subject at Buyer's option to the fulfillment prior to
or at the Closing Date of each of the following conditions:
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(a) Representations and Warranties. All
representations and warranties of Seller contained in this Agreement shall be
true and complete in all material respects at and as of the Closing Date as
though made at and as of that time.
(b) Covenants and Conditions. Seller shall have
performed and complied in all material respects with all covenants, agreements,
and conditions required by this Agreement to be performed or complied with by
it prior to or on the Closing Date.
(c) Consents. All Consents designated as
"material" on Schedule 3.3 shall have been obtained and delivered to Buyer
without any adverse change in the terms or conditions of any agreement or any
governmental license, permit, or other authorization.
(d) FCC Consent. The FCC Consent shall have been
granted without the imposition on Buyer of any conditions that need not be
complied with by Buyer under Section 6.1 hereof, Seller shall have complied
with any conditions imposed on it by the FCC Consent, and the FCC Consent shall
have become a Final Order.
(e) Governmental Authorizations. Seller shall be
the holder of all Licenses and there shall not have been any modification of
any License that could have a material adverse effect on the Station or the
conduct of its business and operations. No proceeding shall be pending the
effect of which could be to revoke, cancel, fail to renew, suspend, or modify
adversely any License.
(f) Deliveries. Seller shall have made or stand
willing to make all the deliveries to Buyer set forth in Section 8.2.
(g) Adverse Change. Between the date of this
Agreement and the Closing Date, there shall have been no material adverse
change in the assets, or properties of the Station, including any damage,
destruction, or loss affecting any assets used or useful in the conduct of the
business of the Station.
(h) Time Brokerage Agreement. The Time Brokerage
Agreement shall be in full force and effect, and Seller shall have complied, in
all material respects, with its obligations thereunder.
(i) Loan Agreement. There shall exist no Event of
Default as defined in the Loan Agreement.
(j) HSR Act. The waiting period under the HSR Act
shall have expired without unresolved action by the DOJ or the FTC to prevent
the Closing.
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7.2 Conditions to Obligations of Seller. All obligations
of Seller at the Closing are subject at Seller's option to the fulfillment
prior to or at the Closing Date of each of the following conditions:
(a) Representations and Warranties. All
representations and warranties of Buyer contained in this Agreement shall be
true and complete in all material respects at and as of the Closing Date as
though made at and as of that time.
(b) Covenants and Conditions. Buyer shall have
performed and complied in all material respects with all covenants, agreements,
and conditions required by this Agreement to be performed or complied with by
it prior to or on the Closing Date.
(c) Deliveries. Buyer shall have made or stand
willing to make all the deliveries set forth in Section 8.3.
(d) FCC Consent. The FCC Consent shall have been
granted without the imposition on Seller of any conditions that need not be
complied with by Seller under Section 6.1 hereof and Buyer shall have complied
with any conditions imposed on it by the FCC Consent.
(e) Time Brokerage Agreement. The Time Brokerage
Agreement shall be in full force and effect, and Buyer shall have complied, in
all material respects, with its obligations thereunder.
(f) HSR Act. The waiting period under the HSR Act
shall have expired without unresolved action by the DOJ or the FTC to prevent
the Closing.
SECTION 8. CLOSING AND CLOSING DELIVERIES
8.1 Closing.
(a) Closing Date. The Closing shall take place at
10:00 a.m. on a date, to be set by Buyer on at least five days' written notice
to Seller, that is (1) not earlier than the first business day after the FCC
Consent is effective, and (2) not later than ten business days following the
date upon which the FCC Consent has become a Final Order.
(b) Closing Place. The Closing shall be held at
the offices of Dow, Lohnes & Albertson, 1200 New Hampshire Avenue, N.W., Suite
800, Washington, D.C. 20036, or any other place that is agreed upon by Buyer
and Seller.
8.2 Deliveries by Seller. Prior to or on the Closing
Date, Seller shall deliver to Buyer the following, in form and substance
reasonably satisfactory to Buyer and its counsel:
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(a) Transfer Documents. Duly executed warranty
bills of sale, deeds, motor vehicle titles, assignments, and other transfer
documents which shall be sufficient to vest good and marketable title to the
Assets in the name of Buyer, free and clear of all mortgages, liens,
restrictions, encumbrances, claims, and obligations except for liens for
current taxes not yet due and payable;
(b) Estoppel Certificates. Estoppel certificates
of the lessors of all leasehold and subleasehold interests included in the Real
Property;
(c) Consents. An executed copy of any instrument
evidencing receipt of any Consent;
(d) Officer's Certificate. A certificate, dated as
of the Closing Date, executed on behalf of Seller by its Chairman or President,
certifying (1) that the representations and warranties of Seller contained in
this Agreement are true and complete in all material respects as of the Closing
Date as though made on and as of that date; and (2) that Seller has in all
material respects performed and complied with all of its obligations,
covenants, and agreements set forth in this Agreement to be performed and
complied with on or prior to the Closing Date;
(e) Title Insurance and Surveys. The title
insurance and surveys described in Section 6.9;
(f) Licenses, Contracts, Business Records, Etc.
Copies of all Licenses, Assumed Contracts, blueprints, schematics, working
drawings, plans, projections, engineering records, and all files and records
used by Seller in connection with its operations;
(g) Accounts Receivable. A complete and accurate
list of the Station's Accounts Receivable as of a date no more than five
business days prior to the Closing Date, including, with respect to each of the
Accounts Receivable, the account number, date of issuance, name and address of
account debtor, aggregate amount, and balance due;
(h) Opinion of Counsel. An Opinion of Seller's
counsel dated as of the Closing Date, substantially in the form of Schedule
8.2(i) hereto; and
(i) Lenders Certificates. Such certificates and
confirmations to Buyer's lenders as Buyer may reasonably request in connection
with obtaining financing for the performance of its payment obligations
hereunder, provided that Buyer shall bear any reasonable and necessary expense
incurred by Seller to obtain such certificate and confirmation.
8.3 Deliveries by Buyer. Prior to or on the Closing Date,
Buyer shall deliver to Seller the following, in form and substance reasonably
satisfactory to Seller and its counsel:
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(a) Purchase Price. The cash portion of the
Purchase Price, as adjusted pursuant to Section 2.3(a), the executed original
of the Note marked "canceled" and such other documents as may be required to
release or terminate any security interests held by Buyer in any of the assets
described in Section 2.2;
(b) Assumption Agreements. Appropriate assumption
agreements pursuant to which Buyer shall assume and undertake to perform
Seller's obligations under the Licenses and Assumed Contracts as provided in
Section 2.5;
(c) Officer's Certificate. A certificate, dated as
of the Closing Date, executed on behalf of Buyer by its Secretary, certifying
(1) that the representations and warranties of Buyer contained in this
Agreement are true and complete in all material respects as of the Closing Date
as though made on and as of that date, and (2) that Buyer has in all material
respects performed and complied with all of its obligations, covenants, and
agreements set forth in this Agreement to be performed and complied with on or
prior to the Closing Date; and
(d) Opinion of Counsel. An opinion of Buyer's
counsel dated as of the Closing Date, substantially in the form of Schedule
8.3(d) hereto.
(e) Affiliation Agreement. The Affiliation
Agreement, duly executed by Buyer.
SECTION 9. TERMINATION
9.1 Termination by Seller. This Agreement may be
terminated by Seller, if Seller is not then in material default, upon written
notice to Buyer, upon the occurrence of any of the following:
(a) Conditions. If, on the date that would
otherwise be the Closing Date, Seller shall have notified Buyer in writing that
one or more of the conditions precedent to the obligations of Seller set forth
in this Agreement have not been satisfied or waived in writing by Seller and
such condition or conditions shall not have been satisfied by Buyer or waived
in writing by Seller within fifteen days following such notice.
(b) Judgments. If, on the date that would
otherwise be the Closing Date, Seller shall have notified Buyer that there is
in effect any judgment, decree, or order that would prevent or make unlawful
the Closing and such judgment, decree or order shall not have been satisfied by
Buyer within fifteen (15) days following such notice.
(c) Upset Date. If the Closing shall not have
occurred by October 18, 1997.
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9.2 Termination by Buyer. This Agreement may be
terminated by Buyer, if Buyer is not then in material default, upon written
notice to Seller, upon the occurrence of any of the following:
(a) Conditions. If, on the date that would
otherwise be the Closing Date, Buyer shall have notified Seller in writing that
one or more of the conditions precedent to the obligations of Buyer set forth
in this Agreement have not been satisfied or waived in writing by Buyer and
such condition or conditions shall not have been satisfied by Seller or waived
in writing by Buyer within fifteen (15) days following such notice.
(b) Judgments. If, on the date that would
otherwise be the Closing Date, Buyer shall have notified Seller that there is
in effect any judgment, decree, or order that would prevent or make unlawful
the Closing and such judgment, decree or order shall not have been satisfied by
Seller within fifteen (15) days following such notice.
(c) Upset Date. If the Closing shall not have
occurred by October 18, 1997.
(d) Interruption of Service. If any event shall
have occurred that prevented signal transmission of the Station in the normal
and usual manner for a continuous period of three days unless such interruption
of service is due to actions of Buyer under the Time Brokerage Agreement.
9.3 Rights on Termination. Subject to Section 9.4, if
this Agreement is terminated pursuant to Section 9.1 or Section 9.2 and neither
party is in material breach of any provision of this Agreement, the parties
hereto shall have no liability to each other as a result of such termination.
In addition to its rights under Section 9.4, if this Agreement is terminated by
Buyer due to Seller's material breach of its obligations hereunder, Buyer shall
have all rights and remedies available at law or equity. If this Agreement is
terminated by Seller due to Buyer's material breach of its obligations
hereunder, the payment to Seller of the expenses (including reasonable
attorneys' fees and costs) incurred by Seller in the negotiation and
preparation of this Agreement and the performance by Seller of its obligations
hereunder shall constitute full payment and the exclusive remedy for any
damages suffered by Seller by reason of Buyer's material breach.
9.4 Survival of Option. In the event that the
transactions contemplated by this Agreement are not consummated for any reason
whatsoever, the Option shall nevertheless remain exercisable by Buyer until the
expiration of the Option as provided in the Option Agreement, and Buyer may at
any time, and from time to time, prior to such expiration again exercise the
Option as set forth in the Option Agreement and, upon such exercise, Buyer and
Seller shall enter into an Asset Purchase Agreement that is, subject to the
requirement in the following sentence, substantially identical to this
Agreement and thereafter diligently proceed to perform their obligations
thereunder. In the event that the transactions contemplated by this
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Agreement are not consummated because a provision of this Agreement is
determined by the FCC to violate any FCC rule or policy, Buyer and Seller shall
negotiate in good faith to revise any such provision to ensure compliance with
such rule or policy while preserving, to the extent possible, the intent of the
parties as embodied in the provision to be revised.
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES
10.1 Representations and Warranties. All representations
and warranties contained in this Agreement shall be deemed continuing
representations and warranties and shall survive the Closing for a period of
twelve months. Any investigations by or on behalf of any party hereto shall
not constitute a waiver as to enforcement of any representation, warranty, or
covenant contained in this Agreement. No notice or information delivered by
Seller shall affect Buyer's right to rely on any representation or warranty
made by Seller or relieve Seller of any obligations under this Agreement as the
result of a breach of any of its representations and warranties.
10.2 Indemnification by Seller. Notwithstanding the
Closing, and regardless of any investigation made at any time by or on behalf
of Buyer or any information Buyer may have, Seller hereby agrees to indemnify
and hold Buyer harmless against and with respect to, and shall reimburse Buyer
for:
(a) Any and all losses, liabilities, or damages
resulting from any untrue representation, breach of warranty, or nonfulfillment
of any covenant by Seller contained in this Agreement or in any certificate,
document, or instrument delivered to Buyer under this Agreement.
(b) Any and all obligations of Seller not assumed
by Buyer pursuant to this Agreement, including any liabilities arising at any
time under any Contract not included in the Assumed Contracts.
(c) Any and all losses, liabilities, or damages
resulting from the operation or ownership of the Station prior to the Closing,
including any liabilities arising under the Licenses or the Assumed Contracts
which relate to events occurring prior the Closing Date.
(d) Any and all actions, suits, proceedings,
claims, demands, assessments, judgments, costs, and expenses, including
reasonable legal fees and expenses, incident to any of the foregoing or
incurred in investigating or attempting to avoid the same or to oppose the
imposition thereof, or in enforcing this indemnity; provided, however, that
Seller shall not be required to indemnify or hold Buyer harmless against or
with respect to, or reimburse Buyer for, any losses, liabilities, damages or
expenses relating to or arising from Home Shopping Club, Inc. v. Channel 26 of
Dayton, Inc. (File No. 95-006235-CI-021, Sixth Judicial Circuit, Pinellas
County, Florida.
- 27 -
10.3 Indemnification by Buyer. Notwithstanding the
Closing, and regardless of any investigation made at any time by or on behalf
of Seller or any information Seller may have, Buyer hereby agrees, subject to
the limitation in the last sentence of Section 9.3, to indemnify and hold
Seller harmless against and with respect to, and shall reimburse Seller for:
(a) Any and all losses, liabilities, or damages
resulting from any untrue representation, breach of warranty, or nonfulfillment
of any covenant by Buyer contained in this Agreement or in any certificate,
document, or instrument delivered to Seller under this Agreement.
(b) Any and all obligations of Seller assumed by
Buyer pursuant to this Agreement.
(c) Any and all losses, liabilities, or damages
resulting from the operation or ownership of the Station on and after the
Closing.
(d) Any and all losses, liabilities or damages
resulting from any action taken by Buyer or its employees and agents with
respect to the Station, or any failure by Buyer or its employees and agents to
take any action with respect to the Station, in connection with the performance
by Buyer of its obligations under the Time Brokerage Agreement, including,
without limitation, any and all losses, liabilities or damages resulting from
(i) violations by Buyer or its employees and agents of the Communications Act
of 1934, as amended, or any rule, regulation or policy of the FCC, (ii)
slander, defamation or other claims relating to programming provided by Buyer
for broadcast on the Station, and (iii) Buyer's broadcast and sale of
advertising time on the Station.
(e) Any and all actions, suits, proceedings,
claims, demands, assessments, judgments, costs and expenses, including
reasonable legal fees and expenses, incident to any of the foregoing or
incurred in investigating or attempting to avoid the same or to oppose the
imposition thereof, or in enforcing this indemnity.
10.4 Procedure for Indemnification. The procedure for
indemnification shall be as follows:
(a) The party claiming indemnification (the
"Claimant") shall promptly give notice to the party from which indemnification
is claimed (the "Indemnifying Party") of any claim, whether between the parties
or brought by a third party, specifying in reasonable detail the factual basis
for the claim. If the claim relates to an action, suit, or proceeding filed by
a third party against Claimant, such notice shall be given by Claimant within
five days after written notice of such action, suit, or proceeding was given to
Claimant.
- 28 -
(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.
(d) If a claim, whether between the parties or by a
third party, requires immediate action, the parties will make every effort to
reach a decision with respect thereto as expeditiously as possible.
(e) The indemnification rights provided in Sections
10.2 and 10.3 shall extend to the shareholders, directors, officers, employees,
and representatives of any Claimant although for the purpose of the procedures
set forth in this Section 10.4, any indemnification claims by such parties
shall be made by and through the Claimant.
(f) Notwithstanding any provision in this Agreement
to the contrary, Seller shall not be required to indemnify Buyer for any
losses, liabilities or damages relating to or arising from (i) a chose in
action of Seller relating to the Station unless Buyer promptly notifies Seller
of such chose in action, and thereupon Seller shall have sole responsibility
for the prosecution of such chose in action or (ii) any environmental or
engineering defect or other circumstance that is described in the environmental
survey or engineering study referred to in Sections 6.5 and 6.6 hereof,
respectively, if and to the extent such defect or circumstance is not a
violation of Seller's representations, warranties or covenants hereunder.
- 29 -
10.5 Specific Performance. The parties recognize that if
Seller breaches this Agreement and refuses to perform under the provisions of
this Agreement, monetary damages alone would not be adequate to compensate
Buyer for its injury. Buyer shall therefore be entitled, in addition to any
other remedies that may be available, including money damages, to obtain
specific performance of the terms of this Agreement. If any action is brought
by Buyer to enforce this Agreement, Seller shall waive the defense that there
is an adequate remedy at law.
10.6 Attorneys' Fees. In the event of a default by either
party which results in a lawsuit or other proceeding for any remedy available
under this Agreement, the prevailing party shall be entitled to reimbursement
from the other party of its reasonable legal fees and expenses.
SECTION 11. MISCELLANEOUS
11.1 Fees and Expenses. Any federal, state, or local sales
or transfer tax arising in connection with the conveyance of the Assets by
Seller to Buyer pursuant to this Agreement shall be paid by the party upon whom
such tax is imposed by law. Except as otherwise provided in this Agreement,
each party shall pay its own expenses incurred in connection with the
authorization, preparation, execution, and performance of this Agreement,
including all fees and expenses of counsel, accountants, agents, and
representatives, except that Buyer and Seller shall each pay one- half of all
filing fees required by the FCC, and Buyer shall pay any filing fee required by
the FTC under the HSR Act , and each party shall be responsible for all fees or
commissions payable to any finder, broker, advisor, or similar person retained
by or on behalf of such party.
11.2 Arbitration. Except as otherwise provided to the
contrary below, any dispute arising out of or related to this Agreement that
Seller and Buyer are unable to resolve by themselves shall be settled by
arbitration by a panel of three (3) neutral arbitrators who shall be selected
in accordance with the procedures set forth in the commercial arbitration rules
of the American Arbitration Association. The persons selected as arbitrators
shall have prior experience in the broadcasting industry but need not be
professional arbitrators, and persons such as lawyers, accountants, brokers and
bankers shall be acceptable. Before undertaking to resolve the dispute, each
arbitrator shall be duly sworn faithfully and fairly to hear and examine the
matters in controversy and to make a just award according to the best of his or
her understanding. The arbitration hearing shall be conducted in accordance
with the commercial arbitration rules of the American Arbitration Association.
The written decision of a majority of the arbitrators shall be final and
binding on Seller and Buyer. The costs and expenses of the arbitration
proceeding shall be assessed between Seller and Buyer in a manner to be decided
by a majority of the arbitrators, and the assessment shall be set forth in the
decision and award of the arbitrators. Judgment on the award, if it is not
paid within thirty days, may be entered in any court having jurisdiction over
the matter. No action at law or suit in equity based upon any claim arising
out of or related to this Agreement shall be instituted in any court by Seller
or Buyer against the other except (i) an action to compel arbitration pursuant
to this Section, (ii) an
- 30 -
action to enforce the award of the arbitration panel rendered in accordance
with this Section, or (iii) a suit for specific performance pursuant to Section
10.5.
11.3 Notices. All notices, demands, and requests required
or permitted to be given under the provisions of this Agreement shall be (a) in
writing, (b) delivered by personal delivery, or sent by commercial delivery
service or registered or certified mail, return receipt requested, (c) deemed
to have been given on the date of personal delivery or the date set forth in
the records of the delivery service or on the return receipt, and (d) addressed
as follows:
If to Seller: Mr. James L. West
The Christian Network, Inc.
14444 66th Street North
Clearwater, FL 34624
With a copy to: Alan C. Campbell, Esq.
Irwin, Campbell & Tannenwald
1730 Rhode Island Avenue, N.W.
Suite 200
Washington, D.C. 20036
Mr. Lowell W. Paxson
If to Buyer: Paxson Communications Corporation
601 Clearwater Park Road
West Palm Beach, FL 33401
With a copy to: John R. Feore, Jr., Esq.
Dow, Lohnes & Albertson
1200 New Hampshire Avenue, 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
11.3.
11.4 Benefit and Binding Effect. Neither party hereto may
assign this Agreement without the prior written consent of the other party
hereto; provided, however, that Buyer may assign its rights and obligations
under this Agreement, in whole or in part, to one or more subsidiaries or
commonly controlled affiliates of Buyer, prior to the filing of the FCC
application, without seeking or obtaining Seller's prior approval, provided
that such assignment shall not constitute a release of Buyer's obligations
hereunder, and Buyer may collaterally assign its rights and interests hereunder
to its lenders without seeking or obtaining Seller's prior
- 31 -
approval. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
11.5 Further Assurances. The parties shall take any
actions and execute any other documents that may be necessary or desirable to
the implementation and consummation of this Agreement, including, in the case
of Seller, any additional bills of sale, deeds, or other transfer documents
that, in the reasonable opinion of Buyer, may be necessary to ensure, complete,
and evidence the full and effective transfer of the Assets to Buyer pursuant to
this Agreement.
11.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED,
CONSTRUED, AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA
(WITHOUT REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF).
11.7 Headings. The headings in this Agreement are included
for ease of reference only and shall not control or affect the meaning or
construction of the provisions of this Agreement.
11.8 Gender and Number. Words used in this Agreement,
regardless of the gender and number specifically used, shall be deemed and
construed to include any other gender, masculine, feminine, or neuter, and any
other number, singular or plural, as the context requires.
11.9 Entire Agreement. This Agreement, the schedules,
hereto, and all documents, certificates, and other documents to be delivered by
the parties pursuant hereto, collectively represent the entire understanding
and agreement between Buyer and Seller with respect to the subject matter
hereof. This Agreement supersedes all prior negotiations between the parties
and cannot be amended, supplemented, or changed except by an agreement in
writing that makes specific reference to this Agreement and which is signed by
the party against which enforcement of any such amendment, supplement, or
modification is sought.
11.10 Waiver of Compliance; Consents. Except as otherwise
provided in this Agreement, any failure of any of the parties to comply with
any obligation, representation, warranty, covenant, agreement, or condition
herein may be waived by the party entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, representation,
warranty, covenant, agreement, or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any party hereto, such
consent shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in this Section 11.10.
11.11 Press Release. Prior to the Closing, neither party
shall publish any press release, make any other public announcement or
otherwise communicate with any news media concerning this Agreement or the
transactions contemplated hereby without the prior written
- 32 -
consent of the other party; provided, however, that nothing contained herein
shall prevent either party from promptly making all filings with governmental
authorities as may, in its judgement be required or advisable in connection
with the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
11.12 Consent to Jurisdiction and Service of Process. All
judicial proceedings brought against Buyer or Seller arising out of or relating
to this Agreement may be brought in any state or federal court of competent
jurisdiction in the State of Florida and, by execution and delivery of this
Agreement, Buyer and Seller each accepts for itself and in connection with its
properties, generally and unconditionally, the non-exclusive jurisdiction of
the aforesaid courts and waives any defense of forum non conveniens and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement. Seller designates and appoints James L. West, and Buyer
designates and appoints William L. Watson, and such other persons as may
hereafter be selected by Buyer or Seller, as its respective agent to receive on
its behalf service of all process in any such proceedings in any such court,
such service being hereby acknowledged by Buyer and Seller to be effective and
binding service in every respect. A copy of any such process so served shall
be mailed by registered mail to Buyer or Seller at its address provided in
Section 11.3, except that, unless otherwise provided by applicable law, any
failure to mail such copy shall not affect the validity of service of process.
If any agent appointed by Buyer or Seller refuses to accept service, Buyer and
Seller hereby agree that service upon it by mail shall constitute sufficient
notice. Nothing herein shall affect the right to serve process in any other
manner permitted by law or shall limit the right of either party to bring
proceedings against the other in the courts of any other jurisdiction.
11.13 Counterparts. This Agreement may be signed in
counterparts with the same effect as if the signature on each counterpart were
upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
PAXSON COMMUNICATIONS OF
DAYTON-26, INC.
By: /s/ James B. Bocock
-----------------------
Name: James B. Bocock
Title: President
CHANNEL 26 OF DAYTON, INC.
By: /s/ James L. West
-----------------------
James L. West
Chairman
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Dates Referenced Herein
| Referenced-On Page |
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This ‘10-Q’ Filing | | Date | | First | | Last | | | Other Filings |
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| | |
| | 10/18/97 | | 31 | | 32 | | | None on these Dates |
Filed on: | | 8/13/96 |
For Period End: | | 6/30/96 |
| | 4/18/96 | | 1 |
| | 10/6/95 | | 7 | | 19 |
| | 6/17/93 | | 13 |
| List all Filings |
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