EX-10.8(c)
Time Brokerage Agreement
TIME BROKERAGE AGREEMENT
This time brokerage agreement dated June 27, 1997, is entered into by and
between ONYX BROADCASTING, INC. a Delaware corporation ("Licensee"), and NCR II,
INC, a Virginia corporation ("Programmer"). Collectively, Licensee and
Programmer shall be identified as the "Parties").
Recitals.
Licensee owns radio station KTRR-FM of Loveland, Colorado (the "Station").
The principals of Programmer are experienced in radio station ownership and
operation, and Licensee wishes to retain Programmer to provide sales and
marketing services, technical support, and programming for the Station that is
in conformity with the rules, regulations, and policies for time brokerage
agreements of the Federal Communications Commission ("FCC") and this agreement.
NOW, THEREFORE, in consideration of the above recitals and the mutual
promises and covenants contained herein, the Parties, intending to be bound
legally, agree as follows:
Section 1
Effective Date and Programmer Services
1.1 Effective Date. The Initial Term (hereinafter defined) of this
agreement shall begin (the "Effective Date") on the earlier to occur of August
5, 1996 or the termination, cancellation, or expiration of Licensee's present
Program Services Agreement (the "Duchossois Agreement") entered into on August
5, 1991 with Duchossois Communications Company of Colorado, Inc. ("Duchossois").
1.2 Term. The initial term shall continue after the Effective Date for a
period of five years (the "Initial Term"), and thereafter for four additional
five year terms [the "Additional Term(s)," and, with the Initial Term, the
"Term")] unless sooner terminated by Programmer's notice of termination given to
Licensee no less than one hundred eighty (180) days before expiration of the
Initial Term or of any Additional Term.
1.3 Programmer Services. During the Term, Licensee agrees to make
available to Programmer on an exclusive basis broadcast time on the Station as
set forth in this agreement. Programmer shall provide entertainment programming
in the format and content of its selection complete with commercial matter,
news, public service announcements, and other suitable programming for at least
one hundred sixty-two (162) hours per week, which broadcast time of the Station
Licensee shall make available during the Term exclusively
to Programmer, free and clear of all rights of any other person or entity.
Licensee reserves to itself, however, the right to broadcast its own programming
material for up to six (6) hours per week between the hours of 6 AM - 12:00 Noon
on Sundays ("Licensee's Reserved Time") for its own regularly scheduled news,
public affairs and other suitable non-entertainment programming designed to
serve the community needs and interests of the Station's listening audience.
Licensee shall cooperate with and promptly (at least 24 hours before) notify
Programmer if Licensee will use all or any part of Licensee's Reserved Time, and
Programmer shall have the right to use any unused portion of Licensee's Reserved
Time in default of such a notice from Licensee.
1.4 Consideration. As consideration for Programmer's rights hereunder and
the air time made available during the Term hereof, Programmer shall make
payments as set forth in Attachment 1.4 attached hereto and identified by the
initials of the Parties' representatives. The Parties agree that Attachment 1.4
and Attachment 7.3 contain proprietary and confidential information, and each
agrees to take all steps reasonably necessary to maintain such confidentiality,
including redacting such confidential information from any copy of this
agreement that is filed with the FCC.
1.5 Expenses and Revenues. Licensee shall be solely responsible for the
timely payment of all taxes and other costs incidental thereto, all FCC
regulatory fees, real estate and personal property taxes, all utility costs
relating to the existing transmitter site, transmitter and antenna, and all
maintenance and repair costs on the transmitter equipment. Programmer shall be
solely responsible for all expenses attributable to its programming on the
Station, including but not limited to any expenses incurred in the origination
and/or delivery of its programming to the Station's studio and transmitter
sites, for all costs associated with the acquisition, clearance, and production
of its own programming, and for the salaries, taxes, insurance and related costs
for all personnel employed by Programmer in connection with the sale of
advertising time, marketing of the Station, technical maintenance of Station's
equipment, and production and delivery of programming. Programmer shall retain
all revenues from the sale of commercial time during its programming of the
Station, including any revenues arising from such programming during Licensee's
Reserved Time. In the event Licensee broadcasts programming outside Licensee's
Reserved Time, other than as a result of preemptions under Section 2.1 or
Section 3.2, it shall reimburse Programmer at the Station's then highest unit
rate, per half-hour, or any portion thereof, in accordance with the Station's
existing rate cards, said amount to be deducted from the next payment to
Licensee due under Section 1.4 above.
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1.6 Use of Station's Facilities. Throughout the entire Term Programmer
shall make its studio facilities, located within the Station's principal
community contour, reasonably available to Licensee, at no charge, for the
production and presentation of Licensee's programming and as otherwise necessary
to fulfill Licensee's obligations as an FCC licensee. Consistent with its
obligations under this agreement and with all requirements of the laws, rules,
and regulations of the FCC, Programmer shall have full use of the Station's
facilities, studios, and equipment free from any hindrance or interference from
any person or persons whomsoever claiming by, through, or under Licensee, which
facilities Programmer shall use only for the purpose of exercising its rights
and fulfilling its obligations under this agreement.
1.7 Contracts. This agreement does not obligate Programmer to assume any
of Licensee's existing contracts, agreements, or leases. Notwithstanding the
foregoing, Programmer shall cooperate with Licensee to fulfill all appropriate
contracts, agreements, and leases in effect on the Effective Date that involve
operation of the Station. From and after the date hereof, Licensee will take all
actions necessary to make certain that, and, as a precondition of Programmer's
agreements and liability hereunder, it shall be a fact that, as of the Effective
Date the Station (or Licensee for Station) is not then subject to, and that
Licensee has not entered into or committed Station to, any contract, lease, or
agreement that will bind Programmer during the Term or any part thereof, except
such as may have received the prior, written approval of Programmer, or as may
be expressly permitted hereunder. Except with Licensee's prior written approval,
Programmer will not enter into any contracts, leases, or agreements that will
bind Licensee in any way after termination of this agreement, except for
agreements for the sale of broadcast time for cash entered into in the normal
course of business that may be canceled without penalty on no more than thirty
(30) days prior notice.
Section 2
Licensee's Duties and Obligations
2.1 Licensee's Authority. At all time, Licensee shall remain responsible
for compliance by Station with all applicable provisions of the Communications
Act of 1934, as amended (the "Act"), the rules, regulations and policies of the
FCC, and all other applicable laws. Licensee shall be solely responsible for and
pay in a timely manner all operating costs of the Station, including but not
limited to the expenses listed and identified as Licensee's expenses on
Attachment 1.4 including the salaries, taxes, insurance, and related costs for
all personnel employed by Licensee. Licensee shall maintain insurance consistent
with its
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existing coverages covering the Station's transmission facilities, and shall
include Programmer as a named additional insured as its interests may appear.
Programmer recognizes that the Station is obligated to broadcast programming to
meet the needs and interests of the Red Lion, Pennsylvania, area, and Programmer
shall air programming on issues of importance to the local community. In the
event of the occurrence of a local or national emergency that in the good faith,
reasonable judgment of Licensee, is not being adequately addressed by
Programmer, Licensee retains the right to interrupt Programmer's programming to
substitute programming produced by Licensee that is more responsive to the
emergency. During the Term, Licensee shall maintain all FCC Licenses for the
Station's operation in full force and effect in compliance with all FCC rules,
regulations, and policies, and shall timely file all necessary reports and
prosecute to a satisfactory conclusion all renewal or other applications
necessary to maintain such Licenses in full force and effect during the Term,
without material change or restriction.
2.1A Station Signal. At all times during the Term, at its sole expense
Licensee shall maintain the Station's broadcast signal within such signal's
present technical parameters and without Programmer's prior consent, shall not
materially change the Station's presently licensed tower or transmission
facilities.
2.2 Additional Licensee Obligations.
(a) Station's ID. During the Term, Programmer shall coordinate with
Licensee to ensure that the Station's hourly station identifications and any
other required announcements are aired as Licensee may direct, and Licensee
shall not change "KTRR-FM" as the Station's call sign without the consent of
Programmer.
(b) Political Advertising. During the Term, Programmer shall
cooperate with Licensee to assist Licensee in complying with all rules of the
FCC regarding political broadcasting. Licensee shall promptly supply to
Programmer, and Programmer shall promptly supply to Licensee, such information,
including all inquiries concerning the broadcast of political advertising, as
may be necessary to comply with FCC rules and polices, including the lowest unit
rate, equal opportunities, reasonable access, political file, and related
requirements of federal law. Programmer, in consultation with Licensee, shall
develop a statement that discloses the Station's political broadcasting policies
to political candidates, and Programmer shall follow those policies in the sale
of political programming or advertising during the Term. In the event that
Programmer fails to satisfy political broadcasting requirements under the Act
and the rules, regulations,
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and policies of the FCC and such failure inhibits Licensee in its compliance
with the political broadcasting requirements of the FCC, then to the extent
reasonably necessary to assure such compliance, Programmer shall either provide
rebates to political advertisers or release advertising availabilities to
Licensee.
(c) Main Studio. In cooperation with Programmer, during the Term
Licensee shall (i) maintain and staff a main studio, as that term is defined by
the FCC, which Licensee may locate within facilities that Programmer shall
provide within the Station's principal community contour, or at such other
location that complies with FCC rules for the location of a main studio within
such area, (ii) maintain a local public inspection file within Loveland,
Colorado, and (iii) prepare and place in such inspection file in a timely manner
all material required by Section 73.3526 of the FCC's rules, including without
limitation the Station's quarterly issues/program lists. Programmer shall
provide Licensee with timely information concerning Programmer's programs as is
necessary to assist Licensee in the preparation of such lists.
(d) Employment Practices. During the Term, Programmer shall provide
to Licensee such information as Licensee reasonably may request concerning
Programmer's recruitment, hiring, or employment practices in connection with
Programmer's provision of services to the Station.
2.3 Responsibility for Employees. Licensee shall provide and be
responsible for the Station's personnel necessary to fulfill Licensee's
responsibilities or as otherwise required by the FCC for agreements of this
nature. Programmer shall be directly and solely responsible for the salaries,
taxes, insurance, and related costs for all of the personnel employed by it in
operating the Station after the Effective Date.
2.4 Collection of Accounts Receivable. For a period of ninety (90) days
(the "Collection Period") following any termination of this agreement, Licensee
shall collect as agent for Programmer the accounts receivable of the Station in
existence as of the termination date. Programmer shall provide Licensee with a
list of all such accounts receivable to be collected by Licensee. In collecting
such accounts receivable, Licensee shall use reasonable diligence, but shall not
be required to institute legal proceedings to collect any account receivable, or
to defend any claim or counterclaim by any account debtor. All amounts received
from an account debtor that also is an account debtor of Licensee after the
termination date shall be applied first to payment of the accounts receivable of
Programmer. Within ten (10) days of the end of each calendar month of the
Collection Period, Licensee shall
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deliver to Programmer the net amount, after deducting any sales commission,
agency fees and similar direct expenses attributable to such accounts
receivable, of all amounts collected and credited to the accounts receivable of
Programmer during the prior calendar month in accordance with this Section 2.4.
Within ten (10) days of the end of the Collection Period, Licensee shall deliver
to Programmer all records of uncollected accounts receivable of Programmer and
any amounts not previously remitted to Programmer at which time Licensee's
obligation for the collection of Programmer's accounts receivable shall cease.
2.5 Failures to Broadcast. If during the Term, the Station fails to
broadcast for any reason, other than as a result of circumstances or events
attributable to Programmer, or as provided in Section 2.1 or Section 2.3.
Programmer shall be entitled to deduct $1,000 per day from the amount payable to
Licensee hereunder for each twenty-four hours in which broadcasting at the
Station was interrupted for an aggregate of two or more hours, which amount
shall be offset by any payments due and payable to Licensee pursuant to the last
sentence of Section 1.5.
2.6 Right to Cure. Any deficiency or degradation in the coverage or power
of the Station occurring at any time during the Term, or the effects of any and
all actions or failures to act by Licensee that adversely affect Station or its
broadcast operations, or any obligations of Licensee that are not fulfilled,
remedied, or cured by Licensee as promptly as is possible, may be fulfilled,
remedied, or cured by Programmer at its sole election in order to ensure the
availability and full utility of the broadcast time herein made available to
Programmer, and the expense of any such actions by Programmer shall be charged
to Licensee and may first be deducted from the amounts payable to Licensee
hereunder, except to the extent that any such loss of Programmer's is covered by
business interruption or similar insurance coverage payable to Programmer.
Section 3
Licensee's Programming Policies
3.1 Programming Policy Statement. Licensee has adopted a Programming
Policy Statement (the "Policy Statement"), a copy of which appears as Attachment
3.1 attached hereto and identified by the initials of the Parties'
representatives. During the Term, Programmer shall comply in all material
respects with the Policy Statement and with all applicable rules and regulations
of the FCC. If a program, commercial announcement, or promotional material
supplied by Programmer contains material that is obscene, indecent, libelous,
constitutes a "personal attack"; or an invasion of
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privacy or violates the Act or the FCC's rules, or otherwise does not comply
with the Policy Statement Licensee may, after prior, written notice to
Programmer (to the extent time permits such notice), suspend or cancel such
program, commercial announcement, or promotional material and may require
Programmer to substitute a suitable program, commercial announcement, or
promotional material. Notwithstanding the foregoing or Attachment 3.1, the
parties agree that the regular broadcast of programming similar in style and
content to the ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇ programs shall not constitute a
violation of Section 3.1 or Attachment 3.1, and further agree that the isolated
broadcast of material that is inconsistent with certain provisions of Attachment
3.1 shall not constitute a violation of Section 3.1 or Attachment 3.1.
3.2 Licensee Oversight of Programming. Programmer recognizes that Licensee
has the right to reject or refuse such portions of the Programmer's programming
that is contrary to the public interest. At all times, all actions of Licensee
shall be based upon Licensee's good faith implementation of its responsibilities
as an FCC Licensee and shall not be taken for commercial purposes or for the
commercial, economic, or business advantage of Licensee. Within the limitation
of Attachment 3.2, at all times Programmer shall determine the entertainment
format and marketing and promotional direction of the Station. Attached hereto
as Attachment 3.2 is a general description of Programmer's presently planned
programming. Licensee is generally familiar with Programmer's operating
standards and, in particular, approves of the programming outlined in Attachment
3.2. Programmer shall make no substantial and material change in its scheduled
programming from that described in Attachment 3.2 without Licensee's prior
consent, which shall not be unreasonably withheld.
3.3 Compliance with Copyright Act. Programmer represents, warrants and
covenants to Licensee that Programmer has full authority to broadcast its format
and programming on the Station, and that Programmer shall not knowingly
broadcast any material in violation of the Copyright Act. Licensee will be
responsible for all copyright clearances for its programming and shall maintain
the Station's copyright licenses in full force and effect.
3.4 Payola. With respect to its programming on the Station during the
Term, Programmer agrees that it will not accept, and will not knowingly permit
any of its employees to accept, any consideration, compensation, gift, or
gratuity of any kind whatsoever, regardless of its value or form, for the
broadcast of any material on the Station unless the payer is identified on the
program for which consideration was provided as having paid for or
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furnished such consideration, in accordance with the Act and FCC requirements.
3.5 Cooperation on Programming. Programmer and Licensee mutually
acknowledge their interest in ensuring that the Station serve the needs and
interest of the residents of the Loveland, Colorado area and agree to cooperate
during the Term in doing so. Licensee shall, on a regular basis, assess (which
results shall be shared with Programmer on a regular basis) the issues of public
concern and address those issues in the Station's public service programming.
Licensee shall describe those issues and responsive programming and place
issues/programs lists in the Station's public inspection file as required by FCC
rules. Further, during the Term Programmer shall provide Licensee with
information concerning such of Programmer's programs as are responsive to
community issues in order to assist Licensee in meeting its public service
programming obligations. Upon Licensee's reasonable request, Programmer shall
also provide Licensee with such other information as reasonably may be necessary
to enable Licensee to prepare records and reports required by the Commission or
other local, state, or federal government entities.
Section 4
Indemnification
4.1 Programmer's Indemnification. Programmer shall indemnify and hold
harmless Licensee from and against any and all claims, losses, costs,
liabilities, damages, and expenses, including any FCC fines or forfeitures
(including reasonable legal fees and other expenses incidental thereto) of every
kind, nature, and description, including but not limited to slander or
defamation or otherwise (hereinafter "Claims"), arising out of Programmer's
broadcasts on the Station and/or sale of advertising time under this agreement
during the Term, or the actions or conduct of Programmer's employees.
4.2 Licensee's Indemnification. Licensee shall indemnify and hold harmless
Programmer from and against any and all Claims arising out of broadcasts
originated by Licensee pursuant to this agreement, and for the actions or
conduct of Licensee or Licensee's employees.
4.3 Time Brokerage Challenge. If this agreement is challenged at the FCC
or in any other administrative or judicial forum, whether or not in connection
with any license assignment application, counsel for Licensee and Programmer
shall jointly defend the agreement and the Parties' performance hereunder
throughout all such proceedings. If portions of this agreement do not receive
the approval of the FCC, then the Parties shall reform
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the agreement, consistent with the provisions of Section 6.6 below, as necessary
to satisfy the FCC's concerns.
Section 5
Termination
5.1 Termination.
(a) Automatic Termination.
This agreement and the Term hereof shall terminate
automatically upon the occurrence of any of the following:
(i) the earlier of (a) Programmer's termination of the Term
hereof as herein provided, or (b) the day before the anniversary date hereof in
the year 2022;
(ii) this agreement is declared invalid or illegal in whole or
substantial part by an order or decree of an administrative agency or court of
competent jurisdiction and such order or decree has become final and is no
longer subject to further administrative or judicial review, or
(iii) there is a material change in FCC rules, policies or
precedent that causes this agreement to be in material, incurable violation
thereof and such change is in effect and not the subject of an appeal or further
administrative review, provided, however, that in such event the Parties first
shall negotiate in good faith and attempt to agree on an amendment to this
agreement consistent with Section 6.6 below.
(b) Other Termination.
This agreement may be terminated (i) by the Parties' mutual
written consent, or (ii) by Licensee giving Programmer prior, written notice of
such termination in the event of (a) Programmer's material breach of a material
provision of this agreement that is not cured (or a cure instituted and carried
forward in good faith) within thirty (30) days after written notice thereof to
Programmer describing such breach in detail, or (b) failure to close and
consummate any agreed Sale of the Station to Programmer as hereafter agreed upon
by the Parties, which failure is due solely to Programmer's material, uncured
default under such agreement of Sale after thirty (30) days written notice of
such default given to Programmer by Licensee describing such default in detail,
or (iii) by Programmer giving Licensee at least sixty (60) days prior, written
notice of such termination at any time upon or after any Sale (hereinafter
defined) or other transfer of the
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Station or the Station's Licenses to an owner other than the Licensee.
5.2 Force Majeure. Subject to Section 2.6, any failure or impairment of
the Station's facilities or any delay or interruption in the broadcast of
programs, or failure at any time to furnish facilities, in whole or in part, for
broadcast, due to acts of God, strikes, lockouts, material or labor restrictions
by any governmental authority, civil riot, floods and any other cause not
reasonably within the control of Licensee or Programmer, shall not constitute a
breach of this agreement or create liability to or on any of the Parties.
Section 6
Miscellaneous
6.1 Assignment. This agreement is binding upon the Parties, their
successors and assigns. Neither of the Parties may assign its rights under this
agreement without the prior written consent of the other party. For purposes of
this Section 6.1, an assignment shall include any change in control of a Party,
e.g., by sale of capital stock, merger, or operation of law.
6.2 Amendment. No amendment to this agreement shall be effective unless
evidenced by an instrument in writing signed by both Parties.
6.3 Headings. The headings herein are for convenience only and do not
control or affect the meaning or construction of the provisions of this
agreement.
6.4 Governing Law. This agreement is subject to applicable federal, state,
and local law, rules and regulations, including, but not limited to, the Act and
the rules, regulations, and policies of the FCC. The construction and
interpretation of this agreement and the Parties' obligations hereunder will be
determined under and controlled by the laws of the Commonwealth of Virginia,
without giving effect to such laws' principles regarding choice of law or
conflicts of laws.
6.5 Notices. Each notice, consent, request, demand or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given only upon the earlier of receipt (by hand delivery, fax, or
otherwise) or five (5) days after having been mailed, certified or registered
United States mail, postage prepaid, addressed as follows:
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if to Licensee or Onyx Broadcasting, Inc.
▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇'▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esquire
▇/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇-▇▇▇▇
if to Programmer: NCR II, Inc.
c/▇ ▇▇▇▇▇ Media Company, L.P.
▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇
P.O. Box 3353
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
c/o Thompson & ▇▇▇▇▇▇▇▇, P.C.
100 Shockoe Slip
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or when so delivered or mailed to such other place or person as a party
hereafter from time to time may have designated in a prior written notice to the
other party.
6.6 Invalidity. If any provision of this agreement or the application
thereof to any person or circumstances shall be held invalid or unenforceable to
any extent, the Parties shall negotiate in good faith and attempt to agree on an
amendment to this agreement that will provide the Parties with substantially the
same rights, economic benefits, and obligations to the greatest extent possible
as the original agreement in valid, binding, and enforceable form.
6.7 Governing Laws; Attorneys' Fees. This agreement, the rights and
obligations of the Parties, and any claims or disputes arising hereunder shall
be governed by and construed in accordance with the laws of the Commonwealth of
Virginia (without regard to the choice-of-law rules utilized in that
jurisdiction), and the state and federal courts of Virginia shall have
nonexclusive jurisdiction over any controversy or claim arising out of or
related to the interpretation or enforcement of this agreement. In the event of
a dispute between the Parties arising out of or related to the interpretation or
enforcement of this agreement, the prevailing Party shall be entitled to
reimbursement of reasonable attorneys' fees, costs and other expenses (including
expert fees). Such right of reimbursement shall be in addition to any other
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right or remedy that the prevailing Party may have under this agreement. In
addition, to the fullest extent permitted by law, any objection that any Party
now or hereafter may have to the laying of venue of any suit, action, or
proceeding arising out of or relating to this agreement or any judgment entered
by any court in respect thereof in the Commonwealth of Virginia is hereby
waived, and any claim that any suit, action, or proceeding brought in the
Commonwealth of Virginia has been brought in an inconvenient forum is hereby
further irrevocably waived. Each Party hereby further agrees that if any such
suit, action, or proceeding is pending in more than one jurisdiction, the
Licensee's selection of the forum shall be binding upon the Parties.
Section 7
Security Interest; Sale of Station
7.1 Security Agreements, Pledges.
(a) Licensee. In order to secure Licensee's performance of this
agreement, Licensee has executed and delivered to Programmer a stock pledge
agreement, in form and substance satisfactory to Programmer, granting to
Programmer a security interest in and a pledge of all of the capital stock of
Licensee, as therein more particularly provided.
(b) Programmer. In order to secure Programmer's performance of this
agreement, Programmer has executed and delivered to Licensee a stock pledge
agreement, in form and substance satisfactory to Licensee, granting to Licensee
a security interest in and a pledge of all of the capital stock of Programmer,
as therein more particularly provided.
7.2. Restrictions on Sale of the Station. During the Term, Licensee agrees
that it will not agree to, enter into a contract for, or consummate a sale or
other transfer of the Station without first complying with the provisions of
this agreement. Upon any such Sale or other transfer the rights of any purchaser
or transferee shall be and be made subject and subordinate to the terms and
conditions of this agreement and to Programmer's rights hereunder, and any such
Sale or other transfer, except a Sale to Programmer (or its designated
affiliate), shall not affect Programmer's rights under this agreement.
7.3. Purchase Option. Licensee hereby grants to Programmer, (or an
affiliate of Programmer) during the Term, the sole and exclusive option to
purchase (for Programmer or its affiliate) (the "Purchase Option") from Licensee
the Station, including its broadcast license(s) and all assets used or useful in
the business
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of the Station, for the price and upon the terms and conditions set forth in
Attachment 7.3 (the "Purchase Agreement") attached hereto and identified by the
initials of the Parties' representatives. Such option shall be exercised by
Programmer giving Licensee at least ten (10) days prior, written notice of
Programmer's intent to exercise its Purchase Option at least one hundred eighty
(180) days prior to expiration of the Initial Term or of any Additional Term.
Within five (5) business days of Licensee's receipt of such notice, the Parties
shall enter into and execute, and thereafter shall perform, the Purchase
Agreement.
7.4. Sale Option. So long as (a) Programmer has not exercised its Purchase
Option, (b) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ of Fairfax County, Virginia, remains the sole
stockholder of Licensee, (c) Licensee is not in material default under this
agreement, and (d) this agreement has not been terminated, at any time on and
after the date upon which the order of the FCC approving the Licensee's
application for renewal of its current broadcast license shall have become a
Final Order as defined in the Purchase Agreement (the "Sale Option Date"), or at
such earlier time as the Parties may agree upon in writing, Licensee shall have
the sole and exclusive option (the "Sale Option") to sell to Programmer (or to
Programmer's designated affiliate) the Station, including the License(s) and all
assets used or useful in the business of the Station, for the price and upon the
terms and conditions set forth in the Purchase Agreement. Such Sale Option may
be exercised by Licensee giving Programmer at least ten (10) days prior, written
notice of Licensee's intent to exercise its Sale Option, at lease one hundred
eighty (180) days prior to expiration of the Initial Term or of any Additional
Term. Within five (5) business days of Programmer's receipt of such notice, the
Parties shall enter into and execute, and thereafter shall perform, the Purchase
Agreement.
7.5 Notice of Sale. Until the Sale Option Date shall have passed, within
ten (10) days after receipt of any good ▇▇▇▇▇ ▇▇▇▇ fide written offer from a
third party ("Offer") for a Sale of the Station or its stock or assets (the
"Proposed Sale') that Licensee desires to accept, Licensee will give written
notice to Programmer of the Offer (the "Sale Notice") stating (a) the name and
address of the offeror (the "Offeror"), (b) that Licensee proposes to accept the
Offer, and (c) the essential terms of the Offer, accompanies by a true and
complete copy of the Offer.
7.6 Sale Preconditions. If, during the period of thirty (30) days (the
"Option Period") immediately following Programmer's receipt of a Sale Notice
complying with Section 7.5 Programmer (or its affiliate) shall fail to exercise
its Purchase Option granted by Section 3 by giving written notice of such
exercise to Licensee
13
and Offeror within such Option Period, then during the period thirty (30) days
(the "Sale Period") immediately following the expiration of such Option Period,
and only during such Sale Period, Licensee or its shareholder(s) may enter into
a contract (the "Sale Contract") with the Offeror for such Proposed Sale, but
if, and only if, (a) such Sale Contract is entered into in writing with
conditions set forth in such Sale Notice, (b) if the Sale Contract is entered
into prior to June 1, 1997, the purchase price to be paid under such Sale
Contract is at least $2,000,000.00, (c) a true, complete, and fully executed
copy of such Sale Contract is delivered to Programmer before expiration of such
Sale Period, and (d) the Offeror, as potential purchaser of the Station, and
transferee of its License(s), enters into an agreement in writing (the
"Assumption Agreement") with Programmer, in form and substance satisfactory to
Programmer, providing that Station and the Offeror as such owner and transferee
shall assume, agree to, be bound by, and be subject to all obligations of
Licensee under this agreement and to all other provisions of this agreement,
including Programmer's Term. If the Sale agreed upon in such Sale Contract is
not closed and consummated upon the terms agreed upon in the Sale Contract, or
if any other of such preconditions is not met, then Licensee or its
shareholder(s) thereafter may not agree to or consummate any Sale of the Station
or its stock or assets pursuant to such Sale Contract and must again comply with
all requirements of this agreement, including the notice and precondition
provisions of Sections 7.5 and 7.6, before any Sale. Any attempted Sale other
than in compliance with all provisions of this agreement shall be null and void.
Section 8
Counterparts
8.1 Counterparts. This agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same agreement. For purposes of executing this
agreement, a facsimile signature shall be as effective as an actual signature,
so long as the original signature is promptly delivered thereafter.
14
IN WITNESS WHEREOF, the Parties have executed this agreement as of the
date first written above.
LICENSEE: ONYX BROADCASTING, INC.
By:___________________________
a duly authorized officer
PROGRAMMER: NCR II, INC.
by:___________________________
a duly authorized officer
DISTRICT OF COLUMBIA
CITY OF WASHINGTON, to-wit:
The foregoing Time Brokerage Agreement was acknowledged before me this
27th day of June 1996, by ▇▇▇ ▇▇▇▇▇▇ as President of Onyx Broadcasting, Inc., a
Delaware corporation, as Licensee on behalf of the corporation, in the City of
Washington, D.C.
My commission expires: / /
-----------------------------------
Notary Public
(Official Seal)
COMMONWEALTH OF INDIANA
CITY/COUNTY OF ▇▇▇▇▇▇▇▇▇▇, to-wit:
The foregoing Time Brokerage Agreement was acknowledged before me this 22
day of June, 1996, by ▇▇▇▇ ▇. ▇▇▇▇▇ as President of NCR II, Inc., a Virginia
corporation, as Programmer, on behalf of the corporation, in the City/County of
Evansville, ▇▇▇▇▇▇▇▇▇▇.
My commission expires: / /
-----------------------------------
Notary Public
(Official Seal)
15
ATTACHMENT 1.4
Station Expenses
(1 page)
Licensee's Expenses. In accordance with Section 1.4 of the foregoing Time
Brokerage Agreement dated __________, 19__ (the "Operating Agreement") between
Onyx Broadcasting, Inc. ("Licensee"), and NCR II, Inc. ("Programmer") for the
operation of radio station KTRR-FM, Loveland, Colorado (the "Station"), Licensee
shall be solely responsible for the costs and expenses incurred as Licensee of
the Station during the Term of the Operating Agreement, including but not
limited to each of the following items:
o Employee salaries and fringe benefits, including withholding taxes and
health insurance, for (a) a management employee, for (b) a full time
receptionist who also will provide such services for Programmer, and for
(c) each additional employee hired by Licensee or required to be hired by
License;
o FCC filing and regulatory fees;
o Local, state and federal property taxes, license fees and similar
regulatory charges;
o Contract engineering fees in order to maintain the operation of the
Station's transmitter facilities;
o Electric power and other utility charges at the transmitter site;
o Telephone and facsimile charges, copying, printing, postage and similar
administrative expenses of Licensee;
o Insurance premiums for the Licensee's general liability, and any health,
auto, umbrella, property coverage and errors and omissions policies;
o Music licensing fees for Licensee's programming; and
o All transmitter site lease payments.
Monthly Fee. Programmer shall pay to Licensee beginning on the Effective
Date and on the first day of every month thereafter during the Term a Monthly
Fee of Four Thousand Dollars ($4,000.00) together with reimbursement for such
costs for the receptionist as are advanced by Licensee.
ATTACHMENT 3.1
Station Programming Policies
(2 pages)
In accordance with Section 3.1 of the foregoing Time Brokerage Agreement
dated __________, 19__ (the "Operating Agreement") between Onyx Broadcasting,
Inc. ("Licensee"), and NCR II, Inc. ("Programmer") for the operation of radio
station KTRR-FM, Loveland, Colorado (the "Station"), Programmer shall comply
with the following programming policies of Licensee.
1. Controversial Issues. Any discussion of controversial issues of public
importance will be reasonably balanced with the presentation of contrasting
viewpoints in the course of overall programming; no attacks on the honesty,
integrity or like personal qualities of any person or group of persons will be
made during the discussions of controversial issues of public importance; and,
during the course of political campaigns, the programs are not to be used as a
forum for editorializing about individual candidates.
2. No Plugola or Payola. The mention of any business activity or "plug"
for any commercial, professional or other related endeavor, except where
contained in an actual commercial message of a sponsor, is prohibited. No
commercial messages (plugs) or undue references shall be made in programming
presented over the Station to any business venture, profit making activity or
other interest (other than noncommercial announcements for bona fide charities,
church activities or other public service activities) in which Programmer is
directly or indirectly interested without the same having been approved in
advance by the Stations' Manager and such broadcast being announced as sponsored
material.
3. No Gambling. Any form of gambling on a program is prohibited. This
provision shall not prohibit the broadcast of information concerning
state-operated lotteries or other contests that are lotteries but are not in
violation of state or federal law.
4. Election Procedures. At least 90 days before the start of any election
campaign, Programmer will review with the Station's Manager the rates that will
be charged for the time to be sold to candidates for public office or their
supporters to make certain that such rates conform with the applicable law and
Station policy.
5. Required Announcements. Programmer will broadcast (i) an announcement
in a form satisfactory to Licensee at the beginning of each hour to identify the
Station, and (ii) any other announcements required by applicable law or Station
policy.
------
1 of 2 (continued)
6. Credit Terms Advertising. Unless all applicable state and federal
guidelines relative to disclosure of credit terms are complied with, no
advertising of credit terms will be made over the Station beyond mention of the
fact that, if desired, credit terms are available.
7. No Illegal Announcements. No announcements or promotions prohibited by
law of any lottery or game of change will knowingly be broadcast over the
Station.
------
2 of 2 (continued)
ATTACHMENT 3.2
Programming Format
During the Term, the format of the Station shall be an adult mainstream
format, and shall not be changed to another format that is inconsistent
therewith without the prior consent of Licensee, which consent shall not be
unreasonably withheld.
ATTACHMENT 7.3
ASSETS PURCHASE AGREEMENT
(22 pages)
This agreement is entered into this ____ day of ________, 19__, by and
among NCR II, INC., a Virginia corporation (sometimes hereinafter, "Buyer"),
ONYX BROADCASTING, INC., a Delaware corporation ("Seller"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
of Fairfax County, Virginia ("Stockholder").
RECITALS
Seller is the broadcast licensee and owner of radio station KTRR-FM of
Loveland, Colorado (the "Station"); Stockholder is the sole owner of all of the
issued and outstanding shares of stock of Seller, and Seller heretofore has
entered into a Time Brokerage Agreement dated __________, 1996 with NCR II, Inc.
as "Programmer" for the Station, which agreement (the "Operating Agreement") is
in full force and effect and is not affected by this agreement. All terms
defined in the Operating Agreement shall have such meaning when used herein.
Buyer wishes to purchase from Seller, and Seller wishes to sell and transfer to
Buyer, substantially all of the Station's property and assets subject to the
Operating Agreement and the rights of Programmer thereunder, and Buyer wishes to
obtain an assignment of, and Seller wishes to assign and transfer to Buyer (or
its nominee), each operating license and authorization (as hereinafter further
defined, the "Licenses") issued by the Federal Communications Commission (the
"Commission") for the Station, all in the manner and upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of and relying upon the foregoing
recitals, each covenant, agreement, representation, and warranty set forth
herein and each act done pursuant to this agreement, the parties hereto agree as
follows:
1. PURCHASE AND SALE OF PROPERTY AND ASSETS:
1.1 Agreement to Purchase and to Sell. Upon and subject to (i)
compliance with all terms and conditions of this agreement, and (ii) the rights
of the Programmer under the Operating Agreement for Station during the Term
thereof, Buyer agrees to purchase from Seller, and Seller agrees to sell,
deliver, transfer, and convey to Buyer (or its nominee as to the Licenses) as an
operating business all right, title, and interest in and to substantially all of
the tangible and intangible property, rights, and assets of Station owned by
Seller, and excluding only the Excluded Property (jointly and severally the
"Property Sold").
1
1.2 Excluded Property. The following (the "Excluded Property") are
not part of the Property Sold and are not being sold to Buyer: Seller's (i)
notes, (ii) cash on hand or on deposit, (iii) accounts receivable, (iv) rights
under this agreement, (v) insurance policies insuring the Property Sold, (vi)
corporate stock records, seal, and minute book, (vii) the tower and the tower
site, and (viii) original financial and accounting records, and such items of
the Property Sold as may be disposed of by Seller before Closing for value and
in the ordinary course of Seller's business while acting in accordance with
Seller's past practices and in compliance with this agreement.
2. PURCHASE PRICE:
2.1 Purchase Price. As full and complete consideration for purchase
of the Property Sold, at Closing Buyer shall pay or deliver to Seller (a) cash
or immediately available federal funds payable by wire transfer in the amount of
Five Hundred Fifty Thousand and no/100 Dollars ($550,000.00), and (b) Buyer's
promissory note payable to Seller substantially in the form and containing the
substance of Exhibit 2.01 (the "Note"). If this agreement is executed and
entered into by and between the parties named above on or before June 1, 1997,
the original principal amount of such Note (the "Principal Amount") shall be One
Million Two Hundred Fifty Thousand and no/100 Dollars ($1,250,000.00). If
neither the Sale Option nor the Purchase Option shall have been exercised before
June 1, 1997, then on June 1, 1997, and on June 1 of each year thereafter until
either the Sale Option or the Purchase Option shall have been exercised, such
Principal Amount of the Note shall be increased by Seventy-Five Thousand and
no/100 Dollars ($75,000.00) and the amount of cash payable under (a) above shall
be increased by Seventy-Five Thousand and no/100 Dollars ($75,000.00). The
Principal Amount of the Note, together with the amount of item (a) above shall
constitute the "Purchase Price," which Purchase Price shall be adjusted,
however, as may be required by paragraph 2.2 and allocated as set forth in
Exhibit 2.01.1.
2.2 Adjustments. At and as of Closing on the Closing Date certain
adjustments in the Purchase Price shall be made ("Closing Adjustment(s)") as
follows:
(a) Seller's and Station's expenses incurred for or accrued
during all periods ending with, upon, or prior to Closing (regardless of when
assessed, determined, calculated, paid, or collected) shall be Seller's sole
responsibility, and at and as of Closing Station's paid and unpaid expenses
(excluding any income taxes) shall be prorated as appropriate between Buyer and
Seller and the Purchase Price adjusted accordingly, so that Seller shall be
responsible for and pay all of Station's expenses incurred or accrued for all
periods ending prior to the Closing and Buyer shall
2
be responsible for all of Station's expenses incurred or accrued thereafter, and
(b) also, the Purchase Price and Buyer's cash portion thereof
due at Closing shall be reduced as appropriate, without duplication, by (i) the
amount of any prepaid revenues received or extraordinary discounts given by
Seller for Station's goods or services to be delivered or rendered by Station
after the Closing Date, (ii) the amount of Seller's liabilities as of the
Closing Date for advertising time owed to vendors for trade of goods or services
received by Seller prior to the Closing Date, (iii) the amount of any reduction
in the Purchase Price required by paragraph 7.3. and (iv) by any amount
necessary to discharge, satisfy, or cure each Lien, other than Permitted Liens
(hereinafter defined), then applicable to any part of the Property Sold.
2.3 How Adjustments Payable. Each of the Closing Adjustments
(including any expenses payable pursuant to paragraph 10.1) shall be made by
adjustments to and be payable in and from cash at Closing by the party
responsible.
2.4 Security at Closing. Buyer shall execute and deliver to Seller
(a) a security agreement substantially in the form and substance of Exhibit 2.04
(the "Security Agreement"), and (b) a stock pledge agreement (the "Stock Pledge
Agreement") substantially in the form and substance of Exhibit 2.04.1, in each
case securing payment of the Note as and to the extent therein provided.
2.5 Deposit. Buyer has deposited cash in the amount of One Hundred
Thousand and no/100 Dollars ($100,000.00) (the "Deposit") with Old National
Trust Company, Evansville, Indiana, pursuant to the escrow agreement in the form
and containing the substance of Exhibit 2.05 (the "Escrow Agreement") entered
into this date. If Seller is not in default hereunder but Closing shall not
occur solely because of Buyer's material breach of this agreement, then Seller
may retain all or any part of the Deposit as a part of any damages that Seller
may suffer as a result of such default, without prejudice to any claim for
additional damages to Seller arising from Buyer's breach of or default under
this agreement, otherwise the Deposit, or the remaining part thereof, shall be
returned to Buyer upon Closing or other termination of this agreement, all as
more particularly provided for in the Escrow Agreement.
3. CLOSING; COVENANTS.
3.1 Closing, and Closing Date. Unless this agreement is earlier
terminated or its Closing is postponed as herein provided for, consummation of
the sale and purchase contemplated hereby ("Closing") shall take place beginning
at 10:00 o'clock
3
a.m., local time, at the offices of Messrs. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ("Seller's Counsel") on the date
designated by Buyer, which shall be between the fifth (5th) and tenth (10th)
business day following the date on which the Commission's consents to the
Applications (hereinafter defined) have become a Final Order (hereinafter
defined), or at such other time and place as Buyer and Seller hereafter may
agree upon in writing (such date of Closing as so determined, designated, agreed
upon, or postponed; hereinafter, the "Closing Date").
3.2 Duties of Seller at Closing. At Closing Seller agrees to and, at
Seller's sole expense [except as required by (g) below], shall tender and
deliver to Buyer at 10:00 o'clock a.m., local time on the Closing Date, in form
and substance reasonably satisfactory to Buyer and its counsel, each of the
following:
(a) such documents and duly executed instruments as shall be
necessary or appropriate to Closing and to carry out the transactions
contemplated by and the intent of this agreement, including, without limitation,
such instruments of conveyance, assignment, consent, or transfer as are
sufficient to assign, convey, transfer to, and vest in Buyer (and/or its nominee
as to the Licenses) the Licenses and all right, title, and interest in and to
each item and all of the Property Sold free and clear of all Liens except (i)
Permitted Liens and (ii) all rights of the Programmer under the Operating
Agreement and the Lien of the security agreement securing the same, which Lien
also shall be a Permitted Lien;
(b) subject to such Permitted Liens and the rights of
Programmer under the Operating Agreement, peaceful, exclusive, and unencumbered
possession of all tangible items of the Property Sold;
(c) a copy, certified by an appropriate officer of Seller as
being true and complete, of Seller's bylaws and articles of incorporation as
then in effect and of necessary corporate proceedings and resolutions duly
adopted by Seller's board of directors and shareholders;
(d) the legal opinion of Seller's Counsel dated as of the
Closing Date substantially in the form and containing the substance of Exhibit
3.02;
(e) a copy of a noncompetition agreement substantially in the
form of Exhibit 3.02.1 ("Noncompetition Agreement") dated as of the Closing Date
and duly executed by all parties thereto other than Buyer;
(f) a duly executed copy of each agreement, consent, waiver,
or approval described in paragraph 6.5 and of each
4
instrument necessary or effective to terminate on or before the Closing Date
each employee benefit plan as applicable to any of Station's employees;
(g) release of the Deposit to Buyer;
(h) each other document, opinion, waiver, consent,
certificate, statement, or instrument that this agreement requires Seller to
deliver;
(i) a lease substantially in the form and substance of Exhibit
3.02.2 (the "Tower Lease") dated as of the Closing and duly executed by all
parties thereto other than Buyer;
(j) a copy of such nondisturbance or similar agreement(s)
[collectively, the "Nondisturbance Instrument(s)"] as then reasonably may be
required by Buyer as to the Tower Lease, each to be executed by Seller and by
all other parties thereto other than Buyer and to be in form and substance
reasonably satisfactory to Buyer; and
(k) such net cash payment to Buyer as may be necessitated by
paragraph 2.3.
3.3 Duties of Buyer at Closing. Contemporaneously with Seller's
performance of its obligations described in paragraph 3.2, on Closing Buyer
agrees to and, at Buyer's sole expense, shall tender and deliver to Seller in
form and substance reasonably satisfactory to Seller and Seller's Counsel, each
of the following:
(a) the Purchase Price, adjusted and paid as herein agreed,
including the Note duly executed by Buyer;
(b) certified copies of any necessary resolutions authorizing
and approving Buyer's execution and delivery of this agreement and consummation
of the transactions contemplated hereby;
(c) subject to each Permitted Lien and to each Lien then
existing as to all or any part of the Property Sold, the Security Agreement duly
executed by Buyer;
(d) the legal opinion of Buyer's counsel dated as of the
Closing Date substantially in the form and containing the substance of Exhibit
3.03;
(e) a copy of the Noncompetition Agreement duly executed by
Buyer;
(f) a copy of the Stock Pledge Agreement duly executed by
Buyer;
5
(g) a copy of the Tower Lease duly executed by Buyer;
(h) a copy of an agreement duly executed by Seller, Buyer, and
the Programmer under the Operating Agreement dated as of the Closing Date and
substantially in the form and containing the substance of Exhibit 3.03.1;
(i) such net cash payment to Seller as may be necessitated by
paragraph 2.3, and
(j) such assumption agreement(s) as may be entered into by
Buyer pursuant to paragraph 3.4, duly executed by Buyer.
3.4 Certain Liabilities. Unless and except as Buyer hereafter may
otherwise expressly agree in an agreement executed by Buyer at Closing, Buyer
assumes no liability of Seller, contractual or otherwise, except for Seller's
obligations as Licensee under the Operating Agreement as reflected in Exhibit
3.03.1, and Seller covenants and agrees with and for the benefit of Buyer that
Seller will discharge all of Seller's liabilities and obligations in the
ordinary course, including all obligations for payment of Seller's accounts
payable.
3.5 Transfer Assurances. After Closing, on Buyer's reasonable
request Seller shall take or cause to be taken all such further actions and
shall execute, acknowledge, and deliver all such instruments as reasonably may
be required to memorialize or effectuate the transactions occurring at Closing
in order to ensure that Buyer receives and realizes all of Seller's rights in
the Property Sold as of Closing as herein provided for.
4. SELLER'S AND STOCKHOLDER'S REPRESENTATIONS AND WARRANTIES:
To induce Buyer to enter into and perform pursuant to this
agreement, Seller and Stockholder, jointly and severally, represent and warrant
to Buyer that each of the following is true:
4.1 Corporate Organization, Qualification, Authorization, Etc.
Seller is a corporation duly organized, validly existing, and in good standing
under the laws of the state of its incorporation, has no subsidiaries, has all
requisite corporate power and authority to conduct its business as now being
conducted, to own and (subject to the Operating Agreement and the Programmer's
rights thereunder) operate Station, and to own, possess, occupy, or use the
Property Sold.
4.2 Call Signs. Seller has the full and exclusive right to use the
call sign "KTRR" (FM) under Commission regulations, and as of the Closing Date
the use of such call sign
6
and such other names or slogans as are being or have been used by Seller will
not infringe upon or violate any use or right to use of or by any other person.
4.3 Seller's Licenses. As of the Closing Date Seller will hold such
valid licenses and authorizations issued by the Commission as are necessary to
own and operate the Station, including, as at present, a regular, seven-year,
unconditional license authorizing operation of Station KTRR-FM and each
auxiliary station license presently associated therewith (singly a "License";
collectively, the "Licenses"), all without material change or qualification.
Each License shall be in full force and effect, unimpaired by any act or
omission of Seller.
4.4 Environmental Matters. As of August 6, 1996, no part of the
Property Sold ever had been used (in violation of any law, rule, or regulation)
to generate, manufacture, refine, transport, release, treat, store, handle, or
dispose of any hazardous, industrial, toxic, or harmful substances, wastes, or
materials (e.g. asbestos, urea formaldehyde, polychlorinated biphenyls, or other
waste exhibiting hazardous characteristics) or any substance or element the
generation, release, storage, use, or handling of which was identified,
prohibited or regulated (singly, a "Hazardous Material"; collectively,
"Hazardous Materials") by or pursuant to any law, rule, or regulation (federal,
state, or local) regarding (a) health or safety, or (b) the effect on or use of
land, water, air, or the environment (e.g. the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended; 42 U.S.C.; ss.
6.01 et seq.; RCRA; or similar acts), or (c) the use, transport, handling,
storage, treatment, release, or disposal of any such Hazardous Materials
(singly, an "Environmental Law," collectively, the "Environmental Laws"). As of
such date, Seller always had complied with each such Environmental Law, and no
event had occurred and no condition existed or affected any part of the Property
Sold that, if known to the proper authorities, could have resulted in any
material complaint, notice, citation, action, proceeding, or investigation
before any authority in connection with any Hazardous Material or any
Environmental Law or the violation thereof or any claim against or liability to
Seller or Buyer arising out of or based on any Environmental Law or the breach
or enforcement thereof.
4.5 Conduct of Business; Absence of Change. During the last six
months, there has been no material, adverse change in the condition of the
Station's transmitter site or equipment or of the License.
4.6 Ownership of Station and Title to Property Sold. Except for the
presently existing Lien securing Programmer pursuant to the Operating Agreement
(and the security agreement securing Licensee's performance thereunder), except
as otherwise expressly
7
disclosed and described as permitted liens in Exhibit 4.06 ("Permitted Liens"),
and except for property leased by Seller pursuant to leases listed on Exhibit
4.15.1, at Closing Seller will be the sole owner of the Property Sold and will
have, and at and as of Closing, subject to the Operating Agreement and
Programmer's rights thereunder, will convey and transfer to Buyer, full and
exclusive legal, equitable, good, record (where applicable), and marketable
title to and all rights in (and the right to immediate, exclusive, peaceful, and
unencumbered possession of) the Property Sold free and clear of any and all
Liens except any then existing Permitted Liens, and Seller's said title is
warranted against the claims of any and all persons.
4.7 Execution. This agreement has been duly executed and delivered
by Seller and constitutes a legal, valid, and binding obligation of Seller
enforceable against Seller in accordance with its terms.
4.8 License and Permits. At Closing, Seller will hold all
franchises, licenses, certificates, or permits needed to possess, own, lease,
use, or occupy the Property Sold, to operate the Station, or to conduct
Station's present business; each will be in full force and effect according to
its terms, and no action will be pending or threatened looking toward the
amendment, revocation, restriction, or revision of any of them.
4.9 Tax Matters. Seller has properly and timely filed in correct
form with appropriate governmental authorities all tax returns required to be
filed by it; all taxes due and payable by Seller have been properly and timely
reported, determined, and paid, and Seller has no liability for payment of any
unpaid tax, interest thereon, or any related penalty.
4.10 Employee Status. As of Closing each of Station's employees
shall have been paid all wages, salaries, commissions, severance pay, vacation
pay, sick leave, or other pay, benefits, or entitlements due and payable by
Seller and earned or accrued by or for each such employee as of, or for any
period prior to, or as a result of Closing.
4.11 Labor Agreements; Working Conditions. Seller has no written or
oral contract, express or implied, with any of Station's employees and is not a
party to any contract with a labor organization or to any collective bargaining
agreement covering or relating to any of Station's employees. Seller has
complied with all laws, rules, and regulations relating to conditions of
employment or applicable to the hiring, employment, or discharge of Station's
employees, including those relating to civil rights, wages, hours, pay,
harassment, discrimination, disability, occupational safety and health,
collective bargaining, or the withholding and payment of taxes and
contributions. There are no
8
material claims or controversies pending or threatened between or concerning
Seller and any of its employees.
4.12 Benefit Plans. As a result of this agreement and Closing
hereunder, Buyer shall have and will incur no funding or other obligation or
liability in connection with any pension, profit-sharing, or other employee
benefit plan, its funding or termination, or any withdrawal therefrom, in whole
or in part.
4.13 Authorization for Agreement. Seller has full power and
authority to execute, perform, and deliver this agreement and to consummate the
transactions contemplated hereby. Seller's execution of, delivery of,
performance of, and compliance with this agreement have been duly and validly
authorized by all necessary corporate action.
4.14 Conveyances, Etc. When delivered to Buyer at Closing, the
instruments of conveyance, assignment, consent, or transfer will constitute
legal, valid, and binding obligations of each party thereto, and such
instruments will be effective to vest in Buyer, and as of Closing Buyer will
thereby receive and become the sole, vested owner of all right, title, and
interest in and to the Property Sold as and to the extent herein provided.
4.15 Agreements, Contracts, Leases, Etc. Exhibit 4.15.1 contains an
accurate and complete list and brief description of each material agreement,
obligation, contract, lease, or commitment (oral or written, express or implied)
applicable to or affecting Station as to which Seller is a party, or by which it
is bound, or that applies to or affects the Property Sold or any of Station's
properties or assets (the "Contracts"), and an accurate and complete copy or
statement of the terms of each such Contract has been or forthwith will be
supplied to Buyer. Except as so listed and described in Exhibit 4.15.1 Seller is
not a party to any other material agreement (oral or written, express or
implied) that affects Station or all or any part of the Property Sold. Each of
the Contracts is in full force and effect and is legal, valid, binding, and
enforceable in accordance with its terms; Seller has not defaulted as to or
breached, nor has it received notice of any claim or assertion that it has
defaulted as to or breached, any term or condition of any Contract, or other
agreement applicable to it, and no event has occurred that with notice or the
lapse of time, or both, would constitute such a breach or default. At Closing
all of Seller's rights under each Contract will be assignable to Buyer, and
Seller knows of no term, condition, or provision of, or event affecting, any
Contract that might effect the validity, continuation, or effectiveness thereof,
or that might prevent Buyer from realizing Seller's present rights therein and
all benefits to accrue thereunder after Closing.
9
4.16 Statements, Etc., True and Not Misleading. No representation or
warranty made by Seller in this agreement, and no record, document, instrument,
or certificate furnished or to be furnished by Seller to Buyer (its
representatives, agents, attorneys, or accountants) pursuant to this agreement,
or in connection with Closing or the transactions contemplated hereby, contains
or will contain any untrue statement of a material fact.
4.17 Investment. On Closing, Seller will take the Note for its own
account, for investment purposes only, and not with a view or intention to
distribute or otherwise dispose of all or any part thereof. Seller understands
that the Note is to be issued without registration under any securities law and
pursuant to an exemption from registration under the provisions of the
Securities Act of 1933 as amended (the "Act") and that Seller (or other holder
thereof) may not hypothecate or otherwise transfer or dispose of the Note except
upon registration under the Act, unless an exemption from registration
provisions of the Act is available. Seller agrees that before it transfers or
disposes of the Note it will give Buyer notice of such proposed disposition, and
any new note issued by Buyer under such circumstances shall bear a legend
similar in form and substance to that appearing on Exhibit 2.01. Seller is aware
that Buyer is a newly-formed entity with limited capital and no previous
financial or operating history and that for the foreseeable future payment of
the Note will depend upon Buyer's revenues from the Station and its use of the
Property Sold. Seller is able to bear the risk of holding the Note for an
indefinite period of time and has received (or had free access to) all requisite
information, financial or otherwise, concerning Buyer.
5. CONDUCT PRIOR TO CLOSING:
Seller covenants and agrees that prior to and until Closing:
5.1 Conduct of Business. Seller will conduct its business
diligently, only in the ordinary course, in accordance with its customary
policies, and except as may otherwise be expressly permitted or required hereby,
without Buyer's prior written consent expressly identifying and referring to
this paragraph 5.1, Seller will not directly or indirectly do or agree to do any
one or more of the following:
(a) encumber, mortgage, pledge, or subject the Property Sold
or any part thereof to any Lien, security interest, charge, or encumbrance;
(b) grant, agree to, offer, or pay any kickback, discount,
incentive payment, commission, or promotional or other allowance to any
advertiser or customer, or sell or agree to sell
10
or otherwise dispose of any part of the Property Sold other than for value and
in the ordinary and usual course of business;
(c) terminate, restrict, or waive any right materially
affecting the value of the Property Sold;
(d) conduct its business other than in compliance with all
laws, rules, and regulations of all local, state, and federal governmental
authorities, entities, and agencies;
(e) enter into any employment contract or lease that will
survive Closing, or
(f) enter into any contract or other commitment binding upon
Seller for a period of more than thirty (30) days or other than in the ordinary
course of business.
5.2 Reports; Taxes; Etc. Seller will properly and timely file all
necessary reports or returns with federal, state, foreign, local, or other
authorities (including taxing authorities) and on or before the Closing Date
will pay all taxes, charges, or assessments then due and payable by Seller or
the Station.
5.3 Termination of Plans. Without any liability to Buyer, Seller, at
its sole expense, shall terminate or cause to be terminated each pension,
profit-sharing, or other employee benefit plan of Seller as applicable to the
Station's employees, all in accordance with the provisions thereof and
applicable laws, rules, and regulations and shall satisfy and discharge each
withdrawal, termination, or other liability thereunder.
5.4 Commission Applications. Within ten (10) business days after the
date of this agreement, Seller will join with Buyer in filing or causing to be
filed with the Commission appropriate, formal applications (singly an
"Application"; collectively, the "Applications") for consent to the assignment
from Seller to Buyer of each of the Station's Licenses and authorizations. Each
party will pay one-half of the filing fees for the Applications. Thereafter
Seller will cooperate with Buyer in processing each of the Applications to a
conclusion, and Buyer and Seller will promptly supply all information, filings,
and documentation required by the Commission. Each of Buyer and Seller shall pay
such fees and expenses as may be incurred by it or imposed on such party by the
Commission during such process.
5.5 Licenses' Renewals. As and when prudent or necessary under the
Commission's orders, rules, or regulations Seller will promptly tender for
filing with the Commission a formal application for renewal of each of the
Licenses in form, substance, and content acceptable to the Commission, without
any deficiency material to the Commission, and will diligently process each such
11
application to a favorable conclusion, causing each License to be renewed,
without termination, lapse, interruption, delay, or material modification of or
adverse change in its content from the present, for the regular term beginning
immediately upon expiration of each License's current term.
6. CONDITIONS TO BUYER'S OBLIGATIONS:
As conditions precedent for the sole benefit of Buyer, which Buyer
may waive (but only by and to the extent of its express, written consent given
hereafter), Closing and each obligation of Buyer under this agreement shall be
subject to and conditioned upon Buyer being satisfied as to each of the
following:
6.1 Compliance with Agreement; No Prohibition. Until, at, or prior
to Closing, each material term, covenant, agreement, and condition of this
agreement to be complied with or performed by Seller shall have been complied
with or performed, and nothing then shall restrain, inhibit, or prohibit
Closing.
6.2 Representations and Warranties; Certificate. Unless waived, each
of Seller's and Stockholder's representations and warranties contained herein
shall in all material respects have been true and correct when made, shall be
deemed to be made again at and as of Closing, and shall then be in all material
respects true and correct, and Seller shall have delivered to Buyer a
certificate to such effect, executed by Stockholder, in such form and containing
such substance and giving Buyer such assurances as Buyer reasonably may require.
6.3 Delivery. Buyer shall not have terminated this agreement as
permitted hereby, and Seller shall have delivered to Buyer each item required by
paragraph 3.2.
6.4 Environmental. A Phase I environmental site assessment of the
Real Property shall have been completed prior to Closing by a company chosen by
Buyer, the cost for such assessment to be borne by Buyer, the results thereof
shall have been reasonably satisfactory to Buyer, and no part of the Property
Sold shall have been contaminated by any Hazardous Material.
6.5 Approvals and Consents. All agreements, consents, waivers, or
approvals necessary or appropriate for Closing or for consummation of the
transactions contemplated hereby shall have been obtained from such parties and
in such form and substance as is reasonably satisfactory to Buyer, and copies
thereof delivered to Buyer.
6.6 Final Orders. The Commission's consent to the Applications shall
have been obtained without any condition adverse to Buyer, and such consent
shall have become a final order (meaning
12
that it shall no longer be subject to appeal, challenge, review, or
reconsideration on any administrative or judicial level, that the time for
initiating any further appeal, challenge, review, or reconsideration of any kind
shall have expired, and that no action, or request for a stay is pending
concerning any Application) ("Final Order") and shall be effective, unchanged,
and unamended as of Closing.
6.7 Possession. Subject to the Operating Agreement, Programmer's
rights thereunder, and to any Permitted Liens, Seller shall have delivered to
Buyer peaceful possession of the Property Sold, including all of Station's
properties and premises tenanted by Seller, and at Buyer's request Seller shall
have obtained and delivered to Buyer duly executed subordination or
Nondisturbance Instruments in form and substance reasonably satisfactory to
Buyer, assuring to Buyer quiet possession of any such leased property and
premises for the term of the lease.
6.8 Closing Adjustments. Buyer and Seller shall have agreed upon the
Closing Adjustments to be made at Closing, as memorialized by a closing
statement executed at Closing by Buyer and Seller.
7. INDEMNIFICATION AND RISK OF LOSS:
7.1 Subject to the limitations of paragraph 7.2:
(a) Buyer's Indemnity. From and after Closing, Seller and
Stockholder, jointly and severally, agree to indemnify, defend, and hold Buyer,
its owners, officers, agents, representatives, successors and assigns, jointly
and severally, harmless from and against each, any, and all actions, suits,
causes of action, losses, costs, claims, damages, response costs, liabilities,
fines, judgments, or expenses (including all consequential or incidental damages
and all attorneys' or experts' fees) (singly a "Claim"; collectively the
"Claims") asserted against or incurred or sustained by each, any, or all of them
as a result of, arising out of, based upon, or on account of, in whole or in
part, each, any, or all of the following: (i) any violation of any law, rule, or
regulation or any act or failure to act by Seller or any one or more of its
officers, directors, agents, representatives, servants, or employees (or any
other person or entity for which Seller is or may be held responsible), (ii) any
agreement made by, claim against, or liability of Seller (except such Claims as
are caused by Buyer pursuant to assumption agreement(s) as described in
paragraph 3.4), (iii) the conduct of Seller's business or the ownership, use, or
operation of either or both of the Station or the Property Sold, or any part or
parts thereof, at any time prior to Closing, (iv) any illegal payment received,
directly or indirectly, by Seller at any time or times prior to Closing, (v) any
Lien existing at Closing on or as to any
13
part or all of the Property Sold, other than a Permitted Lien, (vi) any breach
of any representation or warranty made by Seller or Stockholder in this
agreement or in any certificate or other instrument delivered by or on behalf of
Seller pursuant to this agreement or in connection with Closing; (vii) any
breach of any covenant set forth in this agreement to be performed prior to or
after Closing by Seller or Stockholder; (viii) any liability or obligation
(whether absolute, accrued, contingent, or otherwise) assumed by Seller
hereunder. As to each Claim the obligations imposed hereby shall include, but
not be limited to, an obligation to pay to or for Buyer all costs incurred by or
for Buyer to investigate, defend, or settle such Claim and all amounts necessary
to put Buyer in the same position and condition that Buyer would have been in if
such Claim had not arisen.
(b) Seller's Indemnity. From and after Closing, Buyer agrees
to indemnify, defend, protect and hold Seller, its officers, directors,
affiliates, agents, representatives, successors and assigns harmless from and
against each, any, and all Claims asserted against or incurred or sustained by
each, any, or all of them as a result of, arising out of, based upon, or on
account of, in whole or in part, each, any, or all of the following: (i) any
breach of any representation or warranty made by Buyer in this Agreement or in
any certificate or other instrument delivered by or on behalf of Buyer pursuant
to this Agreement or in connection with Closing; (ii) any breach of any covenant
set forth in this agreement to be performed prior to or after Closing by Buyer;
(iii) any liability or obligation (whether absolute, accrued, contingent, or
otherwise) assumed by Buyer hereunder, or (iv) Buyer's operation of the Station
after the Closing Date.
7.2 Limitations on Indemnity. Any indemnity obligation of any party
shall be enforceable only after the aggregate amount of all Claims for which
such party is responsible for indemnity shall have exceeded $5,000 and shall
survive Closing but expire as to all Claims not made on or before the last day
of the twelfth (12th) full calendar month following Closing except for Claims
(i) for taxes or penalties, or (ii) based on any Lien on any part of the
Property Sold existing at or before Closing, or (iii) for violation of any
Environmental Law or the misuse of any Hazardous Material, or (iv) based on
uninsured title defect(s) applicable to any part of the Property Sold, and for
each such excepted Claim the obligation to indemnify shall survive until barred
by operation of law.
7.3 Risk of Loss. Until Closing, the risk of destruction of or loss
or damage to the Station or any part of the Property Sold arising from any
actual or proposed condemnation or taking of all or any part of the Property
Sold or of the Station by governmental authority or by exercise of the power of
eminent
14
domain, or from any fire, explosion, riot, flood, war, or other cause or
casualty shall remain with Seller. If Seller becomes aware of any such actual or
potential taking, loss, damage, or destruction, Seller will promptly notify
Buyer of all particulars thereof prior to Closing. If such damaged property is
material to Station's operations or value and is not completely replaced or
repaired and restored to its former condition by Seller before the Closing Date
then Buyer at its sole option may: (a) by notice to Seller postpone the Closing
Date or abandon and terminate this agreement and all obligations of Buyer
hereunder, or (b) effect Closing, in which case Seller shall assign and pay to
Buyer all insurance proceeds received or to be received by Seller with respect
to policies insuring the Property Sold and there shall be an appropriate
reduction in the Purchase Price to reflect the amount of any uninsured loss,
damage, or destruction to the Property Sold.
8. BUYER'S REPRESENTATIONS AND WARRANTIES:
To induce Seller to enter into and perform pursuant to this
agreement, Buyer represents and warrants to Seller that each of the following is
true:
8.1 Corporate Organization. Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the Commonwealth of
Virginia and has all requisite power and authority as such to conduct its
business as it is now being conducted and to own its properties and assets.
8.2 Authorization for Agreements. Buyer's execution and delivery of
this agreement have been duly and validly authorized by all necessary action on
the part of Buyer, and this agreement constitutes a valid and binding obligation
of Buyer.
8.3 FCC Qualifications. Buyer is qualified to be licensee of the
Station under the Communications Act of 1934, as amended, and the rules and
regulations of the FCC and knows of no facts that would delay the consummation
of the transactions contemplated by this agreement. Buyer has no reason to
believe that the FCC assignment contemplated herein might be challenged or might
not be granted by the FCC in the ordinary course. Buyer is financially qualified
to consummate the sale and purchase contemplated by this agreement.
8.4 Absence of Conflicting Agreements or Required Consents. Except
for the requirement of prior FCC consent, the execution, delivery and Closing of
this Agreement by Buyer: (a) do not and will not violate any provision of
Buyer's articles of incorporation and bylaws; (b) do not and will not require
the consent of any third party or governmental authority; (c) do not and will
not violate any law, judgment, order, injunction, decree,
15
rule, regulation, or ruling of any governmental authority applicable to Buyer;
and (d) do not and will not, either alone or with the giving of notice or the
passage of time, or both, conflict with, constitute grounds for termination or
acceleration of or result in a breach of the terms, conditions, or provisions
of, or constitute a default under any agreement, lease, instrument, license, or
permit to which Buyer is now subject.
8.5 Bankruptcy. No insolvency proceedings of any character,
including, without limitation, bankruptcy, receivership, reorganization,
composition, or arrangement with creditors, voluntary or involuntary, affecting
Buyer are pending or threatened, and Buyer has made no assignment for the
benefit of creditors or taken any action in contemplation of or which would
constitute the basis for the institution of such insolvency proceedings.
8.6 Ownership and Capitalization of Buyer. ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇
▇. ▇▇▇▇▇ own (directly or indirectly) at least 80% of the capital stock of
Buyer. Except for obligations to Seller under this agreement, Buyer has and at
Closing will have no material debt whatsoever except as permitted by Paragraph 3
of the Security Agreement. Buyer's obligations hereunder are not subject to a
contingency based on the availability or suitability of financing.
9. CONDITIONS TO SELLER'S OBLIGATIONS:
As conditions precedent for the sole benefit of Seller, which Seller
may waive (but only by and to the extent of its express, written consent given
hereafter), Closing and each obligation of Seller under this agreement shall be
subject to and conditioned upon Seller being satisfied of each of the following:
9.1 Delivery. Seller shall not have terminated this agreement as
permitted hereby, and Buyer shall have delivered to Seller each item as and when
required by paragraph 3.3.
9.2 Compliance with Agreement; No Prohibition. Until, at, or prior
to Closing, each material term, covenant, agreement, and condition of this
agreement to be complied with or performed by Buyer shall have been complied
with or performed, and nothing then shall restrain, inhibit, or prohibit
Closing.
9.3 Representations and Warranties. Unless waived, each of Buyer's
representations and warranties contained in Section 8 shall in all material
respects have been true and correct when made, shall be deemed to be made again
at and as of Closing, and shall then be in all material respects true and
correct, and Buyer shall have delivered to Seller a certificate to such effect,
executed by its President, in such form and containing such
16
substance and giving Seller such assurances as Seller reasonably may require.
9.4 Agreement. Buyer and Programmer shall have duly entered into,
executed, and delivered an agreement in the form and containing the substance of
Exhibit 3.03.1.
9.5 Operating Agreement. Buyer shall have complied in all material
particulars with its obligations as Programmer under the Operating Agreement,
including its obligations for all monthly fees payable thereunder.
9.6 Final Order. The conditions of paragraph 6.6 shall have been
met.
9.6 Compliance with Agreement; No Prohibition. Until, at, or prior
to Closing, each term, covenant, agreement, and condition of this agreement to
be complied with or performed by Buyer shall have been complied with or
performed, and nothing then shall restrain, inhibit, or prohibit Closing.
9.7 Approvals and Consents. All agreements, consents, waivers, or
approvals necessary or appropriate for Closing or for consummation of the
transactions contemplated hereby shall have been obtained from such parties and
in such form and substance as is reasonably satisfactory to Seller, and copies
thereof delivered to Seller.
9.8 Closing Adjustments. Buyer and Seller shall have agreed upon the
Closing Adjustments to be made at Closing, as memorialized by a closing
statement executed at Closing by Buyer and Seller.
10. MISCELLANEOUS:
10.1 Expenses. Except as may otherwise be provided in this
agreement, each party shall be solely responsible for and shall pay all costs
and expenses incurred by it in connection with the negotiation, preparation and
performance of and compliance with the terms of this agreement. All recordation,
transfer, documentary, excise, sales or use taxes or fees imposed on this
transaction shall be borne in equal shares by Buyer and Seller.
10.2 Notices. Each notice, consent, request, demand or other
communication required or permitted hereunder shall be in writing and shall be
deemed to have been duly given only upon the earlier of receipt (by hand
delivery, fax, or otherwise) or five (5) days after having been mailed,
certified or registered United States mail, postage prepaid, addressed as
follows:
17
if to Seller or Onyx Broadcasting, Inc.
Stockholder: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇'▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
copy to: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esquire
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
Suite 1600
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
if to Buyer: NCR II, Inc.
c/▇ ▇▇▇▇▇ Media Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇
copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
c/o Thompson & ▇▇▇▇▇▇▇▇, P.C.
100 Shockoe Slip
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or when so delivered or mailed to such other place or person as a party
hereafter from time to time may have designated in a prior written notice to the
other party.
10.3 Survival of Representations and Warranties. Each representation
or warranty made herein shall remain operative and in full force and effect
regardless of and shall not be affected by any investigation made or knowledge
obtained by or on behalf of Seller or Buyer prior to Closing and shall survive
Closing. From and after Closing, the right to indemnification under paragraph 7
of this agreement shall be the exclusive remedy of any party in connection with
any breach by another party of any representation, warranty, or covenant
contained in this agreement.
10.4 Termination.
(a) This agreement may be terminated by either Buyer or
Seller, if the party seeking to terminate is not in material default or breach
of this agreement or the Operating Agreement, upon written notice to the other
after the occurrence of any of the following (assuming that any required notice
has been duly given): (i) if the other party has defaulted in any material
respect in the observance or in the due and timely performance of any of its
covenants or agreements contained herein, and such default has been neither
cured nor waived by the earlier to occur of (x) the Closing Date and (y) the
thirtieth (30th) day after written notice of such default; (ii) if the Operating
Agreement has been terminated pursuant to Section 5 thereof; (iii) if there
shall
18
be in effect any judgment, final decree, or order that prevents or makes
unlawful the Closing, or if the Commission shall have released a hearing
designation order requiring a formal hearing on any of the Applications; or (iv)
if the Commission has not granted the Application(s) within three hundred sixty
(360) days of filing.
(b) This agreement may be terminated by Buyer, upon written
notice to Seller: (i) pursuant to Section 7.3 (Risk of Loss); (ii) if regular
broadcast transmission of the Station has been interrupted for a period of more
than seven (7) consecutive calendar days for any reason other than an Act of
God; or (iii) if the Commission makes a material, adverse change in any of the
Station's broadcast Licenses.
(c) This agreement may be terminated by mutual written consent
of Buyer and Seller.
(d) The termination of this agreement pursuant to this
paragraph 10.4 shall not relieve any party of any liability for breach of this
agreement prior to the date of termination.
10.5 Successors and Assigns. This agreement and each provision
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns and may not be assigned without the
prior written consent of all parties hereto. For purposes of this Section 10.5,
an assignment shall include any change in control of a party whether by sale of
stock, merger, operation of law, or otherwise.
10.6 Indemnity Concerning Brokers. Buyer and Seller represent and
warrant each to the other that no broker has been used, employed, or connected
with this transaction, and each party agrees to indemnify, defend, and save
harmless the other and its officers, agents, and employees against each
liability, cost, or expense, including attorneys' fees, that may be asserted on
account of any and all commissions, fees, expenses, or charges due and owing on
account of any brokerage services related to this transaction incurred by reason
of any agreement made by such party with any broker or finder.
10.7 Amendment and Waiver. Except for a waiver by Seller pursuant to
Section 9 or by Buyer pursuant to Section 6, no provision of this agreement may
be amended or its observance waived (whether generally or in a particular
instance and whether retroactively or prospectively) except with and by the
waiving party's prior, express, written consent. No other act, failure to act,
or course of dealing shall cause or constitute a waiver by Buyer or Seller.
19
10.8 Definitions. Wherever used in this agreement each of the
following terms shall have the meaning defined in the paragraphs of this
agreement identified below:
Term Definition
---- ----------
Act P. 4.18
Application(s) P. 5.4
Buyer Preamble
Buyer's Commission P. 3.6
Claim(s) P. 7.1
Closing P. 3.1
Closing Adjustments P. 2.2
Closing Date P. 3.1
Collection Costs P. 3.6
Collection Period P. 3.6
Commission Recitals
Contracts P. 4.15
Deposit P. 2.5
Environmental Law(s) P. 4.4
Escrow Agreement P. 2.5
Excluded Property P. 1.2
Final Order P. 6.6
Hazardous Material(s) P. 4.4
License(s) Recitals, P. 4.3
Lien(s) P. 10.9
Noncompetition Agreement P. 3.2
Nondisturbance Instruments P. 3.2
Note P. 2.1
Operating Agreement Recitals
Permitted Liens P. 4.6
Property Sold P. 1.1
Purchase Price P. 2.1
Real Property P. 1.1
Security Agreement P. 2.4
Seller Preamble
Seller's Counsel P. 3.1
Station Recitals
Stockholder Preamble
Stock Pledge Agreement P. 2.4
Tower Lease P. 3.2
10.9 Additional Definitions. Wherever used in this agreement, the
term "Liens" (singly, "Lien") shall mean and include each, any, and all liens,
mortgages, security interests, pledges, title retention devices, claims (legal
or equitable, including without limitation, liability to or claims of any taxing
authority, creditor, or other person), conditional sale or other agreements,
encumbrances, leases, trusts, options, servitudes, rights, charges, assessments,
consignments or bailments, reservations, exceptions, encroachments, easements,
rights-of-way, conditions, restrictions,
20
imperfections or deficiencies of title, or liabilities of any nature and however
arising [including those arising from violation of or noncompliance with any
law, ordinance, rule, or regulation (including, without limitation, municipal
ordinances relating to the zoning, occupancy, or use of real property)], whether
recorded or unrecorded, ▇▇▇▇▇▇ or inchoate, or appurtenant or non-appurtenant,
and whether arising by operation of law or otherwise, whether dependent on or
independent of possession, whether known or unknown, and whether now in
existence or to come into existence merely by the giving of notice or the lapse
of time, or both.
10.10 Control of the Station. Until Closing, Buyer will not directly
or indirectly control, supervise, or direct or attempt to control, supervise, or
direct the Station's operations contrary to Commission rules and regulations.
10.11 Governing Law. This agreement, its enforceability,
interpretation, and the legal relationships between the parties created hereby
shall be governed by and construed in accordance with the laws of the State of
Virginia, excluding those relating to choice of law or conflicts of laws. Any
suit, action, or proceeding with respect to this agreement, or any judgment
entered by any court in respect thereof, may be brought in the courts of the
Commonwealth of Virginia or in the U.S. District Court for the Eastern District
of Virginia, and the nonexclusive jurisdiction of those courts for the purpose
of any suit, action, or proceeding is hereby accepted by the parties hereto. In
addition, to the fullest extent permitted by law, any objection that any party
may now or hereafter have to the laying of venue of any suit, action, or
proceeding arising out of or relating to this agreement or any judgment entered
by any court in respect thereof, in the Commonwealth of Virginia is hereby
waived, and any claim that any suit, action, or proceeding brought in the
Commonwealth of Virginia has been brought in an inconvenient forum is hereby
further irrevocably waived. Buyer hereby further agrees that if any such suit,
action, or proceeding is pending in more than one jurisdiction, then Seller's
selection of the forum shall be binding upon the parties hereto.
10.12 Headings. The headings of the Sections and paragraphs of this
agreement are for convenience only and are not a substantive part hereof.
10.13 Integration. This agreement, including its exhibits, which are
a material part hereof and are incorporated herein by reference, contains the
entire understanding of the parties with respect to the subject matter hereof.
10.14 Counterparts. This instrument may be executed in any number of
counterparts (each of which shall constitute an original) and when Seller and
Buyer shall have executed at least
21
one such counterpart shall constitute but one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the day, month, and year first above written.
Buyer
NCR II, INC.
by________________________________
a duly authorized officer
Seller
ONYX BROADCASTING, INC.
by_________________________________
a duly authorized officer
Stockholder
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
22