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EXHIBIT 10.11
ASSET PURCHASE AGREEMENT
by and between
VILLAGE BROADCASTING CORP.
and
THOMAS WERNER
FOR THE SALE AND PURCHASE OF
BROADCAST EQUIPMENT
ASSET PURCHASE AGREEMENT
THIS ASSET
PURCHASE AGREEMENT (“Agreement”), made
and entered into as of this 12th day of November, 2007, by
and between VILLAGE BROADCASTING COMPANY , a
corporation organized under the laws of the State of
California (“Seller”), and THOMAS
WERNER , a resident of the State of California
(“Buyer”).
W I T N E S S E T H :
WHEREAS
, Seller holds certain equipment for the operation of a
low-power television station; and
WHEREAS
, Seller desires to sell and/or assign, and Buyer desires to
purchase and/or assume certain of the assets, property and
business used in the operation of the Station;
and
NOW,
THEREFORE , the parties, intending to be legally
bound, agree as follows:
SECTION 1
ASSETS TO BE SOLD
1.1 On
the Closing Date, Seller shall sell, assign, transfer, convey,
set over, and deliver to Buyer, and Buyer shall purchase
and/or accept assignment of the following (hereinafter
collectively the “Equipment”) free and clear of
any security interests, claims, encumbrances, liens or
liabilities:
1.1.4
Equipment . All of the equipment used
and useful in the operation of the Station.
SECTION 2
PURCHASE PRICE
2.1
Purchase Price .
In consideration of Seller’s performance of
this Agreement, the Equipment shall be Eleven Thousand Five
Hundred Dollars (US$11,500.00). Payment shall be made as
follows: $5,000 paid upon execution of this
Agreement, and the remainder at closing, on or before
November 30, 2007.
SECTION 3
ASSUMPTIONS
3.1
Liabilities . The
Equipment shall be sold and conveyed to Buyer free and clear
of all liabilities (absolute or contingent), obligations,
liens (including tax, mechanics’ and
materialmen’s liens), pledges, conditional sales
agreements, charges, mortgages, security interests,
encumbrances and restrictions of any type or amount created
or suffered by Seller prior to the Closing Date, whether
existing now or in the future.
3.2
Buyer’s Assumed Obligations
. Except as specifically assumed by Buyer in this
Agreement, Buyer is not agreeing to, and shall not, assume
any liability, obligation, undertaking, expense or agreement
of Seller of any kind, absolute or contingent, known or
unknown, and the execution and performance of this Agreement
shall not render Buyer liable for any such liability,
obligation, undertaking, expense or
agreement. With respect to any of Seller’s
obligations, following Closing, Buyer only
shall be obligated and discharge unperformed duties of the
Seller to the extent they specifically are assumed by Buyer,
and even then, only to the extent such duties or obligations
first accrue after the Closing Date.
3.3
Seller’s Liability
. Seller shall remain liable
for, and covenants to pay, satisfy, or discharge when due,
all Excluded Obligations and all liabilities, payments,
obligations, and duties under the Agreements or other
instruments transferred or assigned to Buyer hereunder,
accruing prior to or by reason of events occurring prior to
the Closing.
SECTION 4
REPRESENTATIONS WARRANTIES AND COVENANTS OF
SELLER
4.1
Seller’s Best Knowledge
. "To the best of Seller's
knowledge" shall mean the actual knowledge of Seller after
(i) due inquiry of all managers, department heads or other
similar employee or agent of Seller and all attorneys and
accountants employed by Seller having responsibility for or
holding a position that reasonably could be expected to
involve substantial knowledge about the subject matter to
which such Seller's Best Knowledge relates; and (ii) due
examination of any documents, correspondence or other items
contained in the files of Seller or the Station pertaining to
such subject matter.
4.2
Standing
.
4.2.1
Seller
is now and on the Closing Date each will be a corporation
validly existing and in good standing under the laws of the
State of California.
4.2.2
Seller
has the full power and authority to enter into this Agreement
and to execute all of Seller's Closing Documents that require
Seller's signature. The execution, delivery and performance of
this Agreement (as of the date of execution of this Agreement
and on the Closing Date) and the Seller's Closing Documents
(on the Closing Date) are or will be authorized by all
necessary actions of the Seller.
4.3
Binding Effect of Agreement
. The execution, delivery and performance of this
Agreement (as of the date of execution of this Agreement and
on the Closing Date) and the Seller’s Closing Documents
(on the Closing Date) are or will be authorized by all
necessary actions of Seller. This Agreement
constitutes a valid and binding obligation of Seller
enforceable against Seller in accordance with the terms of
this Agreement. Upon execution, the Seller’s
Closing Documents will constitute valid and binding
obligations of Seller enforceable against Seller in
accordance with their terms except as may be limited by laws
affecting the enforcement of creditor’s rights or
equitable principles generally. The execution,
delivery, and performance of this Agreement or any of the
Closing Documents do not violate Seller’s Articles of
Incorporation or By-Laws, or any provisions of any contract
provision or other commitment to which Seller or the Station
is a party or under which it or its property is bound, or any
judgment or order of which Seller has received notice, and
will not result in the creation or imposition of any lien,
charge, security interest, or encumbrance of any nature
whatsoever upon any of the Equipment.
4.4
Real and Tangible Personal Property
.
4.4.1
Equipment . At Closing, the
Equipment shall be transferred "as is, where
is." Seller shall, at Closing, give good, clear,
marketable, and indefeasible title to all of the Equipment
being transferred hereunder free and clear of all liens,
charges, encumbrances, restrictions, debts, demands, or claims
of any kind or nature whatsoever, “as is, where
is,” with no warranties as to condition or
operability.
4.5
Litigation
.
4.5.1
Litigation; Compliance With Law
. To the best of Seller’s
Knowledge, the Station is in compliance in all material
respects with all applicable federal, state and local laws,
ordinances and regulations, including compliance with the
Communications Act and all rules and regulations issued
thereunder. Except for proceedings affecting
segments of the broadcasting industry in general, there is no
complaint, claim, litigation, investigation, or judicial,
administrative, or other proceeding of any nature, including,
without limitation, a grievance, arbitration, or insolvency
or bankruptcy proceeding, pending or, to the best of
Seller’s knowledge threatened against the Station,
Seller, or any of the Equipment being sold or transferred to
Buyer, which may (a) adversely affect the Equipment to be
assigned hereunder, (b) restrain or enjoin the Closing or the
consummation of the transactions contemplated
hereby. Seller will give Buyer prompt notice of
its discovery of any such basis or the institution or the
threat of any such litigation, investigation, or
proceeding. In addition, to Seller’s
knoweldge, no such litigation, investigation, or proceeding
has been threatened which would result in a material adverse
effect upon the Station. Seller is not in default
in respect to any judgment, order, writ, injunction, decree,
rule, or regulation of any applicable court or governmental
body, which default could have a materially adverse effect on
the Equipment.
4.5.2
No Liabilities Attaching to Buyer
. Except as expressly provided
in this Agreement, there are no liabilities of any kind or
nature whatsoever of Seller that attach or will, after the
consummation of the transaction contemplated hereby, attach
to Buyer.
4.6
No Untrue Statements or Omission
. No representation or warranty made by Seller in
this Agreement or any Schedule, exhibit, statement,
certificate, or other document heretofore or hereafter
furnished by Seller, or on its behalf, to Buyer and pursuant
to this Agreement or in connection with the transactions
contemplated hereby contains or will contain any knowingly
untrue statement or knowingly omits to state a material fact
necessary to make the statements contained therein not
misleading. All representations and warranties of
Seller set forth in this Agreement shall be true, complete
and accurate in all material respects as of the Closing Date
as if made on that date.
SECTION 5
WARRANTIES, REPRESENTATIONS AND COVENANTS OF
BUYER
Buyer covenants,
represents, and warrants as follows:
5.1
Organization . Buyer is a
resident of the State of California..
5.2
Authorization and Binding Obligation
. Buyer has all necessary power
and authority to enter into this Agreement and to fulfill all
of Buyer’s Closing Obligations. The
execution, delivery and performance of this Agreement (as of
the date of execution of this Agreement and on the Closing
Date) and all of the Buyer’s Closing Obligations (on
the Closing Date) are or will be authorized by all necessary
actions of Buyer. This Agreement constitutes a
valid and binding obligation of Buyer enforceable against
Buyer in accordance with the terms of this
Agreement. Upon execution, the execution by Buyer
of the documents necessary for consummation of this
transaction will constitute valid and binding obligations of
Buyer, enforceable against Buyer in accordance with their
respective terms.
5.3
No Contravention.
The execution, delivery, and performance of
this Agreement or any of the Closing Documents do not violate
any commitment to which Buyer is a party or under which it or
its property is bound, or any judgment or order except as
contemplated herein.
5.4
Litigation .
Except for administrative rule making or other
proceedings of general applicability to the broadcast
industry, there is no litigation, proceeding, judgment,
claim, action, investigation or complaint threatened against
or affecting it which would affect Buyer’s authority or
ability to carry out this Agreement.
5.5
No Untrue Statements or Omission
. No representation or warranty
made by Buyer in this Agreement or any Schedule, exhibit,
statement, certificate, or other document heretofore or
hereafter furnished to Seller and pursuant to this Agreement
or in connection with the transaction contemplated hereby
contains or will contain any knowingly untrue statement or
knowingly omits to state a material fact necessary to make
the statement contained therein not
misleading. All representations and warranties of
Buy
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