ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made the 27th day of January, 1999, by
and between New Century Arizona, LLC ("NCA"), New Century Arizona License
Partnership ("NCALP"; and together with NCA, "Seller") and Heftel
Broadcasting Corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, NCALP is the licensee of Radio Station ▇▇▇▇-FM (the
"Station"), licensed to Paradise Valley, Arizona and authorized by the
Federal Communications Commission (the "FCC"), and Seller owns, or is the
lessee of, the assets which are used in the operation of the Station; and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, certain properties and assets relating to the Station
as described herein under the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as
follows:
1. PURCHASE AND SALE OF ASSETS.
1.1 PURCHASE AND SALE OF STATION ASSETS. Subject to the conditions
set forth in this Agreement, at the Closing (as defined hereinafter), Seller
shall, or if necessary shall cause its affiliated companies to, assign,
transfer, convey and deliver to Purchaser, and Purchaser shall purchase from
Seller and such affiliates of Seller, the fee, licensee or lessee interest
in and to the following assets used in the operation of the Station (the
"Station Assets"), free and clear of all liens, security interests, charges,
encumbrances and rights of others, except as provided below:
(a) The licenses, construction permits or authorizations issued by or
pending before the FCC or any other governmental authority for use in the
operation of the Station that are set forth on Schedule I attached hereto,
together with any and all renewals, extensions and modifications thereof (the
"Governmental Licenses");
(b) The real and personal property, tangible or intangible, owned or
leased by Seller and used in the operation of the Station set forth on Schedule
II hereto, together with replacements thereof and additions thereto made between
the date hereof and the Closing;
(c) The ▇▇▇▇-FM call letters;
(d) Advertising credits (not less than $150,000 in amount and in form
and type acceptable to Purchaser) in favor of the Seller and/or the Station
from the Univision television broadcasting station affiliate in the Phoenix
market; and
(e) Copies of the Station's FCC logs, all materials maintained in the
Station's FCC public file, technical data and records relating to the Station
Assets.
All other assets of any nature whatsoever shall be retained by Seller and
no rights therein shall be transferred to Purchaser.
1.2 ASSUMED LIABILITIES. At the Closing, Purchaser shall assume the
specified contractual obligations of the Station listed on Schedule III hereto,
as such contracts may be amended through the Closing Date with the mutual
consent of Seller and Purchaser (collectively, the "Assumed Liabilities"), and
Purchaser agrees to pay and perform the Assumed Liabilities after the Closing
Date, when and as such payment and performance obligations come due. Except
as specifically set forth on such Schedule III, Purchaser does not assume and
shall in no event be liable for any debt, obligation, responsibility or
liability of the Station or Seller. Purchaser is and shall remain liable for
any obligation and/or liability incurred by Purchaser at any time.
2. CONSIDERATION; CLOSING.
2.1 PURCHASE PRICE. The consideration to be received by Seller in
exchange for the Station Assets shall be $18,300,000 in cash, payable in
immediately available funds at Closing. Purchaser and Seller agree to allocate
the foregoing purchase price for federal income tax purposes among the Station
Assets in the manner set forth on Schedule IV. Purchaser shall bear the costs
of any appraisals of the Station Assets made for such purposes. Such appraisals
shall be made by Bond & ▇▇▇▇▇▇, or such other qualified appraisers selected by
Purchaser.
2.2 TIME OF CLOSING.
(a) A closing (the "Closing") for the sale and purchase of the Station
Assets shall be held at the offices of Seller's counsel in Phoenix, Arizona (or
such other place as may be agreed upon by the parties in writing) on the date
which is the latest of (i) the 10th day after the FCC Order (as defined
hereinafter) or (ii) the second business day after the satisfaction of all of
the conditions precedent to the obligations of Purchaser and Seller hereunder,
or (iii) such other date as may be mutually agreed upon by the parties in
writing (the "Closing Date"). Notwithstanding the foregoing, in no event shall
the Closing occur prior to January 15, 1999. The Closing shall be deemed to be
effective as of 12:01 a.m. on the Closing Date.
(b) In order to consummate the transfer of the Station Assets, Seller
and Purchaser agree to use their best efforts and cooperation to file, within
ten business days after the date hereof, an assignment of license application
(the "FCC Application") requesting FCC consent to the assignment from Seller
to Purchaser of all Governmental Licenses used in the operation of the
Station. The parties agree that the FCC Application will be prosecuted with
mutual cooperation, reasonable best efforts, in good faith and with due
diligence. The parties agree to use their reasonable best efforts to file
additional information or amendments requested by the FCC orally or in
writing as rapidly as possible after such request and, in any
event, to commence preparation of such additional information or amendments
immediately upon request and to complete and file the same with the FCC as
rapidly as practical. Each party will be solely responsible for the expenses
incurred by it in the preparation, filing and prosecution of the FCC
Application (it being understood that the parties will bear equally the FCC
filing fee). As used herein, the term "FCC Order" shall mean that the FCC
has granted or given its consent, without any condition materially adverse to
Purchaser or Seller, to the assignment of the Governmental Licenses; and the
term "Final Order" shall mean that the FCC Order shall have become final,
that the normally applicable time period for filing any protests, requests
for stay, reconsideration by the FCC, petitions for rehearing or appeal of
such order shall have expired, and that no protest, request for stay,
reconsideration by the FCC, petition for rehearing or appeal of such order
shall be pending.
(c) To the extent required by the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended, and the rules and regulations promulgated
thereunder (the "HSR Act"), the parties further agree to use their best efforts
to make any necessary filings under the HSR Act, within ten days after the date
hereof. The fees associated with any filings made pursuant to the HSR Act shall
be split equally between the parties (it being understood that the Purchaser
shall advance Seller's portion of such fee at the time of filing and be
reimbursed in the form of a deduction from the purchase price).
2.3 CLOSING PROCEDURE. At the Closing, Seller shall deliver to
Purchaser such bills of sale, instruments of assignment, transfer and conveyance
and similar documents as Purchaser shall reasonably request. Against such
delivery, Purchaser shall (i) issue and deliver to Seller the purchase price in
accordance with Section 2.1 above and (ii) execute and deliver the assumption
agreements with respect to the Assumed Liabilities as are contemplated by
Section 1.2 hereof. Each party will cause to be prepared, executed and
delivered all other documents required to be delivered by such party pursuant to
this Agreement and all other appropriate and customary documents as another
party or its counsel may reasonably request for the purpose of consummating the
transactions contemplated by this Agreement. All actions taken at the Closing
shall be deemed to have been taken simultaneously at the time the last of any
such actions is taken or completed.
3. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby represents and warrants to Purchaser, as follows:
3.1 ORGANIZATION; GOOD STANDING. NCA is a limited liability company
duly organized, validly existing and in good standing under the laws of the
state of Delaware, and has all requisite power and authority to own and lease
its properties and carry on its business as currently conducted. NCALP is a
general partnership duly organized, validly existing and in good standing under
the laws of the state of Delaware, and has all requisite power and authority to
own and lease its properties and carry on its business as currently conducted.
3.2 DUE AUTHORIZATION. Subject to the FCC Order and the Final Order,
Seller has full power and authority to enter into and perform this Agreement and
to carry out the transactions contemplated hereby. Seller has taken all
necessary action to approve the
execution and delivery of this Agreement and the transactions contemplated
hereby. This Agreement constitutes the legal, valid and binding obligation
of Seller, enforceable against it in accordance with its terms, except as
may be limited by the availability of equitable remedies or by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally.
3.3 EXECUTION AND DELIVERY. Neither the execution and delivery by
Seller of this Agreement nor the consummation by it of the transactions
contemplated hereby will: (i) conflict with or result in a breach of the
Certificate of Formation, Operating Agreement or Partnership Agreement, as
applicable, of Seller (ii) subject to the FCC Order and Final Order, violate any
statute, law, rule or regulation or any order, writ, injunction or decree of any
court or governmental authority, which violation, either individually or in the
aggregate, might reasonably be expected to have a material adverse effect on the
business or operations of Seller or Purchaser's ownership of the Station
Assets; or (iii) except as disclosed on Schedule V, violate or conflict with or
constitute a default under (or give rise to any right of termination,
cancellation or acceleration under), or result in the creation of any lien on
any of the Station Assets pursuant to, any material agreement, indenture,
mortgage or other instrument to which Seller is a party or by which it is
bound or affected. Notwithstanding the foregoing, Seller believes that upon the
filing of the FCC Application or shortly thereafter, the Station will lose a
substantial number of employees and a substantial amount of its revenues.
3.4 GOVERNMENTAL CONSENTS. No approval, authorization, consent, order
or other action of, or filing with, any governmental authority or administrative
agency is required in connection with the execution and delivery by Seller of
this Agreement or the consummation of the transactions contemplated hereby or
thereby, other than those of the FCC or under the HSR Act.
3.5 TITLE TO PERSONAL PROPERTY ASSETS. Except for leased or licensed
property, Seller is the sole and exclusive legal owner of all right, title and
interest in, and when delivered to Purchaser, the Station Assets constituting
personal property shall be free and clear of liens, claims and encumbrances
except liens for taxes not yet payable, and liens permitted or incurred by
Purchaser.
3.6 REAL ESTATE.
(a) Subject to the following sentence, Seller has a valid, binding and
enforceable leasehold interest at its transmitter site located at ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ (the "Real Estate"). A true, complete and
correct copy of the lease with respect to the Real Estate has been furnished to
Purchaser.
(b) Seller has not received any notice of, and has no knowledge of,
any material violation of any zoning, building, health, fire, water use or
similar statute, ordinance, law, regulation or code in connection with any of
the Real Estate. To the knowledge of Seller, no fact or condition exists
which would result in the termination or impairment of access of the
Station to the Real Estate or discontinuation of necessary sewer, water,
electrical, gas, telephone or other utilities or services.
(c) To Seller's knowledge, no hazardous or toxic material (as
hereinafter defined) exists in any structure located on, or exists on or
under the surface of, any of the Real Estate which is, in any case, in
material violation by Seller of applicable environmental law. For purposes
of this Section, "hazardous or toxic material" shall mean waste, substance,
materials, smoke, gas or particulate matter designated as hazardous, toxic or
dangerous under any environmental law. For purposes of this Section,
"environmental law" shall include the Comprehensive Environmental Response
Compensation and Liability Act, the Clean Air Act, the Clean Water Act and
any other applicable federal, state or local environmental, health or safety
law, rule or regulation relating to or imposing liability or standards
concerning or in connection with hazardous, toxic or dangerous waste,
substance, materials, smoke, gas or particulate matter.
3.7 GOVERNMENTAL LICENSES AND REPORTS.
(a) Schedule I lists and accurately describes all of the Governmental
Licenses. Seller has furnished to Purchaser true and accurate copies of all
such Governmental Licenses. Each Governmental License is in full force and
effect and is valid under applicable federal, state and local laws; and Seller
has not done anything which (whether with or without notice, lapse of time or
the happening or occurrence of any other event) is reasonably likely to result
in the revocation or termination of any Governmental License or the imposition
of any restriction of such a nature as might reasonably be expected to adversely
affect the operation of the Station as now conducted, except for proceedings of
a legislative or rule-making nature intended to affect the broadcasting industry
generally.
(b) With respect to the Station, Seller has duly filed all material
reports required to be filed by law or applicable rule, regulation, order, writ
or decree of any court, governmental commission, body or instrumentality and has
made payment of all charges and other payments, if any, shown by such reports to
be due and payable, except where the failure to so file or make payment would
not have a material adverse effect upon the operations of the Station or where
such payments are being contested in good faith. All reports required to be
filed by Seller with the FCC with respect to the Station have been filed, except
where the failure to so file would not have a material adverse effect upon the
Station.
3.8 TAXES. All tax reports and returns required to be filed by or
relating to the Station Assets or operations of the Station (including sales,
use, property and employment taxes) have been filed with the appropriate
federal, state and local governmental agencies, and there have been paid all
taxes, penalties, interest, deficiencies, assessments or other charges due as
reflected on the filed returns or claimed to be due by such federal, state or
local taxing authorities (other than taxes, deficiencies, assessments or claims
which are being contested in good faith and which in the aggregate are not
material); (ii) there are no examinations or audits pending or unresolved
examinations or audit issues with respect to Seller's federal, state or local
tax returns; (iii) all additional taxes, if any, assessed as a result of such
examinations or audits have been paid; and (iv) there are no pending claims or
proceedings relating to, or
asserted for, taxes, penalties, interest, deficiencies or assessments against
the Station Assets.
3.9 LITIGATION. There is no order of any court, governmental agency
or authority and no action, suit, proceeding or publicly disclosed
investigation, judicial, administrative or otherwise that is pending or, to
Seller's knowledge, threatened against the Station which, if adversely
determined, might materially and adversely affect the business, operations,
properties, assets or conditions (financial or otherwise) of the Station or
which challenges the validity or propriety of any of the transactions
contemplated by this Agreement.
3.10 CALL LETTERS. Other than as set forth on Schedule 3.10 hereto,
there are no agreements in effect relating to the use of the ▇▇▇▇-FM call
letters by the Station or by Seller.
3.11 FINDERS AND BROKERS. Other than Star Media Group (the fees and
expenses of which shall be borne by Seller), no person has as a result of any
agreement entered into by Seller any valid claim against any of the parties
hereto for a brokerage commission, finder's fee or other like payment.
3.12 NO OTHER REPRESENTATIONS. Except for the express representations
and warranties contained in this Section 3, Seller makes no other
representations or warranties of any nature whatsoever, and Seller hereby
disclaims any other representations and warranties of any nature whatsoever.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents and warrants to Seller as follows:
4.1 ORGANIZATION AND GOOD STANDING. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of Delaware and
has all requisite power and authority to own and lease its properties and carry
on its business as currently conducted.
4.2 DUE AUTHORIZATION. Subject to the FCC Order and Final Order,
Purchaser has full power and authority to enter into and perform this Agreement
and to carry out its obligations hereunder. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of Purchaser.
This Agreement has been duly executed and delivered by Purchaser and constitutes
the legal, valid and binding obligation of Purchaser, enforceable against it in
accordance with its respective terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally or general equitable principles.
4.3 EXECUTION AND DELIVERY. Neither the execution and delivery by
Purchaser of this Agreement nor the consummation by it of the transactions
contemplated hereby will: (i) conflict with or result in a breach of the
Articles of Incorporation or Bylaws of Purchaser; (ii) subject to the FCC Order
and Final Order, violate any law, statute, rule or regulation or any
order, writ, injunction or decree of any court or governmental authority; or
(iii) violate or conflict with or constitute a default under (or give rise to
any right of termination, cancellation or acceleration under) any indenture,
mortgage, lease, contract or other instrument to which Purchaser is a party
or by which it is bound or affected.
4.4 CONSENTS. No consent, approval, authorization, license, exemption
of, filing or registration with any court, governmental authority, commission,
board, bureau, agency or instrumentality, domestic or foreign, is required by
Purchaser in connection with the execution and delivery of this Agreement or the
consummation by it of any transaction contemplated hereby, other than the
consent of the FCC or under the HSR Act. No approval, authorization or consent
of any other third party is required in connection with the execution and
delivery by Purchaser of this Agreement and the consummation of the transactions
contemplated hereby, except as may have been previously obtained by Purchaser.
Purchaser warrants that it is legally qualified to become a licensee of the
Station and is aware of no impediment to the approval by the FCC of the
assignment of the Governmental Licenses to Purchaser. To Purchaser's knowledge,
Purchaser's acquisition of the Station Assets will not require a waiver of any
FCC rule, regulation or policy, and Purchaser knows of no fact that would cause
the FCC to materially delay the processing or grant of the FCC Order (including
approval of the FCC Application), including facts relating to Purchaser's market
share in any locality within the Station's primary service contour.
4.5 FINDERS AND BROKERS. No person has as a result of any agreement
entered into by Purchaser any valid claim against any of the parties hereto for
a brokerage commission, finder's fee or other like payment.
4.6 PURCHASER'S QUALIFICATION. Purchaser is in all material respects
qualified legally, financially and otherwise to be the licensee of the Station,
and has or shall have sufficient resources to pay in full all amounts due to
Seller under this Agreement when such amounts are due. In furtherance of the
foregoing, during the last 12 months, Purchaser has had no applications in front
of the FCC rejected, reconsidered or withdrawn.
4.7 LITIGATION. There are no suits, legal proceedings, or known
investigations of any nature pending or, to Purchaser's knowledge, threatened
against or affecting Purchaser that would affect Purchaser's ability to carry
out the transactions contemplated hereby, or would affect Purchaser's
qualifications to own and operate the Station under the Communications Act and
the rules, regulations and policies of the FCC.
4.8 MISCELLANEOUS MATTERS. Purchaser acknowledges that no other
representations or warranties have been made by Seller, and Purchaser has not
and will not rely on any statements made by Seller or its representatives or
agents other than those expressly set forth herein.
5. CERTAIN COVENANTS AND AGREEMENTS.
5.1 REASONABLE EFFORTS. Each of Seller and Purchaser shall take all
reasonable
action necessary and cooperate in good faith to consummate the transactions
contemplated by this Agreement and will use all necessary and reasonable
means at its disposal to obtain all necessary consents and approvals of other
persons and governmental authorities required to enable it to consummate the
transactions contemplated by this Agreement. Except as otherwise provided
herein, each of Seller and Purchaser acknowledges and agrees that it shall
pay all costs, fees and expenses incurred by it in obtaining such necessary
consents and approvals. Each party shall make all filings, applications,
statements and reports to all governmental agencies or entities which are
required to be made prior to the Closing Date by or on its behalf pursuant to
any statute, rule or regulation in connection with the transactions
contemplated by this Agreement, and copies of all such filings, applications,
statements and reports shall be provided to the other. If the FCC determines
that the transactions contemplated hereby or a portion thereof are
inconsistent or violative of FCC rules or regulations, the parties agree that
they will negotiate in good faith to amend, modify or restructure the
transactions contemplated hereby so as to be consistent with FCC rules and
regulations; provided, that the amount or timing of payment of the purchase
price shall not be amended or modified.
5.2 PUBLIC ANNOUNCEMENTS. Prior to the Closing Date, all notices to
third parties and other publicity relating to the transaction contemplated by
this Agreement shall be jointly planned and agreed to by Seller and Purchaser.
5.3 PARTIES ACTION PENDING THE CLOSING. During the period from the
date hereof to the Closing Date, unless the prior consent of the other party
is first obtained, neither party shall knowingly take any action which would
cause any representation and warranty made by such party hereunder to be
untrue as of the Closing Date.
5.4 TRANSITION CONSULTING FEE. In the event that, subsequent to the
Closing, the Purchaser elects to occupy the Seller's studio location, as set
forth in the Sublease (as described in Section 6.5), the Purchaser will pay to
Seller a consulting fee for the months in which the Sublease is in effect as
follows: (i) $4,000 per month during the months prior to April 1999, (ii) $9,000
per month for April 1999 through June 1999 and (iii) $49,000 per month for July
1999 and each subsequent month.
6. CONDITIONS TO PURCHASER'S CLOSING.
All obligations of Purchaser under this Agreement shall be subject to the
fulfillment at or prior to the Closing of the following conditions, it being
understood that Purchaser may, in its sole discretion, waive any or all of such
conditions in whole or in part:
6.1 REPRESENTATIONS, ETC. Seller shall have performed in all
material respects the covenants and agreements contained in this Agreement
that are to be performed by it as of the Closing, and the representations and
warranties of Seller contained in this Agreement shall be true and correct in
all material respects as of the Closing Date with the same effect as though
made at such time (except as contemplated or permitted by this Agreement).
6.2 CONSENTS. All consents and approvals from the FCC (other than
the Final Order) and under the HSR Act required to consummate the
transactions contemplated by this Agreement shall have been obtained without
material cost (except for regularly scheduled filing fees, and attorneys' and
other experts fees incurred in connection therewith) or other materially
adverse consequence to Purchaser and shall be in full force and effect. All
consents and approvals required from third parties under the Assumed
Liabilities shall have been obtained without material cost to Purchaser.
6.3 NO ADVERSE LITIGATION. No order or temporary, preliminary or
permanent injunction or restraining order shall have been entered and no action,
suit or other legal or administrative proceeding by any court or governmental
authority, agency or other person shall be pending or threatened on the Closing
Date which may have the effect of (i) making any of the transactions
contemplated hereby illegal, (ii) materially adversely affecting the value of
the Station Assets or (iii) making Purchaser liable for the payment of damages
to any person in respect of the Station or the Station's Assets.
6.4 STATION UPGRADE. The FCC shall have approved Seller's application
for a "one-step" upgrade of the Station's broadcast authorization to Class C2
status, and such approval shall have become final, that the normally applicable
time period for filing any protests, requests for stay, reconsideration by the
FCC, petitions for rehearing or appeal of such order shall have expired, and
that no protest, request for stay, reconsideration by the FCC, petition for
rehearing or appeal of such order shall be pending.
6.5 SUBLEASE. Seller and Purchaser shall have entered into the
Sublease in the form of Exhibit A attached hereto (the "Sublease").
6.6 UNWIND AGREEMENT. Seller and Purchaser shall have entered into
the Unwind Agreement in the form of Exhibit B attached hereto (the "Unwind
Agreement").
6.7 CLOSING DELIVERIES. Purchaser shall have received each of the
documents or items required to be delivered to it pursuant to Section 8.1
hereof.
7. CONDITIONS TO SELLER'S CLOSING.
All obligations of Seller under this Agreement shall be subject to the
fulfillment at or prior to the Closing of the following conditions, it being
understood that Seller may, in its sole discretion, waive any or all of such
conditions in whole or in part:
7.1 REPRESENTATIONS, ETC. Purchaser shall have performed in all
material respects the covenants and agreements contained in this Agreement
that are to be performed by Purchaser as of the Closing, and the
representations and warranties of Purchaser contained in this Agreement shall
be true and correct in all material respects as of the Closing Date with the
same effect as though made at such time (except as contemplated or permitted
by this Agreement).
7.2 NO ADVERSE LITIGATION. No order or temporary, preliminary or
permanent
injunction or restraining order shall have been entered and no action, suit
or other legal or administrative proceeding by any court or governmental
authority, agency or other person shall be pending or threatened on the
Closing Date which may have the effect of making any of the transactions
contemplated hereby illegal, or (ii) making Seller liable for the payment of
damages to any person in respect of the Station or the Station's Assets.
7.3 CONSENTS. All consents and approvals from the FCC (other than the
Final Order) and under the HSR Act required to consummate the transactions
contemplated by this Agreement shall have been obtained without material cost
(except for regularly scheduled filing fees, and attorneys' and other experts
fees incurred in connection therewith) or other materially adverse consequence
to Seller and shall be in full force and effect. All consents and approvals
required from third parties under the Assumed Liabilities shall have been
obtained without material cost to Seller.
7.4 SUBLEASE. Seller and Purchaser shall have entered into the
Sublease.
7.5 UNWIND AGREEMENT. Seller and Purchaser shall have entered into
the Unwind Agreement.
7.6 CLOSING DELIVERIES. Seller shall have received each of the
documents or items required to be delivered to it pursuant to Section 8.2.
8. DOCUMENTS TO BE DELIVERED AT CLOSING.
8.1 TO PURCHASER. At the Closing, there shall be delivered to
Purchaser:
(a) The warranty deeds, bills of sale, agreements of assignment and
similar instruments of transfer to the Station Assets contemplated by Section
2.3 hereof.
(b) A certificate, signed by an executive officer of Seller, as to the
fulfillment of the conditions set forth in Sections 6.1 through 6.3 hereof.
(c) All other items reasonably requested by Purchaser.
8.2 TO SELLER. At the Closing, there shall be delivered to Seller:
(a) The balance of the purchase price contemplated by Section 2.1
hereof, in the form of wire transfer or cashier's or certified check as Seller
may direct.
(b) A certificate, signed by an executive officer of Purchaser, as to
the fulfillment of the conditions set forth in Sections 7.1 through 7.3.
(c) An assumption agreement pursuant to which Purchaser shall assume
the Assumed Liabilities.
(d) All other items reasonably requested by Seller.
9. SURVIVAL.
All representations, warranties, covenants and agreements made by any party
to this Agreement or pursuant hereto shall be deemed to have been relied upon
by the parties hereto and shall survive the Closing for a period of one year
(except for the provisions of Section 5.4 which shall survive until such
provision expires in accordance with its terms), and notice of any claim of any
nature hereunder seeking indemnification or any other remedy must be given
within one year from the Closing Date, and if not, shall be deemed waived and
forfeited. The representations and warranties hereunder shall not be affected
or diminished by any investigation at any time by or on behalf of the party for
whose benefit such representations and warranties were made. No representation
or warranty contained herein shall be deemed to be made at any time after the
date of this Agreement or, if made in a certificate, the date of such
certificate.
10. INDEMNIFICATION OF PURCHASER.
Subject to the limitations set forth in Sections 9 and 12, Seller shall
indemnify and hold Purchaser harmless from, against, for and in respect of:
(a) any and all damages, losses, settlement payments, obligations,
liabilities, claims, actions or causes of action and encumbrances suffered,
sustained, incurred or required to be paid by Purchaser because of the breach of
any written representation, warranty, agreement or covenant of Seller contained
in this Agreement or any document, certificate or agreement executed in
connection with this Agreement;
(b) any and all liabilities, obligations, claims and demands arising
out of the ownership and operation of the Station at all times prior to the
Closing Date (other than the Assumed Liabilities); and
(c) all reasonable costs and expenses (including, without limitation,
attorneys' fees, interest and penalties) incurred by Purchaser in connection
with any action, suit, proceeding, demand, assessment or judgment incident to
any of the matters indemnified against in this Section 10.
11. INDEMNIFICATION OF SELLER.
Subject to the limitations set forth in Sections 9 and 12, Purchaser shall
indemnify and hold Seller harmless from, against, for and in respect of:
(a) any and all damages, losses, settlement payments, obligations,
liabilities, claims, actions or causes of action and encumbrances suffered,
sustained, incurred or required to be paid by Seller because of the breach of
any written representation, warranty, agreement or covenant of Purchaser
contained in this Agreement or any document, certificate or agreement executed
in connection with this Agreement;
(b) any and all liabilities, obligations, claims and demands arising
out of the ownership and operation of the Station on and after the Closing
Date, except to the extent the same arises from a breach of any written
representation, warranty, agreement or covenant of Seller contained in this
Agreement or any document, certificate or agreement executed in connection
with this Agreement;
(c) any of the Assumed Liabilities; and
(d) all reasonable costs and expenses (including, without limitation,
attorneys' fees, interest and penalties) incurred by Seller in connection with
any action, suit, proceeding, demand, assessment or judgment incident to any of
the matters indemnified against in this Section 11.
12. GENERAL RULES REGARDING INDEMNIFICATION.
The obligations and liabilities of each indemnifying party hereunder with
respect to claims resulting from the assertion of liability by the other party
or indemnified third parties shall be subject to the following terms and
conditions:
(a) The indemnified party shall give prompt written notice (which in
no event shall exceed 20 days from the date on which the indemnified party
first became aware of such claim or assertion) to the indemnifying party of
any claim which might give rise to a claim by the indemnified party against
the indemnifying party based on the indemnity agreements contained in Section
10 or 11 hereof, stating the nature and basis of said claims and the amounts
thereof, to the extent known;
(b) If any action, suit or proceeding is brought against the
indemnified party with respect to which the indemnifying party may have
liability under the indemnity agreements contained in Section 10 or 11
hereof, the action, suit or proceeding shall, upon the written acknowledgment
by the indemnifying party that it is obligated to indemnify under such
indemnity agreement, be defended (including all proceedings on appeal or for
review which counsel for the indemnified party shall deem appropriate) by the
indemnifying party. The indemnified party shall have the right to employ its
own counsel in any such case, but the fees and expenses of such counsel shall
be at the indemnified party's own expense unless (A) the employment of such
counsel and the payment of such fees and expenses both shall have been
specifically authorized in writing by the indemnifying party in connection
with the defense of such action, suit or proceeding, or (B) counsel to such
indemnified party shall have reasonably concluded and specifically notified
the indemnifying party that there may be specific defenses available to it
which are different from those available to the indemnifying party, in any
of which events the indemnifying party, to the extent made necessary by such
defenses, shall not have the right to direct the defense of such action, suit
or proceeding on behalf of the indemnified party. In the latter such case
only that portion of such fees and expenses of the indemnified party's
separate counsel reasonably related to matters covered by the indemnity
agreements contained in Section 10 or 11 hereof shall be borne by the
indemnifying party. The indemnified party shall be kept fully informed of
such action, suit or proceeding at all
stages thereof whether or not it is represented by separate counsel.
(c) The indemnified party shall make available to the indemnifying
party and its attorneys and accountants all books and records of the
indemnified party relating to such proceedings or litigation and the parties
hereto agree to render to each other such assistance as they may reasonably
require of each other in order to ensure the proper and adequate defense of
any such action, suit or proceeding.
(d) The indemnified party shall not make any settlement of any claims
without the written consent of the indemnifying party, which consent shall not
be unreasonably withheld or delayed.
(e) If any claims are made by an indemnified party for which an
indemnifying party would be liable, and it appears likely that such claims might
also be covered by the indemnified party's insurance policies, the indemnified
party shall make a timely claim under such policies and to the extent that such
party obtains any recovery from such insurance, such recovery shall be offset
against any sums due from an indemnifying party (or shall be repaid to the
indemnifying party by the indemnified party to the extent that an indemnifying
party has already paid any such amounts). In addition, any claim for indemnity
hereunder shall reduced by any tax-related benefit reasonably expected by
Purchaser to be received or actually received by Purchaser.
(f) The indemnified party shall not make any claim unless and until it
has incurred indemnified losses, damages and expenses in the cumulative
aggregate amount of $25,000, and then only in respect of the excess over such
$25,000 minimum. All claims for indemnification shall not, in any event, exceed
$3.6 million.
(g) Purchaser and Seller acknowledge and agree that the foregoing
indemnification provisions in Sections 10, 11 and 12 hereof shall be the sole
and exclusive remedies for breaches or defaults of any representation, warranty,
covenant or agreement contained herein or in any other document or instrument
delivered in connection herewith.
13. TERMINATION. This Agreement may be terminated by the mutual consent of
Purchaser and Seller, or by either Purchaser or Seller, if the terminating party
is not then in material breach of its obligations hereunder, upon written notice
to the other upon the occurrence of any of the following:
(a) By the terminating party, if the other party is in material breach
of its obligations hereunder and such breach has not been cured by the other
party within 30 days of written notice of such breach;
(b) If the FCC designates the FCC Application contemplated by Section
2.2(b) hereof for hearing at any time; or
(c) If the Closing has not occurred on or before December 31, 1999.
In the event that this Agreement is terminated as a result of either party's
material breach of this Agreement, the non-breaching party will incur
substantial damages that are difficult to quantify. In such event, the sum of
$4,000,000 (the "Break-up Fee") is deemed by the parties to be an amount which
is a fair and reasonable estimate of the damage the non-breaching party may
incur. Accordingly, in the event of such termination, the breaching party will
pay the Break-up Fee to the non-breaching party within 10 days of such
termination, with interest thereon (if not paid during such 10 day period) at an
annual rate of 15%. In the event that the non-breaching party's actual damages
exceed the amount of the Break-up Fee, the non-breaching party may seek, and
shall be entitled to recover from the breaching party, any such excess damages.
14. RISK OF LOSS.
If any material portion of the Station Assets shall suffer any "material
physical damage or destruction" (as defined below) prior to the Closing Date,
the parties shall promptly notify one another in writing of such physical damage
or destruction, and the party at fault (or if no fault, Seller) shall promptly
take all necessary steps to restore, repair or replace such assets at its sole
expense, and shall advise the other in writing of the estimated cost to complete
such restoration, repair or replacement and all amounts actually paid as of the
date of the estimate. If such restoration, repair or replacement is not
accomplished prior to the Closing Date, and only if it is Seller's obligation to
restore, repair or replace (i.e., Purchaser is not at fault), Buyer shall
receive all insurance proceeds paid or payable to Seller in respect of such
damage or destruction, close this Agreement and thereafter complete such
restoration, repair or replacement at its sole expense; provided, however,
Seller shall have no further liabilities with respect to such damage or
destruction after payment to Purchaser of such insurance proceeds. For purposes
hereof, "material physical damage or destruction" shall mean any damage or
destruction to a material portion of the Station Assets, which damage or
destruction exceeds $250,000, in the aggregate and which is not covered by
insurance (other than a reasonable deductible).
15. MISCELLANEOUS PROVISIONS.
15.1 EXPENSES. Except as otherwise expressly provided herein, each
party shall pay the fees and expenses incurred by it in connection with the
transactions contemplated by this Agreement. If any action is brought for
breach of this Agreement or to enforce any provision of this Agreement, the
prevailing party shall be entitled to recover court costs, arbitration
expenses and reasonable attorneys' fees.
15.2 PRORATIONS. All items of income and expense arising from the
operation of the Station with respect to the Station Assets and the Assumed
Liabilities on or before the close of business on the Closing Date shall be for
the account of Seller and thereafter shall be for the account of Purchaser.
Proration of the items described below between Seller and Purchaser shall be
effective as of 11:59 p.m., local time, on such date and shall occur as follows
with respect to those rights, liabilities and obligations of Seller transferred
to and assumed by Purchaser hereunder:
(a) Liability for state and local taxes assessed on the Station Assets
payable with respect to the tax year in which the Closing Date falls shall be
prorated as between Seller and Purchaser on the basis of the number of days of
the tax year elapsed to and including such date, appropriately adjusted with
respect to improvements to the Station Assets effected by Purchaser after the
Closing Date.
(b) Prepaid items and accruals such as water, electricity, telephone,
other utility and service charges, lease expenses, license fees (if any) and
payments under any contracts to be assumed by Purchaser shall be prorated
between Seller and Purchaser on the basis of the period of time to which such
liabilities, prepaid items and accruals apply.
All prorations shall be made and paid insofar as feasible on the Closing
Date with a final settlement to be made on the Closing Date. Seller and
Purchaser agree to assume, pay and perform all costs, liabilities and expenses
allocated to each of them pursuant to this Section 15.2.
15.3 AMENDMENT. This Agreement may be amended at any time but only
by an instrument in writing signed by the parties hereto.
15.4 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given if mailed by certified mail, return receipt
requested, or by nationally recognized "next-day" delivery service, to the
parties at the addresses set forth below (or at such other address for a party
as shall be specified by like notice), or sent by facsimile to the number set
forth below (or such other number for a party as shall be specified by proper
notice hereunder):
If to Purchaser:
▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to :
▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq .
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
15.5 ASSIGNMENT. This Agreement may not be assigned by either party
without the prior consent of the other party; provided, however, that Purchaser
may assign its rights to one or more of its subsidiaries so long as Heftel
Broadcasting Corporation remains liable for all obligations of the Purchaser
hereunder. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, heirs and permitted assigns.
15.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15.7 HEADINGS. The headings of the Sections of this Agreement are
inserted for convenience only and shall not constitute a part hereof.
15.8 ENTIRE AGREEMENT. This Agreement and the documents referred to
herein contain the entire understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions, promises,
warranties, conveyances or undertakings other than those expressly set forth
herein. This Agreement supersedes any prior agreements and understandings
between the parties with respect to the subject matter.
15.9 WAIVER. No attempted waiver of compliance with any provision or
condition hereof, or consent pursuant to this Agreement, will be effective
unless evidenced by an instrument in writing by the party against whom the
enforcement of any such waiver or consent is sought.
15.10 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Arizona.
15.11 CERTAIN DEFINITIONS. As used in this Agreement, "affiliates" of a
party shall mean persons or entities that directly, or indirectly through one or
more intermediaries, control or are controlled by, or are under common control
with, such party.
15.12 INTENDED BENEFICIARIES. The rights and obligations contained in
this Agreement are hereby declared by the parties hereto to have been
provided expressly for the exclusive benefit of such entities as set forth
herein and shall not benefit, and do not benefit, any unrelated third parties.
15.13 MUTUAL CONTRIBUTION. The parties to this Agreement and their
counsel have mutually contributed to its drafting. Consequently, no
provision of this Agreement shall be construed against any party on the
ground that such party drafted the provision or caused it to be drafted or
the provision contains a covenant of such party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
NEW CENTURY ARIZONA LICENSE
PARTNERSHIP
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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General Partner
NEW CENTURY ARIZONA LLC
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Managing Member
HEFTEL BROADCASTING CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Senior Vice President