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 10.99
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ASSET PURCHASE AGREEMENT
BY AND AMONG
PAXSON COMMUNICATIONS OF
DENVER-59, INC.,
UHF CHANNEL 59 CORP.
AND
CHANNEL 59 OF DENVER, 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 Consents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4 Payment of Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.5 Assumption of Liabilities and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1 Organization, Standing, and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.4 Governmental Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.5 Title to and Condition of Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.6 Title to and Condition of Tangible Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.7 Assumed Contracts . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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3.8 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.9 Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.10 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.11 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.12 Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.14 Claims and Legal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.15 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.17 Conduct of Business in Ordinary Course . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.18 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.4 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.5 Buyer Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.6 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5. OPERATIONS OF THE STATIONS PRIOR TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.2 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.3 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.10 Maintenance of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.11 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.12 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.13 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.14 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.15 Financial Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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5.17 Financing Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.2 Control of the Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.3 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.5 Environmental Audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.6 Engineering Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLERS
AT CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.1 Conditions to Obligations of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.2 Conditions to Obligations of Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8. CLOSING AND CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.2 Deliveries by Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.3 Deliveries by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 9. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.1 Termination by Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.2 Termination by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.3 Rights on Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.4 Survival of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.2 Indemnification by Sellers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.3 Indemnification by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.4 Procedure for Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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
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(h) -- 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 among Paxson Communications of Denver-59, Inc., a Florida corporation
("Buyer"), UHF Channel 59 Corp., a Colorado corporation ("UHF-59"), and Channel
59 of Denver, Inc., a Florida corporation ("CNI-59"; and UHF-59 and CNI-59 are
individually, a "Seller" and collectively, the "Sellers").
R E C I T A L S
A. Sellers and Buyer are parties to an Option Agreement dated as of
August 31, 1995 (the "Option Agreement"), pursuant to which Sellers granted to
Buyer an option (the "Option") to acquire from Sellers substantially all of the
assets used or useful in the business or operations of Television Stations
KUBD-TV, Denver, Colorado ("Station KUBD"), and Low Power Television Station
K54CQ, Fort Collins, Colorado ("Station K54CQ"; and Station KUBD and Station
K54CQ are individually, a "Station" and collectively, the "Stations").
B. In accordance with the Option Agreement, Buyer has notified Sellers
that Buyer intends to exercise the Option.
C. Sellers desire to sell, and Buyer desires to buy, substantially all
the assets that are used or useful in the business or operations of the
Stations, 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 Sellers, 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 either Seller to payment for the
sale of advertising or programming time run on the Stations by Sellers prior to
the Closing Date.
"Affiliation Agreement" means the Affiliation Agreement in the form of
Exhibit A hereto to be entered into upon the Closing by Buyer and The Christian
Network, Inc.
"Assets" means the assets to be sold, transferred, or otherwise conveyed to
Buyer under this Agreement, as specified in Section 2.1.
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"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7 that are
designated as Contracts that are to be assumed by Buyer upon its purchase of
the Stations and (ii) any Contracts entered into by either 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 either Seller is a party or which are binding upon either
Seller and which relate to or affect the Assets or the business or operations
of either or both Stations, and (i) which are in effect on the date of this
Agreement or (ii) which are entered into by either Seller between the date of
this Agreement and the Closing Date.
"FCC" means the Federal Communications Commission.
"FCC Consents" means actions by the FCC granting its consents to the
assignment of the FCC Licenses to Buyer as contemplated by this Agreement.
"FCC Licenses" means all Licenses issued by the FCC to either Seller in
connection with the business or operations of the Stations.
"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
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interests (and any goodwill associated with any of the foregoing) applied for,
issued to, or owned by either Seller or under which either Seller is licensed
or franchised and which are used or useful in the business and operations of
either or both Stations, 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 each Station, together with any additions thereto between the
date of this Agreement and the Closing Date.
"Loan Agreement" means the Loan Agreement dated as of August 31, 1995, among
Buyer and Sellers.
"Note" means the Promissory Note dated August 31, 1995, in the principal
amount of $7,000,000, delivered by CNI-59 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 either or both Stations, 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 either or both Stations,
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
August 31, 1995, among Sellers 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, each 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 Stations that
is owned, leased or otherwise held by such Seller, 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
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encumbrances of any nature whatsoever (except for encumbrances permitted by
Section 5.5 herein), including the following:
(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles and all other intangible assets of
each Seller relating to the either or both Stations that are not specifically
included within the Intangibles, including the goodwill of the Stations, if
any, except for any lists of donors, contributors or other supporters of the
Stations;
(f) All of each 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
either or both Stations;
(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 each Seller relating to
either or both Stations; and
(i) All books and records relating to the business or
operations of the Stations, including executed copies of the Assumed Contracts,
and all records required by the FCC to be kept by the Stations.
2.2 Excluded Assets. The Assets shall exclude the following
assets:
(a) Each Seller's cash on hand as of the Closing and all
other cash in any of either 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 each Seller is required by
law to retain and that pertain to each Seller's corporate organization;
(c) Any pension, profit-sharing, or employee benefit
plans, and any collective bargaining agreements;
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(d) All property listed on Schedule 2.2 hereto; and
(e) All lists of donors, contributors or other supporters
of the Stations.
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 CNI-59 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 Sellers under the Time
Brokerage Agreement, for which no proration shall be required. All expenses
arising from the operation of each 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 Sellers in
accordance with the principle that Sellers 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 Sellers
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 Sellers 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 Sellers at Closing by wire
transfer of same-day funds pursuant to wire instructions which shall be
delivered by Sellers 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 Sellers 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
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of the Stations on or after the Closing Date. Buyer shall not assume any other
obligations or liabilities of either or both Sellers, 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 either or both Stations
prior to the Closing, (iv) any obligations or liabilities arising under
capitalized leases or other financing agreements not assumed by Buyer, (v) any
obligations or liabilities arising under agreements entered into other than in
the ordinary course of business, (vi) any obligations or liabilities of either
or both Sellers under any employee pension, retirement, or other benefit plans
or collective bargaining agreements, (vii) any obligation to any employee of
the Stations 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 either or both
Sellers prior to the Closing, and all such obligations and liabilities shall
remain and be the obligations and liabilities solely of Sellers.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller represents and warrants to Buyer as follows:
3.1 Organization, Standing, and Authority. CNI-59 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 Colorado. UHF-59 is a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado.
Each Seller has all requisite power and authority (i) to own, lease, and use
the Assets as now owned, leased, and used by it, (ii) to conduct the business
and operations of each Station as now conducted by it, 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 such Seller hereunder. Neither Seller is a participant in any
joint venture or partnership with any other person or entity with respect to
any part of the operations of either or both Stations or any of the Assets.
3.2 Authorization and Binding Obligation. The execution,
delivery, and performance of this Agreement by each Seller have been duly
authorized by all necessary actions on the part of such Seller and its
shareholder. This Agreement has been duly executed and delivered by each
Seller and constitutes the legal, valid, and binding obligation of such 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
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require the consent of any third party; (ii) will not conflict with any
provision of the Articles of Incorporation or Bylaws of each 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 either Seller is a party or by which either Seller may be bound; and (v)
will not create any claim, liability, mortgage, lien, pledge, condition,
charge, or encumbrance of any nature whatsoever upon any of the Assets.
3.4 Governmental Licenses. Schedule 3.4 includes a true and
complete list of the Licenses. Sellers have delivered to Buyer true and
complete copies of the Licenses (including any amendments and other
modifications thereto). The Licenses have been validly issued, and the
respective Seller identified on Schedule 3.4 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 Stations
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 Stations as now operated. Except as described on Schedule
3.4, the Licenses for each Station are in full force and effect, and the
conduct of the business and operations of such Station is in accordance
therewith in all material respects. Sellers have 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 city of license of Station KUBD, as determined by the
FCC, is located within the Denver Area of Dominant Influence as defined by the
1991-1992 Area of Dominant Influence Market Guide published by The Arbitron
Co. and the Denver Designated Market Area as defined by the 1995 United States
Television Household Estimates published by Nielsen Media Research. To the
best of Sellers' knowledge, on or before June 17, 1993, Station KUBD made a
valid election of must carry with respect to each cable system located within
such Station's Area of Dominant Influence. Except as disclosed on Schedule
3.4, no cable system on which Station KUBD is entitled to must carry status has
advised such Station of any signal quality or copyright indemnity or other
prerequisite to cable carriage of such 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 each
Seller's interests therein. Except as disclosed on Schedule 3.5, the Real
Property listed on Schedule 3.5 comprises all real property interests necessary
to conduct the business and operations of the Stations as now conducted.
Sellers have 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
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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 UHF-59 fulfills its
obligations under the lease therefor, UHF-59 has enforceable rights to
nondisturbance and quiet enjoyment, and, to the best of Sellers' knowledge, no
third party holds any interest in the leased premises with the right to
foreclose upon UHF-59'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. Sellers have
delivered to Buyer true and complete copies of all deeds pertaining to the Real
Property. All Real Property (including the improvements thereon) (i) is in
good condition and repair consistent with its present use, (ii) is available
for immediate use in the conduct of the business and operations of the
Stations, and (iii) complies in all material respects with all applicable
building or zoning codes and the regulations of any governmental authority
having jurisdiction. Sellers have 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 Stations as now conducted. Except as described in Schedule 3.6, each
Seller owns and has good title to each item of Tangible Personal Property owned
by it, and none of the Tangible Personal Property owned by either 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 Stations. 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 Stations and
any auxiliary broadcast stations used in the operation of the Stations 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. Sellers have 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, neither Seller requires any 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. Sellers are not aware of any intention by
any party to any Assumed
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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, each Seller has full legal power and authority
to assign its rights under the Assumed Contracts to Buyer in accordance with
this Agreement, and such assignment will not affect the validity,
enforceability, or continuation of any of the Assumed Contracts.
3.8 Consents. Except for the FCC Consents 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 each Seller to assign or
transfer the Assets to Buyer, or (iii) to enable Buyer to conduct the business
and operations of the Stations 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. Sellers have delivered to Buyer copies
of all documents establishing or evidencing all Intangibles. To the best
knowledge of Sellers, neither Seller is 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 Sellers 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 Stations as now conducted.
3.10 Insurance. Schedule 3.10 is a true and complete list of
all insurance policies of either Seller that insure any part of the Assets or
the business of the Stations. 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 Stations against all customary and foreseeable risks. During the past
three years, no insurance policy of either Seller on the Assets or the Stations
has been canceled by the insurer and no application of either Seller for
insurance has been rejected by any insurer.
3.11 Reports. All Station returns, reports, and statements
required to be filed by Sellers 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 Sellers and the Stations have
been complied with by Sellers in all material respects. All of such returns,
reports, and statements are substantially complete and correct as filed.
Sellers have timely paid to the FCC all annual regulatory fees required to be
paid by Sellers with respect to the FCC Licenses.
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3.12 Personnel.
(a) Employees and Compensation. Schedule 3.12 contains a
true and complete list of all employees of the Stations, 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 Stations and all fixed or
contingent liabilities or obligations of either Seller with respect to any
person now or formerly employed by either Seller at the Stations, 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. Sellers have 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, Sellers 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. Sellers are 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 them 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 Sellers, threatened, and Sellers possess no knowledge of any facts
which could give rise to any such action, suit or claim.
(b) Labor Relations. Neither Seller is a party to or
subject to any collective bargaining agreements with respect to the Stations.
Neither Seller has any written or oral contracts of employment with any
employee of the Stations, other than those listed in Schedule 3.7. Each 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 Sellers' knowledge, threatened, between Sellers and any employee
(singly or collectively) of the Stations. No labor union or other collective
bargaining unit represents or claims to represent any of the employees of the
Stations. To Sellers' knowledge, there is no union campaign being conducted to
solicit cards from employees to authorize a union to request a National Labor
Relations Board certification election with respect to any employees at the
Stations.
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(c) Liabilities. Neither Seller has any liability of any
kind to or in respect of any employee benefit plan, including withdrawal
liability under Section 4201 of ERISA. Neither Seller has incurred any
accumulated funding deficiency within the meaning of ERISA or Section 4971 of
the Internal Revenue Code. Neither Seller has failed to make any required
contributions to any employee benefit plan. The Pension Benefit Guaranty
Corporation has not asserted that either 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 either Seller as a result of a
failure to comply with ERISA.
3.13 Taxes. Each 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 by it, and has paid or caused to be
paid all taxes shown on those returns or on any tax assessment received by 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 either 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 Stations, and, to the best knowledge of
Sellers, no event has occurred that could impose on Buyer any transferee
liability for any taxes, penalties, or interest due or to become due from
either 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 Sellers threatened, against or relating to either Seller
with respect to the ownership or operation of its respective Station or
otherwise relating to the Assets or the business or operations of either
Station, nor do Sellers 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
Sellers' knowledge, threatened (i) before the FCC relating to the business or
operations of either 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 either 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 either Station involving zoning issues under any
federal, state, or local zoning law, rule, or regulation.
3.15 Environmental Matters.
(a) Each 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
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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 either Seller in
connection with its ownership or operation of the Stations alleging any failure
to comply with any such law, rule, or regulation.
(b) To the best of Sellers' knowledge, neither Seller has
any liability relating to its ownership and operation of the Stations that
could reasonably be expected to have a material adverse effect on the business
or operations of the Stations (and there is no basis related to the present
operations, properties, or facilities of either Seller for any present or
future charge, complaint, action, suit, proceeding, hearing, investigation,
claim, or demand against such Seller giving rise to any such liability) under
any law, rule, or regulation of any federal, state, or local government (or
agency thereof) concerning release or threatened release of hazardous
substances, public health and safety, or pollution or protection of the
environment.
(c) To the best of Sellers' knowledge, neither Seller has
any liability relating to its ownership and operation of the Stations that
could reasonably be expected to have a material adverse effect on the business
or operations of the Stations (and neither Seller has 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 either 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 Sellers' knowledge, neither Seller has
any liability relating to its ownership and operation of the Stations that
could reasonably be expected to have a material adverse effect on the business
or operations of the Stations (and there is no basis for any present or future
charge, complaint, action, suit, proceeding, hearing, investigation, claim, or
demand against either 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 Sellers' knowledge, neither Seller has
any liability relating to its ownership and operation of the Stations that
could reasonably be expected to have a material adverse effect on the business
or operations of the Stations (and neither Seller has 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 either Seller
giving rise to any such liability) for any illness or personal injury to any
employee.
(f) To the best of Sellers' knowledge, in connection with
the Sellers' ownership or operation of the Stations, each Seller has obtained
and been in compliance in all
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material respects with all of the terms and conditions of all permits,
licenses, and other authorizations which are required under, and has complied
with all other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules, and timetables which are contained in,
all federal, state, and local laws, rules, and regulations (including all
codes, plans, judgments, orders, decrees, stipulations, injunctions, and
charges thereunder) relating to public health and safety, worker health and
safety, and pollution or protection of the environment, including laws relating
to emissions, discharges, releases, or threatened releases of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes
into ambient air, surface water, ground water, or lands or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, or chemical,
industrial, hazardous, or toxic materials or wastes.
(g) No pollutant, contaminant, or chemical, industrial,
hazardous, or toxic material or waste has ever been manufactured, buried,
stored, spilled, leaked, discharged, emitted, or released by either Seller in
connection with its ownership and operation of the Stations or, to the best of
Sellers' knowledge, by any other party on any Real Property.
3.16 Compliance with Laws. Each 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 Stations. Neither the ownership or use of the properties of
the Stations nor the conduct of the business or operations of the Stations
conflicts with the rights of any other person or entity.
3.17 Conduct of Business in Ordinary Course. Except as
disclosed on Schedule 3.5, since October 18, 1995, each 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 either Station, including any damage, destruction, or loss
affecting any assets used or useful in the conduct of the business of either
Station;
(b) Made any sale, assignment, lease, or other transfer
of any of the properties of either Station 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 either
Seller with respect to the Stations, 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 Stations; or
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(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 Stations.
3.18 Transactions with Affiliates. Neither Seller has been
involved in any business arrangement or relationship relating to either Station
with any affiliate of Sellers, and no affiliate of Sellers owns any property or
right, tangible or intangible, which is used in the business of the Stations,
other than such arrangements and relationships between Sellers 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 Sellers'
behalf has incurred any liability for any finders' or brokers' fees or
commissions in connection with the transactions contemplated by this Agreement.
3.20 Full Disclosure. No representation or warranty made by
Sellers in this Agreement or in any certificate, document, or other instrument
furnished or to be furnished by Sellers 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 Sellers 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 Colorado. 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
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Buyer of this Agreement and the documents contemplated hereby (with or without
the giving of notice, the lapse of time, or both): (i) do not require the
consent of any third party; (ii) will not conflict with the Articles of
Incorporation or Bylaws of Buyer; (iii) will not conflict with, result in a
breach of, or constitute a default under, any law, judgment, order, injunction,
decree, rule, regulation, or ruling of any court or governmental
instrumentality; or (iv) will not conflict with, constitute grounds for
termination of, result in a breach of, constitute a default under, or
accelerate or permit the acceleration of any performance required by the terms
of, any agreement, instrument, license, or permit to which Buyer is a party or
by which Buyer may be bound, such that Buyer could not acquire or operate the
Assets.
4.4 Broker. Neither Buyer nor any person acting on Buyer's behalf
has incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement.
4.5 Buyer Qualifications. Buyer is legally, financially and
otherwise qualified to be the licensee of, acquire, own and operate the
Stations 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 Stations.
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 STATIONS PRIOR TO CLOSING
5.1 Generally. Each Seller agrees that, between the date of this
Agreement and the Closing Date, Sellers shall operate Station KUBD and, at such
time as it resumes broadcast operations, Station K54CQ, diligently in the
ordinary course of business in accordance with their past practices (except
where such conduct would conflict with the following covenants or with Sellers'
other obligations under this Agreement), and in accordance with the other
covenants in this Section 5.
5.2 Compensation. Neither Seller shall 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 Stations,
except in accordance with past practices.
5.3 Contracts. Neither Seller will, without the prior written
consent of Buyer, enter into any contract or commitment relating to either
Station or the Assets, or amend or terminate
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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, Sellers 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. Neither Seller shall 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 Stations or in
connection with the acquisition of replacement property of equivalent kind and
value.
5.5 Encumbrances. Neither Seller shall create, assume or permit
to exist any claim, liability, mortgage, lien, pledge, condition, charge, or
encumbrance of any nature whatsoever upon the Assets, except for (i) liens
disclosed on Schedule 3.5 and Schedule 3.6, which shall be removed on or prior
to the Closing Date, (ii) liens for current taxes not yet due and payable, and
(iii) mechanics' liens and other similar liens, which shall be removed on or
prior to the Closing Date.
5.6 Licenses. Neither Seller shall 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. Neither Seller shall fail to prosecute
with due diligence any applications to any governmental authority in connection
with the operation of either Station.
5.7 Rights. Neither Seller shall waive any right relating to
either Station or any of the Assets. Neither Seller shall cause any cable
system located within the Area of Dominant Influence of Station KUBD to refuse
to carry such Station's signal.
5.8 No Inconsistent Action. Neither Seller shall 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. Sellers 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
Stations for the purpose of audit and inspection.
5.10 Maintenance of Assets. Each 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. Each Seller shall maintain
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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,
Sellers shall repair, replace, or restore the Assets to their prior condition
as represented in this Agreement as soon thereafter as possible, and Sellers
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. Sellers shall maintain the existing insurance
policies on the Stations and the Assets through the Closing Date.
5.12 Consents. Sellers shall use their 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 Stations than those pertaining under the Contract or
License as in effect on the date of this Agreement; provided, however, that
Sellers' failure to obtain any Consent shall not constitute a material breach
of this Agreement. Sellers 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,
Sellers shall cooperate with Buyer and use their 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. Each Seller shall maintain its books
and records relating to the Stations in accordance with past practices.
5.14 Notification. Sellers shall promptly notify Buyer in
writing of any unusual or material developments with respect to the business or
operations of the Stations, and of any material change in any of the
information contained in Sellers' representations and warranties contained in
Section 3 of this Agreement.
5.15 Financial Information. Sellers shall furnish to Buyer
such financial information regarding the Assets and the business or operations
of the Stations (including information on payables and receivables) as Buyer
may reasonably request. All financial information delivered by Sellers to
Buyer pursuant to this Section shall be prepared from the books and records of
Sellers in accordance with generally accepted accounting principles
consistently applied, shall accurately reflect the books, records, and accounts
of the Stations, shall be complete and correct in all material respects, and
shall present fairly the financial condition of the Stations as at their
respective dates and the results of operations for the periods then ended.
5.16 Compliance with Laws. Each Seller shall comply in all
material respects with all laws, rules, and regulations applicable or relating
to the ownership and operation of the Stations.
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5.17 Financing Leases. Each 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
either 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. Sellers shall not make any material changes
in the broadcast hours or in the percentages of types of programming broadcast
by the Stations, or make any other material change in the Stations' programming
policies, except such changes as in the good faith judgment of the Sellers are
required by the public interest.
5.19 Preservation of Business. To the extent consistent with
their obligations under the Time Brokerage Agreement, each Seller shall use its
best efforts to preserve the business and organization of the Stations and use
its best efforts to keep available to the Stations their present employees and
the Stations' present relationships with suppliers and others having business
relations with them, to the end that the business and operations of the
Stations shall be unimpaired at the Closing Date.
5.20 Collection of Accounts Receivable. Sellers shall collect
the accounts receivable of the Stations 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 Consents.
(a) The assignment of the FCC Licenses in connection with
the purchase and sale of the Assets pursuant to this Agreement shall be subject
to the prior consent and approval of the FCC.
(b) Sellers and Buyer shall promptly prepare appropriate
applications for the FCC Consents and shall file the applications with the FCC
within five (5) business days of the execution of this Agreement. The parties
shall prosecute the applications with all reasonable diligence and otherwise
use their best efforts to obtain a grant of the applications as expeditiously
as practicable. Each party agrees to comply with any condition imposed on it
by the FCC Consents, 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 Sellers shall oppose any requests for reconsideration or
judicial review of the FCC Consents. If the Closing shall not have occurred
for any reason within the original effective period of the FCC Consents, and
neither party shall have terminated this Agreement under
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Section 9, the parties shall jointly request an extension of the effective
period of the FCC Consents. No extension of the FCC Consents 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 Stations; such operations,
including complete control and supervision of all of the Stations programs,
employees, and policies, shall be the sole responsibility of Sellers 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 Sellers at all times prior to the Closing.
(b) If any damage or destruction of the Assets or any
other event occurs, other than any damage or destruction of the Assets or any
other event resulting from Buyer's conduct or actions under the Time Brokerage
Agreement, which (i) causes Station KUBD to cease broadcasting operations for a
period of three or more days or (ii) prevents in any material respect signal
transmission by Station KUBD in the normal and usual manner and Sellers fail 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 Sellers 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 Sellers 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 Stations. 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 Sellers as soon as practicable.
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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 Stations and to prepare a report on
the Stations' 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 Stations, Buyer shall so notify Sellers as soon as
practicable.
6.7 Cooperation. Buyer and Sellers shall cooperate fully with
each other and their respective counsel and accountants in connection with any
actions required to be taken as part of their respective obligations under this
Agreement, and Buyer and Sellers shall execute such other documents as may be
necessary and desirable to the implementation and consummation of this
Agreement, and otherwise use their best efforts to consummate the transaction
contemplated hereby and to fulfill their obligations under this Agreement.
Notwithstanding the foregoing, Buyer shall have no obligation (i) to expend
funds to obtain any of the Consents or (ii) to agree to any adverse change in
any License or Assumed Contract to obtain a Consent required with respect
thereto.
6.8 Bulk Sales Law. If applicable, the Bulk Sales law of the
State of Colorado shall be complied with by Sellers and Buyer. Any loss,
liability, obligation, or cost suffered by Sellers or Buyer as the result of
the failure of Sellers 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 either Seller owns, Sellers 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
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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, Sellers
shall continue to file Colorado sales tax returns with respect to the Stations,
if and to the extent such returns are required to be filed by applicable law,
and shall concurrently deliver copies of all such returns to Buyer.
6.11 Access to Books and Records. Sellers 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 Sellers 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 Sellers 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 Stations 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 Stations 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. Sellers and Buyer agree to (a) file, or
cause to be filed, with the U.S. Department of Justice ("DOJ") and Federal
Trade Commission ("FTC") all filings, if any, 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
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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 SELLERS
AT CLOSING
7.1 Conditions to Obligations of Buyer. All obligations of Buyer
at the Closing are subject at Buyer's option to the fulfillment prior to or at
the Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations
and warranties of Sellers contained in this Agreement shall be true and
complete in all material respects at and as of the Closing Date as though made
at and as of that time.
(b) Covenants and Conditions. Sellers 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
them 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 Consents. The FCC Consents 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, Sellers shall have complied
with any conditions imposed on it by the FCC Consents, and the FCC Consents
shall have become Final Orders.
(e) Governmental Authorizations. Sellers shall be the
holders of all Licenses and there shall not have been any modification of any
License that could have a material adverse effect on the Stations or the
conduct of their business and operations. No proceeding shall be pending the
effect of which could be to revoke, cancel, fail to renew, suspend, or modify
adversely any License.
(f) Deliveries. Sellers 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 Stations,
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including any damage, destruction, or loss affecting any assets used or useful
in the conduct of the business of the Stations.
(h) Time Brokerage Agreement. The Time Brokerage
Agreement shall be in full force and effect, and Sellers shall have complied,
in all material respects, with their 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.
7.2 Conditions to Obligations of Sellers. All obligations of
Sellers at the Closing are subject at Sellers' option to the fulfillment prior
to or at the Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations
and warranties of Buyer contained in this Agreement shall be true and complete
in all material respects at and as of the Closing Date as though made at and as
of that time.
(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 Consents. The FCC Consents shall have been
granted without the imposition on Sellers of any conditions that need not be
complied with by Sellers under Section 6.1 hereof and Buyer shall have complied
with any conditions imposed on it by the FCC Consents.
(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.
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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
Sellers, that is (1) not earlier than the first business day after both FCC
Consents are effective, and (2) not later than ten business days following the
date upon which both FCC Consents have become Final Orders.
(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
Sellers.
8.2 Deliveries by Sellers. Prior to or on the Closing Date,
Sellers shall deliver to Buyer the following, in form and substance reasonably
satisfactory to Buyer and its counsel:
(a) Transfer Documents. Duly executed 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 each Seller by its Chairman or
President, certifying (1) that the representations and warranties of each
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 each Seller has in all material respects performed and complied with all
of its obligations, covenants, and agreements set forth in this Agreement to be
performed and complied with on or prior to the Closing Date;
(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
Sellers in connection with its operations;
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(g) Accounts Receivable. A complete and accurate list of
the Stations' 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 Sellers' counsel
dated as of the Closing Date, substantially in the form of Schedule 8.2(h)
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 Sellers to obtain such certificate and confirmation.
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer
shall deliver to Sellers the following, in form and substance reasonably
satisfactory to Sellers and their counsel:
(a) Purchase Price. The 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
Sellers' 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.
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SECTION 9. TERMINATION
9.1 Termination by Sellers. This Agreement may be terminated by
Sellers, if neither Seller is then in material default, upon written notice to
Buyer, upon the occurrence of any of the following:
(a) Conditions. If, on the date that would otherwise be
the Closing Date, Sellers shall have notified Buyer in writing that one or more
of the conditions precedent to the obligations of Sellers set forth in this
Agreement have not been satisfied or waived in writing by Sellers and such
condition or conditions shall not have been satisfied by Buyer or waived in
writing by Sellers within fifteen days following such notice.
(b) Judgments. If, on the date that would otherwise be
the Closing Date, Sellers 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.
9.2 Termination by Buyer. This Agreement may be terminated by
Buyer, if Buyer is not then in material default, upon written notice to
Sellers, upon the occurrence of any of the following:
(a) Conditions. If, on the date that would otherwise be
the Closing Date, Buyer shall have notified Sellers 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 Sellers 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 Sellers 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 Sellers 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 Station KUBD 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.
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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 Sellers' material breach of their obligations hereunder, Buyer
shall have all rights and remedies available at law or equity. If this
Agreement is terminated by Sellers due to Buyer's material breach of its
obligations hereunder, the payment to Sellers of the expenses (including
reasonable attorneys' fees and costs) incurred by Sellers in the negotiation
and preparation of this Agreement and the performance by Sellers of their
obligations hereunder shall constitute full payment and the exclusive remedy
for any damages suffered by Sellers 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 Sellers
shall enter into an Asset Purchase Agreement that is, subject to the
requirement in the following sentence, substantially identical to this
Agreement and thereafter diligently proceed to perform their obligations
thereunder. In the event that the transactions contemplated by this Agreement
are not consummated because a provision of this Agreement is determined by the
FCC to violate any FCC rule or policy, Buyer and Sellers 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
Sellers shall affect Buyer's right to rely on any representation or warranty
made by Sellers or relieve either Seller of any obligations under this
Agreement as the result of a breach of any of its representations and
warranties.
10.2 Indemnification by Sellers. Notwithstanding the Closing, and
regardless of any investigation made at any time by or on behalf of Buyer or
any information Buyer may have, Sellers hereby agree to indemnify and hold
Buyer harmless against and with respect to, and shall reimburse Buyer for:
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(a) Any and all losses, liabilities, or damages resulting
from any untrue representation, breach of warranty, or nonfulfillment of any
covenant by either Seller contained in this Agreement or in any certificate,
document, or instrument delivered to Buyer under this Agreement.
(b) Any and all obligations of either 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 either Station prior to the Closing,
including any liabilities arising under the Licenses or the Assumed Contracts
which relate to events occurring prior the Closing Date.
(d) Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs, and expenses, including reasonable
legal fees and expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
10.3 Indemnification by Buyer. Notwithstanding the Closing, and
regardless of any investigation made at any time by or on behalf of Sellers or
any information Sellers may have, Buyer hereby agrees, subject to the
limitation in the last sentence of Section 9.3, to indemnify and hold each
Seller harmless against and with respect to, and shall reimburse each 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 Sellers under this Agreement.
(b) Any and all obligations of each Seller assumed by
Buyer pursuant to this Agreement.
(c) Any and all losses, liabilities, or damages resulting
from the operation or ownership of the Stations 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
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provided by Buyer for broadcast on the Station, and (iii) Buyer's broadcast and
sale of advertising time on the Station.
(e) Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs and expenses, including reasonable legal
fees and expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
10.4 Procedure for Indemnification. The procedure for
indemnification shall be as follows:
(a) The party claiming indemnification (the "Claimant")
shall promptly give notice to the party from which indemnification is claimed
(the "Indemnifying Party") of any claim, whether between the parties or brought
by a third party, specifying in reasonable detail the factual basis for the
claim. If the claim relates to an action, suit, or proceeding filed by a third
party against Claimant, such notice shall be given by Claimant within five days
after written notice of such action, suit, or proceeding was given to Claimant.
(b) With respect to claims solely between the parties,
following receipt of notice from the Claimant of a claim, the Indemnifying
Party shall have thirty days to make such investigation of the claim as the
Indemnifying Party deems necessary or desirable. For the purposes of such
investigation, the Claimant agrees to make available to the Indemnifying Party
and/or its authorized representatives the information relied upon by the
Claimant to substantiate the claim. If the Claimant and the Indemnifying Party
agree at or prior to the expiration of the thirty-day period (or any mutually
agreed upon extension thereof) to the validity and amount of such claim, the
Indemnifying Party shall immediately pay to the Claimant the full amount of the
claim. If the Claimant and the Indemnifying Party do not agree within the
thirty-day period (or any mutually agreed upon extension thereof), the Claimant
may seek appropriate remedy at law or equity or under the arbitration
provisions of this Agreement, as applicable.
(c) With respect to any claim by a third party as to
which the Claimant is entitled to indemnification under this Agreement, the
Indemnifying Party shall have the right at its own expense, to participate in
or assume control of the defense of such claim, and the Claimant shall
cooperate fully with the Indemnifying Party, subject to reimbursement for
actual out-of-pocket expenses incurred by the Claimant as the result of a
request by the Indemnifying Party. If the Indemnifying Party elects to assume
control of the defense of any third-party claim, the Claimant shall have the
right to participate in the defense of such claim at its own expense. If the
Indemnifying Party does not elect to assume control or otherwise participate in
the defense of any third party claim, it shall be bound by the results obtained
by the Claimant with respect to such claim.
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(d) If a claim, whether between the parties or by a third
party, requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
(e) The indemnification rights provided in Sections 10.2
and 10.3 shall extend to the 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, Sellers shall not be required to indemnify Buyer for any losses,
liabilities or damages relating to or arising from (i) a chose in action of
either Seller relating to either Station unless Buyer promptly notifies Sellers
of such chose in action, and thereupon Sellers 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 Sellers' representations, warranties or covenants hereunder.
10.5 Specific Performance. The parties recognize that if
either 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, each 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 Sellers
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, on the one hand, and Sellers, on the other hand, 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.
-30-
11.2 Arbitration. Except as otherwise provided to the contrary
below, any dispute arising out of or related to this Agreement that Sellers and
Buyer are unable to resolve by themselves shall be settled by arbitration 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 Sellers and Buyer. The costs and expenses of the arbitration
proceeding shall be assessed between Sellers and Buyer in a manner to be
decided by a majority of the arbitrators, and the assessment shall be set forth
in the decision and award of the arbitrators. Judgment on the award, if it is
not paid within thirty days, may be entered in any court having jurisdiction
over the matter. No action at law or suit in equity based upon any claim
arising out of or related to this Agreement shall be instituted in any court by
Sellers or Buyer against the other except (i) an action to compel arbitration
pursuant to this Section, (ii) an action to enforce the award of the
arbitration panel rendered in accordance with this Section, or (iii) a suit for
specific performance pursuant to Section 10.5.
11.3 Notices. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall be (a) in
writing, (b) delivered by personal delivery, or sent by commercial delivery
service or registered or certified mail, return receipt requested, (c) deemed
to have been given on the date of personal delivery or the date set forth in
the records of the delivery service or on the return receipt, and (d) addressed
as follows:
If to either 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
-31-
If to Buyer: Mr. Lowell W. Paxson
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 Sellers' 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 Sellers' prior approval. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
11.5 Further Assurances. The parties shall take any actions
and execute any other documents that may be necessary or desirable to the
implementation and consummation of this Agreement, including, in the case of
Sellers, 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.
-32-
11.9 Entire Agreement. This Agreement, the schedules, hereto,
and all documents, certificates, and other documents to be delivered by the
parties pursuant hereto, collectively represent the entire understanding and
agreement between Buyer and Sellers with respect to the subject matter hereof.
This Agreement supersedes all prior negotiations between the parties and cannot
be amended, supplemented, or changed except by an agreement in writing that
makes specific reference to this Agreement and which is signed by the party
against which enforcement of any such amendment, supplement, or modification is
sought.
11.10 Waiver of Compliance; Consents. Except as otherwise
provided in this Agreement, any failure of any of the parties to comply with
any obligation, representation, warranty, covenant, agreement, or condition
herein may be waived by the party entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, representation,
warranty, covenant, agreement, or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any party hereto, such
consent shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in this Section 11.10.
11.11 Press Release. Prior to the Closing, neither party shall
publish any press release, make any other public announcement or otherwise
communicate with any news media concerning this Agreement or the transactions
contemplated hereby without the prior written consent of the other party;
provided, however, that nothing contained herein shall prevent either party
from promptly making all filings with governmental authorities as may, in its
judgement be required or advisable in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
11.12 Consent to Jurisdiction and Service of Process. All
judicial proceedings brought against Buyer or either 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 each Seller 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. Each 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 Sellers, 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 each
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 Sellers
at the 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 Sellers refuses to
accept service, Buyer and Sellers hereby agree that service upon it by mail
shall constitute sufficient notice. Nothing herein shall affect
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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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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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 DENVER-59, INC.
By: /s/ James B. Bocock
-----------------------------------
Name: James B. Bocock
Title: President
UHF CHANNEL 59 CORP.
By: /s/ James L. West
------------------------------------
James L. West
Chairman
CHANNEL 59 OF DENVER, INC.
By: /s/ James L. West
------------------------------------
James L. West
Chairman
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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 DENVER-59, INC.
By:
-----------------------------------
Name: James B. Bocock
Title: President
UHF CHANNEL 59 CORP.
By: /s/ James L. West
------------------------------------
James L. West
Chairman
CHANNEL 59 OF DENVER, INC.
By: /s/ James L. West
------------------------------------
James L. West
Chairman
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Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
---|
This ‘10-Q’ Filing | | Date | | First | | Last | | | Other Filings |
---|
| | |
| | 10/18/97 | | 32 |
Filed on: | | 8/13/96 |
For Period End: | | 6/30/96 |
| | 4/18/96 | | 1 |
| | 10/18/95 | | 19 | | | | | 8-K/A |
| | 8/31/95 | | 7 | | 9 |
| | 6/17/93 | | 13 |
| List all Filings |
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