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EXHIBIT 2.56
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
THE BROADCAST GROUP, INC.,
SELLER
AND
CHANCELLOR MEDIA/SHAMROCK BROADCASTING, INC.,
BUYER
DATED AS OF SEPTEMBER 15, 1998
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TABLE OF CONTENTS
PAGE
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ARTICLE I. ASSETS TO BE CONVEYED..................................................................................1
1.1. Licenses and Authorizations............................................................1
1.2. Station Equipment......................................................................2
1.3. Contracts..............................................................................2
1.4. Real Property..........................................................................3
1.5. Call Signs, Promotional Materials and Intangibles......................................3
1.6. Records................................................................................3
1.7. Accounts Receivable....................................................................3
1.8. Excluded Assets........................................................................4
1.9. Effect of Time Brokerage Agreement on Certain Contracts................................4
ARTICLE II. ASSUMPTION OF LIABILITIES.............................................................................5
ARTICLE III. TOTAL CONSIDERATION AND APPRAISAL....................................................................5
3.1. Total Consideration....................................................................5
3.2. Appraisal..............................................................................6
ARTICLE IV. PRORATIONS AND ADJUSTMENTS............................................................................6
ARTICLE V. NONCOMPETITION AGREEMENT...............................................................................7
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF SELLER..............................................................7
6.1. Organization...........................................................................7
6.2. Authorization..........................................................................7
6.3. No Breach..............................................................................8
6.4. Station Licenses.......................................................................8
6.5. Station Applications...................................................................9
6.6. Title to Assets........................................................................9
6.7. Condition of Equipment.................................................................9
6.8. Condition of Real Property.............................................................9
6.9. Assigned Contracts....................................................................11
6.10. Employees............................................................................11
6.11. Employee Benefit Plans...............................................................12
6.12. Litigation...........................................................................13
6.13. Payment of Taxes.....................................................................13
6.14. Compliance With Laws.................................................................13
6.15. Insolvency Proceedings...............................................................14
6.16. Citizenship..........................................................................14
6.17. Patents, Trademarks, Copyrights......................................................15
6.18. Financial Statements.................................................................15
6.19. Sufficiency of Assets................................................................16
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6.20. No Misleading Statements.............................................................16
6.21. Broadcast Cash Flow..................................................................16
6.22. Limitation of Buyer's Representations and Warranties.................................16
6.23. Definition of Seller's Knowledge.....................................................16
ARTICLE VII. REPRESENTATIONS AND WARRANTIES OF BUYER.............................................................16
7.1. Organization..........................................................................16
7.2. Authorization.........................................................................16
7.3. No Breach.............................................................................16
7.4. Litigation............................................................................17
7.5. No Misleading Statements..............................................................17
7.6. Qualification as Broadcast Licensee...................................................17
7.7. Limitation of Seller's Representations and Warranties.................................17
7.8. Buyer's In-Market Revenue.............................................................17
ARTICLE VIII. ENVIRONMENTAL MATTERS..............................................................................17
8.1. Definitions...........................................................................17
8.2. Environmental Compliance..............................................................18
ARTICLE IX. PRE-CLOSING OBLIGATIONS..............................................................................19
9.1. Application for Commission Consent....................................................19
9.2. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act.................................................................20
9.3. Other Governmental Consents...........................................................20
9.4. Financial Information.................................................................20
9.5. Consents..............................................................................20
9.6. Surveys...............................................................................20
9.7. Confidentiality.......................................................................21
9.8. Access................................................................................21
9.9. Employee Matters......................................................................21
9.10. Operations Prior to Closing..........................................................22
9.11. Adverse Developments.................................................................23
9.12. Administrative Violations............................................................23
9.13. Bulk Sales Act.......................................................................24
9.14. Asbestos-Containing Material.........................................................24
9.15. Control of Stations..................................................................24
ARTICLE X. CONDITIONS PRECEDENT..................................................................................24
10.1. Mutual Conditions....................................................................24
10.1.1. Governmental Consents......................................................24
10.1.2. Absence of Litigation......................................................24
10.2. Conditions to Buyer's Obligation.....................................................24
10.2.1. Representations and Warranties.............................................25
10.2.2. Compliance with Conditions.................................................25
10.2.3. Title Commitment...........................................................25
10.2.4. Validity of Station Licenses...............................................25
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10.2.5. Closing Documents..........................................................25
10.2.6. Third Party Consents.......................................................25
10.2.7. Estoppel Certificates......................................................25
10.2.8. Settlement of Claims.......................................................26
10.2.9. Finality...................................................................26
10.3. Conditions to Seller's Obligation....................................................26
10.3.1. Representations and Warranties.............................................26
10.3.2. Compliance with Conditions.................................................26
10.3.3. Payment....................................................................26
10.3.4. Closing Documents..........................................................26
ARTICLE XI. CLOSING..............................................................................................26
11.1. Closing Date.........................................................................26
11.2. Performance at Closing...............................................................27
11.2.1. By Seller..................................................................27
11.2.2. By Buyer...................................................................28
11.2.3. Other Documents and Acts...................................................28
ARTICLE XII. POST-CLOSING OBLIGATIONS............................................................................28
12.1. Indemnification......................................................................28
12.1.1.Buyer's Right to Indemnification............................................28
12.1.2. Seller's Right to Indemnification..........................................29
12.1.3. Conduct of Proceedings.....................................................29
12.1.4. Indemnification Not Sole Remedy............................................30
12.1.5. Right of Offset............................................................30
12.1.6. Conditions of Indemnification..............................................30
12.2. Post-Closing Access..................................................................30
ARTICLE XIII. DEFAULT AND REMEDIES...............................................................................30
13.1. Termination by Seller................................................................30
13.2. Termination by Buyer.................................................................31
13.3. Breach and Opportunity to Cure.......................................................31
13.4. Seller's Remedies....................................................................31
13.5. Buyer's Remedies.....................................................................32
13.6. Designation for Hearing..............................................................32
13.7. Legal Actions........................................................................32
ARTICLE XIV. DAMAGE..............................................................................................33
14.1. Risk of Loss.........................................................................33
14.2. Failure of Broadcast Transmission....................................................33
14.3. Resolution of Disagreements..........................................................34
ARTICLE XV. GENERAL PROVISIONS...................................................................................34
15.1. Brokerage............................................................................34
15.2. Expenses.............................................................................34
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15.3. Notices..............................................................................34
15.4. Attorneys' Fees......................................................................35
15.5. Survival of Representations, Warranties and Indemnification Rights...................35
15.6. Exclusive Dealings...................................................................36
15.7. Waiver...............................................................................36
15.8. Assignment...........................................................................36
15.9. Entire Agreement.....................................................................36
15.10. Counterparts........................................................................36
15.11. Construction........................................................................36
15.12. Schedules and Exhibits..............................................................37
15.13. Severability........................................................................37
15.14. Choice of Law.......................................................................37
15.15. Counsel.............................................................................37
15.16. Public Statements...................................................................37
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TABLE OF SCHEDULES AND EXHIBITS
Schedule 1.1 Licenses, Authorizations and Applications
Schedule 1.2 Station Equipment
Schedule 1.3 Contracts
Schedule 1.4 Real Property
Schedule 1.5 Call Signs, Promotional Materials and Intangibles
Schedule 1.6 Contractual Limits on Assignment of Employee Records
Schedule 1.8 Excluded Assets
Schedule 6.1 Seller's Business and Assets
Schedule 6.6 Exceptions to Title
Schedule 6.8 Liens on Real Property
Schedule 6.10 Employees
Schedule 6.11 Employee Plans
Schedule 6.12 Litigation
Schedule 6.18 Financial Statements
Exhibit A Seller Noncompetition Agreement
Exhibit B ▇▇▇▇▇▇ and ▇▇▇▇▇ Noncompetition Agreement
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made and
entered into on September 15, 1998 (the "Contract Date"), by and between THE
BROADCAST GROUP, INC., a Michigan corporation ("Seller"), THE ▇▇▇▇▇▇ CO., a
Michigan corporation ("Seller's Guarantor"), CHANCELLOR MEDIA/SHAMROCK
BROADCASTING, INC., a Delaware corporation ("Buyer"), and CHANCELLOR MEDIA
CORPORATION OF LOS ANGELES, INC., a Delaware corporation ("Buyer's Guarantor").
BACKGROUND:
Seller is the licensee, owner and operator of Broadcast
Stations KKFR-FM, 92.3 MHz, Glendale, Arizona (the "FM Station") and KFYI (AM),
910 kHz, Phoenix, Arizona (the "AM Station," together with the FM Station, the
"Stations"), pursuant to certain authorizations issued by the Federal
Communications Commission (the "Commission" or "FCC"), and owns certain assets
used or held for use solely in connection with the operation of the Stations.
Seller desires to sell and assign and Buyer desires to purchase and acquire
substantially all of the property and assets used or held for use in the
operation of the Stations upon the terms set forth in this Agreement (the
"Transaction"). Seller's Guarantor is a party to this Agreement in order to
provide a guaranty for, and to be jointly and severally liable with Seller for
any breach of, Seller's obligations under this Agreement. Buyer's Guarantor is a
party to this Agreement in order to provide a guaranty for, and to be jointly
and severally liable with Buyer for any breach of, Buyer's obligations under
this Agreement. Buyer and Seller intend to enter into, simultaneously with the
execution hereof, an agreement providing for the sale of substantially all of
the broadcast time of the Stations to Buyer (the "Time Brokerage Agreement"),
subject to and in compliance with the rules and policies of the Commission. The
parties acknowledge that the licenses issued by the Commission for the operation
of the Stations may not be assigned without the prior written consent of the
Commission. Accordingly, in consideration of the foregoing and of the mutual
promises, covenants, and conditions set forth below, the parties agree as
follows:
ARTICLE I.
ASSETS TO BE CONVEYED
On the Closing Date (as defined in Section 11.1), subject to
and in reliance upon the covenants, representations, warranties and agreements
set forth herein, and subject to the terms and conditions contained herein, and
subject to the Time Brokerage Agreement if then in effect, Seller shall sell,
assign, transfer and deliver to Buyer and Buyer shall purchase from Seller, all
of the assets owned or leased by Seller that are used or held for use in the
operation of the Stations, other than Excluded Assets (as defined below),
including without limitation, the following (collectively, the "Assets"):
1.1. Licenses and Authorizations. All licenses, permits,
permissions and other authorizations issued to Seller for the operation of the
Stations by the Commission or
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any other governmental agencies, including, but not limited to, those listed on
Schedule 1.1 and the right to use the Stations' call letters (the "Station
Licenses"), and all applications for modification, extension or renewal thereof,
and any pending applications for any new licenses, permits, permissions or
authorizations pending on the Closing Date, including, but not limited to, those
listed on Schedule 1.1 (the "Station Applications").
1.2. Station Equipment. All the fixed and tangible personal
property owned by or leased to Seller that is used or held for use in the
operation of the Stations including, but not limited to, the transmitters,
towers, ground system and studio equipment listed on Schedule 1.2 together with
any replacements, improvements, or additions thereto made between the Contract
Date and the Closing Date (the "Station Equipment").
1.3. Contracts. Subject to Section 1.9, all rights of Seller
or others for the benefit of the Stations under
(a) all agreements, contracts, or leases described on
Schedule 1.3(a);
(b) such other contracts, agreements or leases
entered into (i) in the case of contracts other than employment contracts, with
the written consent of Buyer, which consent shall not be unreasonably withheld
and shall be deemed granted if Buyer does not notify Seller in writing of
Buyer's grounds for withholding consent within five (5) business days of Buyer's
receipt of Seller's written request for consent; (ii) in the case of employment
contracts, with the consent of Buyer, which shall be requested by Seller during
normal working hours from the employee of Buyer designated and authorized by
Buyer to review such requests and grant such consent (the "Designated
Employee"), or a person with similar authority substituting for the Designated
Employee in the Designated Employee's absence, which consent shall not be
unreasonably withheld and shall be deemed granted if the Designated Employee or
substitute cannot be reached through all reasonable efforts by Seller during
normal working hours within eight (8) hours, or if the Designated Employee does
not notify Seller of the grounds for withholding consent within eight (8) hours
after receiving such request; or (ii) in the ordinary course of business,
between the Contract Date and the earlier of the TBA Commencement Date or the
Closing Date, that do not, in the aggregate, impose obligations in excess of
Twenty-Five Thousand Dollars ($25,000) on Buyer (the contracts, agreements and
leases described in clauses (a) and (b) are collectively referred to as the
"Operating Contracts");
(c) all contracts for the sale of time on the
Stations for cash (i) at rates substantially in accordance with the Stations'
past practices with a remaining term at Closing of twelve (12) months or less,
(ii) set forth on Schedule 1.3(c), or (iii) entered into with the written
consent of Buyer, which consent shall not be unreasonably withheld and shall be
deemed granted if Buyer does not notify Seller in writing of Buyer's grounds for
withholding consent within five (5) business days of Buyer's receipt of Seller's
written request for consent ("Sales Agreements");
(d) contracts for the sale of time on the Stations in
exchange for merchandise or services used or useful for the benefit of the
Stations to the extent that such contracts are listed on Schedule 1.3(d) or (i)
were entered into in the ordinary course of business,
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(ii) are preemptible for cash time sales, and (iii) obligate Buyer to provide
advertising time only on a "run of schedule" basis ("Trade Agreements"); and
(e) contracts for the sale of time on the Stations in
exchange for programming set forth on Schedule 1.3(e) or entered into after the
Contract Date in the ordinary course of business or with the written consent of
Buyer, which consent shall not be unreasonably withheld and shall be deemed
granted if Buyer does not notify Seller in writing of Buyer's grounds for
withholding consent within five (5) business days of Buyer's receipt of Seller's
written request for consent ("Barter Agreements").
1.4. Real Property. All right, title and interest in the real
property used or held for use or necessary in the operation of the Stations and
owned, leased, or licensed by Seller, as described in Schedule 1.4, or acquired
for the benefit of the Stations by Seller with the written consent of Buyer
between the Contract Date and Closing Date (the "Real Property").
1.5. Call Signs, Promotional Materials and Intangibles. All of
Seller's rights in the Stations' call signs, copyrights, patents, trademarks,
trade names, slogans, logos, service marks, computer software, domain name
registrations, magnetic media, data processing files, systems and programs,
business lists, trade secrets, sales and operating plans, all goodwill of the
Stations and other similar intangible property rights used or held for use in
the operation of the Stations, including but not limited to the intangible
property identified on Schedule 1.5 (the "Intangible Property").
1.6. Records. All of Seller's records, including but not
limited to all books of account, customer lists, supplier lists, transferable
computer programs and software (subject to any restrictions on transfer or sale
of commercial computer software contained in licenses for such software),
employee personnel files (subject to any legal limitations on transfer or
disclosure thereof or to any contractual limitations on transfer or disclosure
thereof set forth in Schedule 1.6), local public inspection file materials,
engineering data, logs, programming records, consultants' reports, ratings
reports, budgets, marketing and demographic data, financial reports and
projections, lists of advertisers, promotional materials, and sales, operating
and business plans, relating to or used in the operation of the Stations or
necessary or desirable to show compliance with any law or regulation applicable
to the Stations or the operation of the Stations and not pertaining solely to
Seller's internal financial or corporate affairs or its other interests (the
"Station Records").
1.7. Accounts Receivable. Unless the parties have entered into
the Time Brokerage Agreement and such accounts receivable have been assigned to
Buyer for purpose of collection pursuant thereto, at the Closing, Seller shall
assign to Buyer, for purpose of collection only, all of Seller's accounts
receivable arising from the operation of the Stations (the "Receivables"). For a
period of one hundred twenty days (120) after the Closing Date, Buyer will
collect the Receivables for Seller's benefit. Buyer will not adjust, compromise
or settle any dispute concerning the Receivables without prior written consent
of Seller. Within five (5) business days of the end of each calendar month after
the Closing Date, Buyer shall pay to Seller all amounts collected on account of
the Receivables during the prior calendar month. Within one
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hundred thirty (130) days of the Closing Date, Buyer will deliver to Seller the
balance of amounts collected on account of the Receivables, and a complete
certified statement of all collections and payments made with respect to the
Receivables. Buyer shall then reassign to Seller the Receivables that remain
uncollected. For the purposes hereof, all sums received by Buyer from any person
or entity that is the payee on any of Seller's accounts receivable shall be
deemed to be payments with respect to the accounts receivable from such person
or entity, until all amounts due Seller from such person or entity have been
collected.
1.8. Excluded Assets. It is understood and agreed that the
following assets shall not be among the Assets purchased pursuant to this
Agreement:
(a) Seller's cash on hand as of the Closing and any
of Seller's interests in its bank accounts and all of Seller's other cash, cash
equivalents, security funds, securities, investments, deposits, prepayments
(including prepaid taxes and insurance), tax refunds and overpayments;
(b) Any insurance policies and proceeds thereof,
promissory notes, amounts due from employees, bonds, letters of credit,
certificates of deposits or other similar items and cash surrender value in
regard thereto;
(c) Any pension, profit-sharing, or employee benefit
plans, including all of Seller's interest in any Employee Plan (as defined in
Section 6.11), and any collective bargaining agreements;
(d) Any accounts receivable outstanding on the
Closing Date subject to Section 1.7 hereof;
(e) Any agreements not included among the Assigned
Contracts or the TBA-Assigned Contracts, as defined in Section 1.9;
(f) All tax returns and supporting materials, all
financial statements and supporting materials, all books and records that Seller
is required by law to retain, all corporate minutes and records, and all records
of Seller relating to the sale of the Assets; and
(g) Any interest in and to any refunds of federal,
state, or local franchise, income or other taxes for periods prior to the
Closing Date.
(h) Any items listed on Schedule 1.8.
1.9. Effect of Time Brokerage Agreement on Certain Contracts
In the event that the parties execute the Time Brokerage Agreement, pursuant
thereto and as of the Commencement Date thereof (as defined in the Time
Brokerage Agreement, the "TBA Commencement Date"), Seller will assign to Buyer
and Buyer will assume (i) the Operating Contracts on Schedule 1.3(a) that are
marked to show that they will be assigned pursuant to the Time Brokerage
Agreement, (ii) the Operating Contracts to be assumed by Buyer pursuant to
Section 1.3(b); (iii) the Sales Agreements; (iv) the Trade Agreements; and (v)
the Barter
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Agreements (collectively, the "TBA-Assigned Contracts"). The Operating
Contracts, Sales Agreements, Trade Agreements, and Barter Agreements, exclusive
of the TBA-Assigned Contracts, if any, are referred to herein as the "Assigned
Contracts."
ARTICLE II.
ASSUMPTION OF LIABILITIES
Except to the extent assumed prior to the closing of the
transaction contemplated by this Agreement (the "Closing") as provided in the
Time Brokerage Agreement, at the Closing, Buyer shall assume all liabilities,
obligations, commitments, and responsibilities of Seller accruing or arising
from and relating exclusively to the ownership of the Assets or operation of the
Stations from and after the Closing Date under any of the Assigned Contracts
(collectively, the "Assumed Liabilities"). Buyer shall not assume or undertake
to pay, satisfy or discharge any of Seller's liabilities, obligations,
commitments or responsibilities other than the Assumed Liabilities. If, in the
case of any Assigned Contract for which consent to assignment of a third party
is required as indicated on Schedule 1.3(a), and (i) such consent has not been
obtained as of the Closing Date, and, (ii) if such Assigned Contract is
designated as required on Schedule 1.3(a) (a "Required Contract") (such consent
to assign with respect to a Required Contract, a "Required Consent"), Buyer
waives the condition precedent to its obligations set forth at Section 10.2.7 in
its sole discretion, then, provided Buyer uses its commercially reasonable best
efforts to both obtain the consent or Required Consent, as applicable, and to
receive the benefits of such Assigned Contract, which Buyer hereby covenants to
do, Seller shall use its commercially reasonable best efforts to cause the other
party to such Assigned Contract to provide Buyer the benefits under and for the
term of such Assigned Contract until such consent or Required Consent, as
applicable, is obtained, at which time such Assigned Contract shall be assigned
to Buyer; provided, however, that Seller shall not be relieved of, and Buyer
shall not assume, any obligation or liability of Seller under such Assigned
Contract prior to such assignment to Buyer, and that Buyer shall reimburse
Seller for amounts paid by Seller pursuant to the terms of such Assigned
Contract to the extent Buyer receives or could, but for Buyer's action or
inaction, receive, benefits thereunder; provided further, that, in the event of
a default by the other party to a Required Contract not assigned to Buyer prior
to Closing, for which benefits are intended to be provided to Buyer after
Closing pursuant to the terms of this Article II, Buyer shall reimburse Seller
for its reasonable expenses incurred in obtaining performance from such
defaulting party, pursuing any remedies available in respect of such party's
default, and obtaining substitute performance, subject to Buyer's prior approval
of any such actions and resulting expenses, which, in the case of approval of
such actions by Seller, approval of such resulting expenses shall not be
unreasonably withheld.
ARTICLE III.
TOTAL CONSIDERATION AND APPRAISAL
3.1. Total Consideration. The purchase price for the Assets
being purchased shall be Eighty-Nine Million Eight Hundred Fifty Thousand
Dollars ($89,850,000.00) (the "Purchase Price"), and the consideration for the
Noncompetition Agreements referenced in Article V below shall be Fifty Thousand
Dollars for the Noncompetition Agreement between
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Buyer and both of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇") and
One Hundred Thousand Dollars for the Noncompetition Agreement between Buyer and
Seller (such consideration, collectively, the "Noncompetition Consideration").
The Purchase Price and the Noncompetition Consideration are collectively
referred to herein as the "Total Consideration." At Closing, Buyer will pay, by
wire transfer of federal funds (pursuant to wire instructions that Seller shall
deliver to Buyer prior to Closing), to Seller, the Purchase Price plus or minus
any adjustments, as set forth in Article IV hereof or elsewhere in this
Agreement, and to Seller and to ▇▇▇▇▇▇ and ▇▇▇▇▇, as appropriate, the
Noncompetition Consideration.
3.2. Appraisal. After the Closing, Buyer shall, at its sole
cost and expense, cause the aggregate fair market value of the Assets to be
appraised by an appraisal firm of its choosing. Buyer shall, within one hundred
twenty (120) days after the Closing, deliver a draft of IRS Form 8594 reflecting
the information required by Section 1060 of the Internal Revenue Code (the
"Code") and the regulations thereunder (and excluding any information required
to be excluded by Treas. Reg. ss. 1.1060-1T(b)(4)) to Seller for review and
approval, which approval shall not be unreasonably withheld. In the event such
consent is not withheld, Buyer and Seller shall each file with their respective
federal income tax returns for the tax year in which the Closing occurs, IRS
Forms 8594 containing the information agreed upon under the procedure outlined
above. Except as otherwise required by law or any taxing authority, each of
Buyer and Seller shall report, or cause to be reported, the transactions
contemplated hereby for income tax purposes (including but not limited to, on
their respective income tax returns, before any governmental agency charged with
the collection of income tax or in any judicial proceeding concerning the income
tax consequences of the Buyer's purchase or Seller's sale of the Assets
hereunder) in a manner consistent with the information agreed upon pursuant to
this section and contained in the relevant IRS Form 8594. Notwithstanding any
other provision of this Agreement, the provisions of this Section 3.1(b) shall
survive the Closing without limitation.
ARTICLE IV.
PRORATIONS AND ADJUSTMENTS
Except as otherwise provided in the Time Brokerage Agreement,
the operation of the Stations and the income and normal operating expenses,
including without limitation assumed liabilities and prepaid expenses,
attributable thereto through 11:59 p.m. of the day prior to the Closing Date
(the "Adjustment Date") shall be for the account of Seller and thereafter for
the account of Buyer. Expenses for goods or services received both before and
after the Adjustment Date, taxes and assessments, power and utilities charges,
and rents and similar prepaid and deferred items shall be prorated between
Seller and Buyer as of the Adjustment Date (the "Closing Date Adjustments"). All
installments of special assessments and similar charges or liens imposed against
the Real Property and Station Equipment that are due and payable on or before
the Adjustment Date shall be paid by the Seller, and installments payable with
respect to such special assessments, charges or liens after the Adjustment Date
shall be paid by Buyer, and such charges shall be prorated as required
hereunder. Three (3) days prior to the Closing Date Seller shall estimate all
apportionments pursuant to this Article IV and shall deliver a statement of its
estimates to Buyer (which statement shall set forth in reasonable detail the
basis for those estimates). At the Closing, Buyer shall pay to Seller, or Seller
shall pay to Buyer, as the case
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may be, the net amount due as a result of the estimated apportionments
(excluding any item that is in dispute). Within sixty (60) days after the
Closing (the "Payment Date"), Buyer shall deliver to Seller a statement of any
adjustments to Seller's estimate of the apportionments, and Buyer shall pay to
Seller, or Seller shall pay to Buyer, as the case may be, any amount due as a
result of the adjustment (or, if there is any dispute, the undisputed amount).
If Seller disputes Buyer's determinations, or if at any time after delivery of
Buyer's statement of determinations, either party determines that any item
included in the apportionments is inaccurate, or that an additional item should
be included in the apportionments, the parties shall confer with regard to the
matter and an appropriate adjustment and payment shall be made as agreed upon by
the parties (or, if they are unable to resolve the matter, they shall select a
firm of independent certified public accountants to resolve the matter, whose
decision on the matter shall be binding and whose fees and expenses shall be
borne equally by the parties). All amounts due pursuant to this subsection that
are not paid within thirty (30) days of the date they are due shall bear
interest until paid at a rate per annum equal to generally prevailing prime
interest rate (as reported by The Wall Street Journal) plus five percent (5%).
ARTICLE V.
NONCOMPETITION AGREEMENT
At Closing, Seller and Buyer shall enter into a Noncompetition
Agreement in the form set forth in Exhibit A, and ▇▇▇▇▇▇ and ▇▇▇▇▇ and Buyer
shall enter into a Noncompetition Agreement in the form set forth in Exhibit B
(such Noncompetition Agreements, collectively, the "Covenants").
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the following representations and warranties, all
of which have been relied upon by Buyer in entering into this Agreement and,
except as otherwise specifically provided, all of which shall be true and
correct at Closing.
6.1. Organization. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Michigan,
is duly qualified to do business in, and is in good standing under, the laws of
the State of Arizona and has full power and authority to own, lease and operate
the Assets and to conduct the business and operations of the Stations as
currently conducted and proposed to be conducted by Seller and to enter into and
perform this Agreement. The address of Seller's chief executive offices, all of
Seller's additional places of business, and the locations of all material
tangible personal property included in the Assets are listed in Schedule 6.1.
Except as set forth in Schedule 6.1, during the past five (5) years, Seller has
not, nor to the best of Seller's knowledge, has any prior owner of the Stations
been known by or used any corporate, partnership, fictitious or other name in
the conduct of the Stations' business or in connection with the use or operation
of the Assets.
6.2. Authorization. The execution and delivery of this
Agreement by Seller has been duly authorized by all necessary corporate action
on its part. Seller will deliver evidence of such authorization at Closing. This
Agreement has been duly executed by Seller and
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delivered to Buyer and to Seller's knowledge constitutes the legal, valid and
binding obligation of Seller, enforceable against Seller in accordance with its
terms, except as limited by laws affecting the enforcement of creditors' rights
generally or equitable principles.
6.3. No Breach. None of (i) the execution, delivery and
performance of this Agreement by Seller, (ii) the consummation of this Agreement
and all other documents or instruments related thereto or executed in connection
therewith or in contemplation of the Transaction, or (iii) Seller's compliance
with the terms and conditions hereof will, with or without the giving of notice
or the lapse of time or both, conflict with, breach the terms and conditions of,
constitute a default under, or violate Seller's certificate of incorporation or
bylaws, any judgment, decree, order, injunction, agreement, lease or other
instrument to which Seller is a party or by which Seller is legally bound, or
any law, rule, or regulation applicable to Seller or the operation of the
Stations, where such conflict or breach is reasonably likely to have a material
adverse effect on the operation of the Stations or impose material liabilities
on Buyer.
6.4. Station Licenses. The Station Licenses are all of the
licenses, permits, and other authorizations used or necessary to lawfully
operate the Stations in the manner and to the full extent as they are operated
as of the date hereof, and the Station Licenses are validly issued in the name
of Seller. Seller has delivered to Buyer true and complete copies of the Station
Licenses that are material to the operation of the Stations, including any and
all amendments and other modifications thereto. As of the date hereof, and,
except to the extent caused by Buyer's performance or non-performance under the
Time Brokerage Agreement, as of Closing, the Station Licenses are in full force
and effect; are valid for the balance of the current license term (the
expiration date of which is shown on Schedule 1.1 for each Station License),
except where such term expires prior to Closing, in which case such Station
Licenses will, except to the extent caused by Buyer's performance or
non-performance under the Time Brokerage Agreement, have been renewed prior to
Closing and will be valid for the new license term; are unimpaired by any acts
or omissions of Seller or any of its affiliates, or the employees, agents,
officers, directors, or shareholders of Seller or any of its affiliates; and are
free and clear of any restrictions which might limit the full operation of the
Stations in the manner and to the full extent as they are operated on the date
hereof (other than restrictions under the terms of the licenses themselves or of
the Commission's rules). As of the date hereof and, except to the extent caused
by Buyer's performance or non-performance under the Time Brokerage Agreement, as
of Closing, there are no applications, proceedings, or complaints pending or, to
the knowledge of Seller, threatened which may have a material adverse effect on
the business or operation of the Stations (other than rulemaking proceedings
that apply to the radio broadcasting industry generally). Seller is not aware of
any reason why those of the Station Licenses subject to expiration might not be
renewed in the ordinary course for a full term without material qualifications
or of any reason why any of the Station Licenses might be revoked. As of the
date hereof and, except to
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the extent caused by the performance or non-performance of Buyer under the Time
Brokerage Agreement, as of Closing, the Stations are in compliance with the
Commission's policy on exposure to radio frequency radiation. As of the date
hereof, and, except to the extent due to Buyer's performance or non-performance
under the Time Brokerage Agreement, as of Closing, no renewal of any Station
License would constitute a major environmental action under the rules of the
Commission. As of the date hereof, and, except to the extent due to Buyer's
performance or non-performance under the Time Brokerage Agreement, as of
Closing, there are no facts which, under the Communications Act of 1934, as
amended, or the existing rules of the Commission, would disqualify Seller from
assigning the Station Licenses or from consummating the transactions
contemplated herein within the times contemplated herein. Subject to Buyer's
fulfillment of its related obligations under the Time Brokerage Agreement,
Seller maintains an appropriate public inspection file at the Stations' studio
in accordance with Commission rules. Access to the Stations' transmission
facilities are restricted in accordance with the policies of the Commission.
6.5. Station Applications. All information contained in any
Stations Application (as described on Schedule 1.1 hereto) pending with the
Commission is true, complete and accurate in all material respects.
6.6. Title to Assets. Except as set forth on Schedule 6.6(a),
Seller has good and marketable title to the Real Property, in the case of owned
Real Property, good title to the Station Equipment, in the case of owned Station
Equipment, and a valid leasehold interest, in the case of leased Real Property
and Station Equipment, in each case free and clear of all debts, liens, charges,
security interests, mortgages, deeds of trust, pledges, judgments, trusts,
adverse claims, liabilities, collateral assignments, leases, easements,
covenants, encumbrances and other impairments of title ("Liens"), other than as
set forth on Schedule 6.6(a). At Closing, Seller shall convey to Buyer good and
marketable title to the Real Property, and title to all other Assets free and
clear of all Liens other than those set forth on Schedule 6.6(b) ("Permitted
Liens").
6.7. Condition of Equipment. The Station Equipment listed on
Schedule 1.2 constitutes all of the material personal property that is used,
held by the Seller or, as of the date hereof, others for use by the Stations, or
necessary to operate the Stations as they are now operated. As of the date
hereof and, except to the extent caused by Buyer's use of the Station Equipment
pursuant to, or breach of Buyer's obligation to maintain the equipment under,
the Time Brokerage Agreement, as of Closing, the Station Equipment is in good
operating condition and repair (reasonable wear and tear excepted), is
performing satisfactorily, is not in need of repair, has been properly
maintained, is available for immediate use and is otherwise sufficient to permit
the Stations to operate in accordance with the Station Licenses and the rules
and regulations of the Commission. All Station Equipment is type-approved or
type-accepted where such type-approval or type-acceptance is required. The
ground system of the AM Station is as specified in the current license or
applicable construction permit for the AM Station (including with respect to the
number, length and burial depth or radials).
6.8. Condition of Real Property.
(a) The Real Property listed on Schedule 1.4(a)
constitutes all the real property owned or leased by Seller or others in
connection with the operation of the Stations as they are now operated.
(b) As of the date hereof and, except to the extent
such matters are due to Buyer's performance or non-performance under the Time
Brokerage Agreement, as of Closing, Seller has not received notice of any
pending and, to the best of Seller's knowledge,
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there are no threatened or contemplated condemnation or eminent domain
proceedings that may affect the Real Property. As of the date hereof and, except
to the extent such matters are due to Buyer's performance or non-performance
under the Time Brokerage Agreement, as of Closing, Seller has not received
notice of any writ, injunction, decree, order or judgment, nor any litigation
pending, and, to the best of Seller's knowledge, none are threatened, relating
to the ownership, use, lease, occupancy or operation of any of the Real
Property. As of the date hereof and, except to the extent such matters are due
to Buyer's performance or non-performance under the Time Brokerage Agreement, as
of Closing, Seller has not received notice that Seller's use and occupancy of
the Real Property does not comply in all material respects with all regulations,
codes, ordinances, and statutes of all applicable governmental authorities,
including without limitation all environmental protection and sanitary laws and
regulations, occupational safety and health regulations, and electrical codes.
(c) (i) The premises leased for use in conjunction
with the Stations are leased pursuant to the agreements described in Schedule
1.4 (the "Lease Agreements"), which are the sole and complete agreements
concerning Seller's use of the leased premises. Neither Seller nor, to Seller's
knowledge, any other party is in default, violation or breach in any material
respect under any Lease Agreement, and to Seller's knowledge no event has
occurred and is continuing that constitutes or, with notice or the passage of
time or both, would constitute a default, violation or breach thereunder, except
to the extent caused by Buyer's performance or non-performance under the Time
Brokerage Agreement. No amount payable by Seller under any Lease Agreement is
past due. Except to the extent caused by Buyer's performance or non-performance
under the Time Brokerage Agreement, Seller has not received any notice of a
default, offset or counterclaim under any Lease Agreement or any other
communication asserting non-compliance with any Lease Agreement. Seller enjoys
peaceful and undisturbed possession of the premises leased by Seller under the
Lease Agreement. Except as set forth on Schedule 6.8(c), the Lease Agreements
are free and clear of all Liens arising from Seller's acts, except for lessors'
interests in the leases. Seller has delivered to Buyer, true and complete copies
of the Lease Agreements, together, in the case of any subleases or similar
occupancy agreements, with copies of all overleases. Except as disclosed in
Schedule 6.8(c), Seller has full legal power and authority to assign its rights
under the Lease Agreements to Buyer in accordance with this Agreement on terms
and conditions no less favorable than those in effect on the date hereof, and
such assignment will not affect the validity, enforceability and continuity of
any such lease.
(ii) To Seller's Knowledge, each Lease Agreement
is legal, valid, binding, enforceable and in full force and effect, and, except
as expressly set forth in the subject Lease Agreement, Seller has the exclusive
right to use and occupy the premises leased under each Lease Agreement.
(d) All utilities that are required for the full and
complete occupancy and use of the Real Property for the purposes for which such
properties are presently being used by Seller, including without limitation
electric, water, sewer, and telephone, have been connected and to Seller's
knowledge are in good working order, except if otherwise to the extent caused by
Buyer's performance or non-performance under the Time Brokerage Agreement. By
the Closing Date, Seller will have paid all charges for such utilities,
including without limitation any "tie-in"
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charges or connection fees, except for those charges that will not become due
until after the Closing Date and that are to be prorated between Seller and
Buyer pursuant to Article IV.
6.9. Assigned Contracts. Except with respect to such terms and
conditions that, in the aggregate, would not have a materially adverse effect on
the Stations, the Assigned Contracts are assignable to Buyer on terms and
conditions no less favorable than those in effect on the date hereof, subject to
the obtaining of consent to assignment for those Assigned Contracts identified
on Schedule 1.3(a) as requiring consent to assignment. As of the date hereof,
and, except to the extent caused by Buyer's performance or non-performance under
the Time Brokerage Agreement, as of the Closing, each Required Contract is in
full force and effect and is unimpaired by any acts or omissions of Seller,
Seller's employees, agents, officers, directors or shareholders. As of the date
hereof, and, except to the extent caused by Buyer's performance or
non-performance under the Time Brokerage Agreement, as of the Closing, Seller
has complied in all material respects with all Assigned Contracts, and there has
not occurred as to any Assigned Contract any material default by Seller or any
event that, with notice or the lapse of time or otherwise, could become a
material default by Seller. As of the date hereof, and, except to the extent
caused by Buyer's performance or non-performance under the Time Brokerage
Agreement, as of the Closing, Seller has not granted or been granted any
material waiver or forbearance with respect to any of the Required Contracts.
Except where such default by a third party would not have a materially adverse
effect on the Stations, to the best knowledge of Seller, as of the date hereof,
and, except to the extent caused by Buyer's performance or non-performance under
the Time Brokerage Agreement, as of the Closing, there has not occurred as to
any Assigned Contract any default by any other party thereto or any event that,
with notice or the lapse of time or at the election of any person other than
Seller, could become a default by such party. As of the date hereof, and, except
to the extent caused by Buyer's performance or non-performance under the Time
Brokerage Agreement, as of the Closing, those Assigned Contracts whose stated
duration extends beyond the Closing Date will, at Closing, be in full force and
effect and will be unimpaired by any acts or omissions of Seller, Seller's
agents, employees, officers, directors or shareholders, except as may be
reasonably necessary in the conduct of the Stations' business. Seller has
provided to Buyer true and correct copies of all written Assigned Contracts, as
modified to date, or true and complete memoranda describing the terms of all
oral Assigned Contracts, and all material liabilities and obligations under such
Assigned Contracts can be ascertained from such copies or memoranda. Except as
permitted hereunder, the Assigned Contracts as amended through the date of this
Agreement will not be modified without Buyer's written consent, which consent
shall not be unreasonably withheld, and shall be deemed granted if Buyer does
not notify Seller in writing of Buyer's reasonable grounds for withholding
consent within five (5) business days of Buyer's receipt of Seller's written
request for consent.
6.10. Employees.
(a) Schedule 6.10 contains a true and complete list
of all persons employed by Seller at the Stations, each such person's
compensation and bonus arrangements and the Employee Plans listed in Schedule
6.11, if any, applicable to each such person. As of the date hereof, Seller is
not a party to any agreement or arrangement, written or oral, with salaried
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or non-salaried employees except as described in Schedules 6.10 and 6.11 or
included among the Operating Contracts. Except as described in Schedule 6.10,
Seller has no knowledge as of the date hereof that any employee identified in
Schedule 6.10 currently plans to terminate employment, whether by reason of the
transactions contemplated by this Agreement or otherwise.
(b) Except as disclosed in Schedule 6.10, Seller is
not a party to or subject to any contract with any labor organization, nor has
Seller agreed to recognize any union or other collective bargaining unit, nor
has any union or other collective bargaining unit been certified as representing
any of Seller's employees at the Stations. As of the date hereof, Seller has no
knowledge of any organizational effort currently being made or threatened by or
on behalf of any labor union with respect to employees of Seller at the
Stations. As of the date hereof, there are no unfair labor practice charges
pending or, to the best of Seller's knowledge, threatened against Seller; there
are no pending or threatened strikes, arbitration proceedings involving labor
matters or other labor disputes affecting Seller or the Stations; and Seller has
not experienced any strikes, work stoppages or other significant labor
difficulties of any nature at the Stations in the past two (2) years.
6.11. Employee Benefit Plans. Schedule 6.11 sets forth a true
and complete list of each employee or retiree benefit or compensation plan
within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or compensation, bonus, incentive, deferral,
equity based, severance, termination, retention, change in control, employment
or other similar program, agreement, arrangement, trust or other funding
arrangement, whether or not subject to the provisions of ERISA, to which Seller
is bound or that is or has been established or maintained or in respect of which
Seller has had any obligation to contribute during the last three (3) years
(each, an "Employee Plan"). Except pursuant to an Employee Plan, Seller has no
fixed or contingent liability or obligation to or in respect of any person now
or formerly employed at the Stations or any beneficiary or dependent of any such
person, including, without limitation, in respect of pension or thrift benefits
or payments, individual or supplemental pension benefits or payments or
compensation arrangements, contributions to hospitalization or other health,
life or other welfare benefits, incentive benefits or payments, bonus benefits
or payments or vacation, sick leave, disability and termination benefits or
payments, including workers' compensation. Except as disclosed on Schedule 6.11,
no trade or business (whether or not incorporated) is or has been as of any date
within the preceding six (6) years treated as a single employer together with
Seller pursuant to Section 414 of the Internal Revenue Code of 1986, as amended,
and the regulations thereunder (the "Code"). Seller has not incurred or does not
reasonably expect to incur (either directly or indirectly, including as a result
of any indemnification obligation) any liability that could become a liability
of Buyer or, following the Closing, remain a liability of the Stations under or
pursuant to Title I or IV of ERISA or the penalty, excise tax or joint and
several liability provisions of the Code relating to employee benefit plans and,
to the best knowledge of Seller, no event, transaction or condition has occurred
or exists which could result in any such liability. Each of the Employee Plans
has been operated and administered in all respects in accordance with all
applicable laws, including but not limited to ERISA and the Code. It is
expressly understood that Buyer is not assuming any obligation of Seller under
or with respect to any Employee Plan.
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6.12. Litigation. Except as set forth on Schedule 6.12, there
is no unsatisfied judgment outstanding and no litigation, proceeding, claim or
investigation of any nature pending or, to Seller's best knowledge, threatened
against Seller or any of the Assets which is reasonably likely to materially
adversely affect the continued operation of the Stations or materially impair
the value of the Assets or which is reasonably likely to materially adversely
affect Seller's ability to perform in accordance with the terms of this
Agreement. Seller has no knowledge of any facts that could reasonably result in
any proceedings that would be reasonably likely to have a material adverse
effect on the Stations. With respect to each matter set forth therein, Schedule
6.12 sets forth a description of the forum for the matter, the parties thereto
and the type and amount of relief sought.
6.13. Payment of Taxes. Seller has, or by the Closing Date
will have, duly filed all tax returns and forms required to be filed in respect
of the Stations and paid in full or discharged all taxes, assessments, excises,
interest, penalties, deficiencies and other levies relating to the Assets,
excepting such taxes, assessments, and other levies as will not be due until
after the Closing Date or that are to be prorated between Seller and Buyer
pursuant to Article IV. To Seller's knowledge, no event has occurred that could
impose on Buyer any liability for any taxes, penalties, or interest due or to
become due from Seller from any taxing authority, except to the extent such
event is caused by Buyer's performance or non-performance under the Time
Brokerage Agreement.
6.14. Compliance With Laws. As of the date hereof, Seller has
complied in all material respects with, and is not in material violation of any
federal, state or local laws, regulations or orders (including any applicable
statutes, ordinances or codes relating to zoning and land use, health and
sanitation, environmental protection, occupational safety, and the use of
electrical power) affecting the Assets, Seller's business, or the operation of
the Stations. Without limiting the generality of the foregoing:
(a) As of the date hereof, the Stations' transmitting
and studio equipment is operating in all material respects in accordance with
the terms and conditions of the Station Licenses and all underlying construction
permits, and the rules, regulations and policies of the Commission, including
without limitation all regulations concerning equipment authorization and human
exposure to radio frequency radiation. To the best of Seller's knowledge, (i)
the Stations are not causing interference in violation of Commission rules to
the transmission of any other broadcast Station or communications facility and
have not received any complaints with respect thereto and (ii) no other
broadcast Station or communications facility is causing interference in
violation of Commission rules to the Stations' transmissions or the public's
reception of such transmissions.
(b) Seller has, in the conduct of the Stations'
business, complied in all material respects with all applicable laws, rules and
regulations relating to the employment of labor, including those concerning
wages, hours, equal employment opportunity, collective bargaining, pension and
welfare benefit plans, and the payment of Social Security and similar taxes, and
Seller is not liable for any arrearages of wages or any tax penalties due to any
failure to comply with any of the foregoing.
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(c) As of the date hereof, Seller has received no
notification from the Commission that Seller's affirmative action program for
the Stations or Seller's other employment practices fail to comply with
Commission rules and policies.
(d) As of the date hereof, all ownership reports,
employment reports, tax returns and other documents required to be filed by
Seller with the Commission or other governmental authorities have been filed,
and, except to the extent caused by Buyer's performance or non-performance under
the Time Brokerage Agreement, will be filed through the Closing Date. Such items
as are required to be placed in the Stations' local public inspection files have
been placed in such files, and, subject to Buyer's fulfillment of its related
obligations under the Time Brokerage Agreement, will be placed in such files
until Closing. As of the date hereof, all proofs of performance and measurements
that are required to be made by Seller with respect to the Stations'
transmission facilities have been completed and filed at the Stations. As of the
date hereof, and except as affected by Buyer's performance under the Time
Brokerage Agreement, as of Closing, all information contained in the foregoing
documents is true, complete and accurate in all material respects.
(e) All towers and other structures owned by Seller
and used in the operation of the Stations or located on the Real Property are
obstruction marked and lighted to the extent required by, and in accordance with
the rules and regulations of the FAA, the Commission and other federal, state
and local authorities. To Seller's knowledge, appropriate tower registrations
required to be filed with the FCC and appropriate notifications required to be
filed with the FAA regarding the towers owned by Seller and used in the
operation of the Stations or located on the Real Property have been filed.
6.15. Insolvency Proceedings. Neither Seller nor the Assets
are the subject of any pending or threatened insolvency proceedings of any
character, including without limitation bankruptcy, receivership,
reorganization, composition or arrangement with creditors, voluntary or
involuntary. Seller has not made an assignment for the benefit of creditors or
taken any action in contemplation of or which would constitute a valid basis for
the institution of any such insolvency proceedings. After giving effect to the
Transaction, Seller (i) will have sufficient capital to carry on its business
and transactions, (ii) will be able to pay its debts as they mature or become
due, and (iii) will own assets the fair value of which will be greater than the
sum of all liabilities (including contingent liabilities) of Seller not
specifically assumed by Buyer pursuant to the terms of this Agreement. Seller is
not insolvent nor will it become insolvent as a result of entering into this
Transaction.
6.16. Citizenship. Seller is not a "foreign person" as defined
in Section 1445(f)(3) of the Code. On the Closing Date, Seller will deliver to
Buyer an affidavit to that effect, verified as true and sworn to under penalty
of perjury by a duly-authorized officer of Seller. The affidavit shall also set
forth Seller's name, address, taxpayer identification number, and such
additional information as may be required to exempt the Transaction from the
withholding provisions of Section 1445 of the Code. Buyer shall have the right
to furnish copies of the affidavit to the Internal Revenue Service.
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6.17. Patents, Trademarks, Copyrights.(a) The call signs and
all slogans, logos, copyrights, patents, trademarks, trade names, service marks,
and other similar intangible property rights, including registrations and
applications to register or renew the registrations of any of the foregoing,
used as of the date hereof to promote or identify the Stations, or otherwise
used in connection with the Stations' business, are listed or described on
Schedule 1.5 (the "Promotional Rights"). The Promotional Rights are either owned
or validly licensed by Seller, and Schedule 1.5 identifies which Promotional
Rights are so owned and which are licensed, and if licensed, the royalties paid
thereon and the parties paid thereunder. Except to the extent due to Buyer's
performance or non-performance under the Time Brokerage Agreement, the
operations of the Stations do not infringe any copyright, patent, trademark,
trade name, service ▇▇▇▇, or other similar right of any third party. Except in
connection with its agreements with ▇▇▇ Interactive Media, ▇▇▇▇▇▇▇▇'▇
Corporation, and Power Pulse Magazine, Seller has not sold, licensed or
otherwise disposed of any Promotional Rights to any person or entity and Seller
has not agreed to indemnify any person or entity for any patent, trademark or
copyright infringement. Schedule 1.5 lists all of the Promotional Rights which
have been duly registered by Seller with, filed by Seller in, or issued at the
request of Seller by, as the case may be, the United States Patent and Trademark
Office and United States Copyright Office or other filing offices, domestic or
foreign.
(b) As of the date hereof, and, except to the extent
due to Buyer's performance or non-performance under the Time Brokerage
Agreement, as of Closing, Seller does not have any knowledge, nor has Seller
received any notice to the effect that its use of any of the Promotional Rights
may be or are claimed to infringe on the right of another. As of the date
hereof, and, except to the extent due to Buyer's performance or non-performance
under the Time Brokerage Agreement, as of Closing, Seller has no knowledge of
any infringement or unlawful or unauthorized use of such Promotional Rights,
including without limitation the use of any call sign, slogan or logo by any
broadcast or cable Station in the Phoenix, Arizona area that may be confusingly
similar to the call signs, slogans, and logos currently used by the Stations.
6.18. Financial Statements. Seller has furnished Buyer with
the financial statements listed or described on Schedule 6.18 (the "Financial
Statements"). The year-end Financial Statements: (i) have been prepared in
accordance with United States Generally Accepted Accounting Principles ("GAAP")
on a consistent basis throughout the periods involved and as compared with prior
periods and (ii) fairly and accurately reflect the financial condition and the
results of operations and cash flows of the Stations as of the dates and for the
periods indicated. The monthly and other interim Financial Statements: (i) have
been prepared in accordance with GAAP on a consistent basis throughout the
periods involved (except to the extent noted thereon) and on a basis consistent
with the year-end Financial Statements, and (ii) fairly and accurately reflect
the financial condition and the results of operations and cash flows of the
Stations as of the dates and for the periods indicated in all material respects.
Except as reflected in the Financial Statements or otherwise disclosed to Buyer
in writing, no event has occurred since the preparation of the most recent
Financial Statements that would make such Financial Statements misleading in any
respect.
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6.19. Sufficiency of Assets. The Assets are reasonably
sufficient to operate the Stations as they are operated as of the date hereof in
all material respects.
6.20. No Misleading Statements. No statement made by Seller to
Buyer in this Agreement contains any untrue statement of a material fact or
omits or will omit a material fact necessary in order to make such statements or
information not misleading as of the date hereof. Any information disclosed in
any provision of or schedule to this Agreement shall be deemed to be disclosed
for the purposes of all provisions and schedules to this Agreement.
6.21. Broadcast Cash Flow. The broadcast cash flow for the
Stations (the "BCF") for the twelve month period that ended July 31, 1998 is
greater than or equal to the BCF for calendar year 1997.
6.22. Limitation of Buyer's Representations and Warranties.
Seller acknowledges and agrees that except as expressly set forth in this
Agreement, Buyer makes no representations or warranties of any nature with
respect to the matters discussed herein.
6.23. Definition of Seller's Knowledge. As used in this
Agreement, references to the knowledge of Seller shall be deemed to refer to
matters: (i) within the actual, conscious knowledge of ▇▇▇▇▇▇ or ▇▇▇▇▇, without
imputation of the knowledge of any other person; or (ii) as to which a
reasonable person in the same position as ▇▇▇▇▇▇ or ▇▇▇▇▇ would be expected to
have knowledge.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer makes the following representations and warranties, all
of which have been relied upon by Seller in entering into this Agreement and,
except as otherwise specifically provided, all of which shall be true and
correct as of Closing.
7.1. Organization. Buyer is a corporation duly organized,
validly existing, and in good standing, under the laws of the State of Delaware,
and is duly qualified to do business in the State of Arizona.
7.2. Authorization. The execution and delivery of this
Agreement by Buyer has been duly authorized by all necessary corporate action on
its part. Buyer will deliver evidence of such authorization at Closing. This
Agreement has been duly executed by Buyer and delivered to Seller and to Buyer's
knowledge constitutes the legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms, except as limited by
laws affecting the enforcement of creditors' rights generally or equitable
principles.
7.3. No Breach. None of (i) the execution, delivery and
performance of this Agreement by Buyer, (ii) the consummation of the
Transaction, or (iii) Buyer's compliance with the terms and conditions hereof
will, with or without the giving of notice or the lapse of time or both,
conflict with, breach the terms and conditions of, constitute a default under,
or violate Buyer's articles of incorporation, bylaws, any judgment, decree,
order, agreement, lease
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or other instrument to which Buyer is a party or by which Buyer is legally
bound, or any law, rule or regulation applicable to Buyer.
7.4. Litigation. There is no action, suit, investigation or
other proceedings pending or, to Buyer's best knowledge, threatened which may
adversely affect Buyer's ability to perform in accordance with the terms of this
Agreement, and Buyer is unaware of any facts which could reasonably result in
any such proceeding.
7.5. No Misleading Statements. To Buyer's knowledge, no
statement made by Buyer to Seller and no information provided or to be provided
by Buyer to Seller pursuant to this Agreement or in connection with the
negotiations covering the purchase and sale contemplated herein contains or will
contain any untrue statement of a material fact or omits or will omit a material
fact necessary in order to make such statements or information not misleading.
7.6. Qualification as Broadcast Licensee. Buyer knows of no
fact that would, under the Communications Act of 1934, as amended, or the rules,
regulations and policies of the FCC and other federal agencies and departments,
disqualify Buyer from becoming the licensee of the Stations. There are no
proceedings, complaints, notices of forfeiture, claims, investigations pending
or, to the knowledge of Buyer, threatened against any or in respect of any of
the broadcast stations licensed to Buyer or its affiliates that would materially
impair the qualifications of Buyer to become a licensee of the Stations.
7.7. Limitation of Seller's Representations and Warranties.
Buyer acknowledges and agrees that except as expressly set forth in this
Agreement, Seller makes no representations or warranties of any nature with
respect to the Assets or the Stations. At Closing, provided that Seller has
complied fully with its obligations under Section 9.8, Buyer shall have fully
investigated and evaluated the condition and operation of the Assets and shall
acquire the Assets on an "As-Is," "Where-Is" basis, subject only to the
representations and warranties expressly set forth herein.
7.8. Buyer's In-Market Revenue. Buyer represents, as of the
date hereof, that the comparable revenues of Buyer's radio stations in the
Phoenix, Arizona radio market are, in the aggregate, not materially greater than
the figures for estimated station revenues set forth in the most recent edition
of the Radio Market Report published by BIA Research, Inc.
ARTICLE VIII.
ENVIRONMENTAL MATTERS
8.1. Definitions.
"Environmental Law" means any and all federal, state, local or
foreign statutes, laws, regulations, guidances, policies, ordinances, court
decisions, orders or rules relating to the environment; occupational safety and
health; the effect of the environment or Hazardous Materials on human health;
emissions, discharges or releases of Hazardous Materials into the environment,
including without limitation into ambient air, surface water, groundwater or
land;
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or otherwise relating to the handling of Hazardous Materials or the clean-up or
other remediation thereof.
"Hazardous Materials" means any and all "hazardous substances"
"hazardous wastes," "pollutants," "contaminants" or "toxic substances," as
defined by the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act,
42 U.S.C. Section 6901 et seq., the Clean Water Act, 33 U.S.C. Section 1251 et
seq., the Clean Air Act, 42 U.S.C. Section 7401 et seq., or the Toxic Substances
Control Act, 15 U.S.C. Section 2601 et seq., and regulations promulgated
thereunder, or any analogous state and local laws and regulations; including but
not limited to petroleum and petroleum products, polychlorinated biphenyls
("PCBs") and asbestos.
"Affiliates" means entities that control Seller, are under
control of Seller or are under common control with Seller.
8.2. Environmental Compliance. Except as set forth on Schedule
8.2:
(a) As of the date hereof and, except to the extent
caused after the TBA Commencement Date by Buyer, its agents, employees, or other
persons while acting pursuant to a contract with Buyer, as of Closing, with
respect to the Assets or operation of the Stations, Seller and its predecessors
and Affiliates are in compliance in all material respects with all Environmental
Laws, and no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, demand, or notice has been filed, commenced or threatened
against Seller which: (i) asserts or alleges that Seller violated any
Environmental Laws; (ii) asserts or alleges that Seller is required to clean up,
remove or take remedial or other response action due to the disposal,
depositing, discharge, leaking or other release of any Hazardous Materials; or
(iii) asserts or alleges that Seller is required to pay all or a portion of the
cost of any past, present or future cleanup, removal or remedial or other
response action which arises out of or is related to the disposal, depositing,
discharge, leaking or other release of any Hazardous Materials. Without limiting
the generality of the foregoing, to the knowledge of Seller, each of Seller and
its Affiliates is in full compliance in all material respects with all of the
terms and conditions of all permits, licenses, and other authorizations which
are required under Environmental Laws with respect to the Assets or operation of
the Stations;
(b) Except for the presence of asbestos-containing
materials at the Real Property, to the knowledge of Seller as of the date hereof
and, and, except to the extent caused after the TBA Commencement Date by Buyer,
its agents, employees, or other persons while acting pursuant to a contract with
Buyer, as of Closing, no Person has caused or permitted Hazardous Materials to
be stored, deposited, treated, recycled or disposed of on, under or at any Real
Property owned, leased, used or occupied by Seller which Hazardous Materials, if
known to be present, would require the expenditure of material costs for
cleanup, removal or other remedial action under any Environmental Laws;
(c) To Seller's knowledge as of the date hereof and,
except to the extent caused by Buyer's performance under the Time Brokerage
Agreement, as of Closing, there are not now, nor, to the knowledge of Seller,
have there previously been, underground or
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above ground storage on, under, or at the Real Property which have, or to the
knowledge of Seller, are likely to require the expenditure of material costs for
achieving compliance with Environmental Laws or for cleanup, removal or some
other remedial action under Environmental Laws;
(d) To Seller's knowledge as of the date hereof and,
and, except to the extent caused after the TBA Commencement Date by Buyer, its
agents, employees, or other persons while acting pursuant to a contract with
Buyer, as of Closing, there are no conditions existing currently which would
subject Seller to damages, penalties, injunctive relief or cleanup costs under
any Environmental Laws or which require or are likely to require the expenditure
of material costs for cleanup, removal, or other remedial action pursuant to
Environmental Laws by Seller; and
(e) To Seller's knowledge as of the date hereof and,
and, except to the extent caused after the TBA Commencement Date by Buyer, its
agents, employees, or other persons while acting pursuant to a contract with
Buyer, as of Closing, Seller is not subject to any judgment, order or citation
related to or arising out of any Environmental Laws and has not been named or
listed as a potentially responsible party by any governmental body or agency at
any site listed on the Federal National Priorities List or any similar State
list of contaminated sites.
ARTICLE IX.
PRE-CLOSING OBLIGATIONS
The parties covenant and agree as follows with respect to the
period prior to the Closing Date:
9.1. Application for Commission Consent. Within five (5)
business days after the date hereof (the "Application Filing Date"), Seller and
Buyer shall join in and file an application or applications requesting the
Commission's written consent to the assignment of the Station Licenses from
Seller to Buyer (the "Assignment Applications"), and they will diligently take
all steps necessary or desirable and proper to prosecute expeditiously the
Assignment Applications, including, without limitation, compliance with the
public notice requirements of the Communications Act of 1934, as amended. The
failure by either party to timely file or diligently prosecute its portion of
the Assignment Applications shall be deemed a material breach of this Agreement.
Each party shall bear its own expenses in connection with the preparation,
filing and prosecution of the Assignment Applications. Buyer shall not directly
or indirectly, through its "ultimate parent entity," as defined in the HSR Act,
any affiliate or otherwise, acquire or agree to acquire any other radio or
television station in the Phoenix, Arizona area or any attributable interests
therein at any time prior to the earlier of the Closing Date or the date the
consent of the FCC to the Assignment Applications (the "FCC Consent") becomes a
Final Order, except (i) where such actions would not delay more than thirty (30)
days either the FCC Consent or the expiration of the waiting period under the
HSR Act, as defined below, without a second request by the Federal trade
Commission or the Department of Justice for information regarding this
transaction; or (ii) as part of a multi-station, multi-market transaction, in
which case Buyer shall agree to enter into one or more contracts for the sale,
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transfer, or other disposal as necessary of any additional stations in the
Phoenix, Arizona area within six (6) months of the date of acquisition thereof.
9.2. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. Within ten (10) business days
after the date of this Agreement, each party shall submit to the United States
Department of Justice and the United States Federal Trade Commission all forms
and information applicable to the transaction required under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and the rules
promulgated thereunder (the "HSR Act"), and shall furnish to the other party all
information that the other reasonably requests in connection with such filings.
9.3. Other Governmental Consents. Promptly following the
execution of this Agreement, Seller and Buyer shall proceed to prepare and file
with the appropriate governmental authorities (other than the Commission) such
requests, if any, for approval or waiver as may be required from such
governmental authorities in connection with the Transaction, and shall jointly,
diligently and expeditiously prosecute, and shall cooperate fully with each
other in the prosecution of, such requests for approval or waiver and all
proceedings necessary to secure such approvals and waivers.
9.4. Financial Information. Between the date hereof and the
earlier of the TBA Commencement Date and the Closing Date, Seller shall furnish
Buyer with monthly financial statements within thirty (30) days after the end of
each calendar month, and with such sales, expense and other financial reports as
are prepared by Seller in the ordinary course of business.
9.5. Consents. Seller shall use its commercially reasonable
best efforts to obtain the consents of the other contracting parties to the
assignment of the Assigned Contracts requiring such consent. The delivery of the
Required Consents shall be a condition to Buyer's obligation to close under
Section 10.2.7.
9.6. Surveys. Within thirty (30) days after the date of this
Agreement, Seller shall deliver to Buyer surveys of the Real Property (the
"Surveys") sufficient to remove any "survey exception" from the title insurance
policies to be issued pursuant to the Title Commitment. Within fifteen (15) days
of receipt of the Surveys, Buyer shall give Seller notice of any exceptions to
matters revealed by the Surveys that would reasonably be expected to have a
material adverse effect on the Stations or to result in material costs to Buyer
after Closing (the "Objectionable Exceptions"). If Buyer fails to give such
notice in a timely manner, Buyer shall be deemed to have accepted matters
revealed by the Surveys other than the Objectionable Exceptions expressly set
forth in the notice. Within fifteen (15) days after receipt of Buyer's notice,
Seller shall notify Buyer that, with respect to each Objectionable Exception,
Seller will (i) attempt to cure or remove such Objectionable Exception prior to
Closing and, if unable to cure or remove such Objectionable Exceptions,
indemnify Buyer regarding such Objectionable Exception pursuant to Section
12.1.1, or (ii) neither cure or remove nor indemnify Buyer regarding such
Objectionable Exception, in which case Buyer shall have the option to terminate
this Agreement by giving Seller written notice thereof within fifteen (15)
business days of receipt of notice of Seller's election, or Buyer shall be
deemed to have waived such right of termination.
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If Seller fails to elect either of options (i) or (ii) above within the fifteen
(15) day period, then Seller shall be deemed to have elected option (i).
9.7. Confidentiality. Each party agrees that any and all
information learned or obtained by it from the other (and that is not otherwise
public or known in the radio broadcast industry) shall be confidential and
agrees not to disclose any such information to any person whatsoever other than
as is necessary for the purpose of effecting the Transaction or as otherwise
required by law.
9.8. Access. Except as otherwise provided in the Time
Brokerage Agreement, between the date hereof and the Closing Date, Seller shall
give, upon prior notice and at such times as are necessary or desirable for
maintaining confidentiality regarding the transaction contemplated under this
Agreement, Buyer or representatives of Buyer (including underwriters, lenders,
consultants and investors) reasonable access to the Assets and to the books and
records of Seller relating to the business and operation of the Stations. It is
expressly understood that, pursuant to this Section, Buyer, at its sole expense,
shall be entitled to make such engineering inspections of the Stations and
surveys of the Real Property, and such audits of the Stations' financial records
as Buyer may desire, so long as the same do not unreasonably interfere with
Seller's operation of the Stations.
9.9. Employee Matters.
(a) As set forth on Schedule 6.10, Seller has
provided to Buyer an accurate list of all current employees of the Stations
together with a description of the terms and conditions of their respective
employment and their duties as of the date of this Agreement. Seller shall
promptly notify Buyer of any changes that occur prior to Closing with respect to
such information.
(b) Upon the earlier of the TBA Commencement Date or
the Closing Date, Buyer shall hire the employees of Seller identified on
Schedule 9.12(b) (the "Scheduled Employees"), and other employees of Seller
hired pursuant to Section 1.3(b)(ii), and assume their employment contracts as
listed on Schedule 1.3(a). If the parties enter into and perform the Time
Brokerage Agreement, then the two employees of Seller in its capacity as
Licensee under the Time Brokerage Agreement shall be hired by Buyer as of the
Closing Date. Nothing in this Agreement shall obligate Buyer to hire any
employee of Seller, except as set forth above. Buyer may extend offers of
employment to those other employees of Seller whom it desires to hire, which
offers shall be on terms and conditions that Buyer shall determine in its sole
discretion. Such employees who accept such offers and enter into employment with
Buyer are hereinafter referred to as the "Hired Employees." Except as may relate
to any claims by Buyer or any Hired Employee against Seller, Seller waives any
claims against Buyer or any of the Hired Employees arising from the offer of
employment to, or acceptance of employment by, any Hired Employee, including
without limitation any claims arising from any employment agreement or
non-compete agreement. On or prior to the earlier of the TBA Commencement Date
or Closing, Seller shall (i) compensate each of the Scheduled Employees and the
Hired Employees for all accrued vacation and sick leave; (ii) terminate the
employment of all Hired Employees and cooperate
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with, and use its best commercially reasonable efforts to assist, Buyer in its
efforts to secure satisfactory employment arrangements with the Hired Employees
to whom Buyer makes offers of employment. For purposes of clause (i) of the
preceding sentence, "accrued" shall mean an amount of vacation or leave that:
(i) has been earned by a Scheduled or Hired Employee or granted to such
Scheduled or Hired Employee by Seller, acting in the ordinary course of business
consistent with past practice, in respect of a particular period of such
Scheduled or Hired Employee's employment, all or part of which period precedes
the Closing Date, (ii) is the proportional part of such vacation or leave
corresponding to all or such portion of such period of employment prior to the
Closing Date, and (iii) has not been taken by such Scheduled or Hired Employee
and for which such Scheduled or Hired employee has not been compensated. After
the date that the Scheduled Employees and Hired Employees begin employment with
Buyer and during the time that Buyer shall collect Seller's Accounts Receivable
pursuant to this Agreement or the Time Brokerage Agreement, as applicable, Buyer
shall pay commissions to such employees in respect of sales entered prior to
such date but for which payment is not collected until after such date,
deducting such commissions from the amounts collected by Buyer on such Accounts
Receivable.
(c) Nothing contained in this Agreement shall confer
upon any employee of Seller any right with respect to continued employment by
Buyer, nor shall anything herein interfere with the right of Buyer to terminate
the employment of any of the Hired Employees at any time, with or without cause,
provided that Buyer shall not terminate the employment of any employee
identified on Schedule 9.1 2(b) except in accordance with the terms of such
employee's employment agreement with Seller (as assigned to, and assumed by,
Buyer).
9.10. Operations Prior to Closing. Between the date of this
Agreement and the Closing Date, and except to the extent of Buyer's obligations
under the Time Brokerage Agreement:
(a) Seller shall operate the Stations in the normal
and usual manner, consistent with Seller's past practice and the rules,
regulations, and policies of the Commission and all terms and conditions of the
Station Licenses, and shall conduct the Stations' business only in the ordinary
course. To the extent consistent with such operations, Seller shall use its
commercially reasonable best efforts to: (i) maintain the present character and
entertainment format of the Stations and the quality of their programs; (ii)
keep available for Buyer the services and number of the Stations' present
employees reasonably necessary for the operation of the Stations; (iii) preserve
the Stations' present customers and business relations; (iv) continue to make
expenditures and engage in activities designed to promote the Stations; (v)
continue making capital expenditures in accordance with the capital expenditure
budget for the Stations and otherwise consistent with past practices of the
Stations; and (vi) undertake to collect their accounts receivable in accordance
with Seller's normal and customary collection practices.
(b) Seller shall: (i) subject to Article XIV,
maintain the Assets in their present condition (reasonable wear and tear in
normal use excepted); and (ii) maintain all
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inventories of supplies, tubes, and spare parts at levels consistent with the
Stations' prior practices.
(c) Seller shall maintain its books and records in
the usual and ordinary manner, on a basis consistent with prior periods.
(d) Seller shall comply with all laws, rules,
ordinances and regulations applicable to it, to the Assets and to the business
and operation of the Stations, where the failure to so comply will have a
material adverse effect on the Assets or the Stations, or on the interests of
Buyer therein.
(e) Except to the extent that such defaults in the
aggregate do not have a material adverse effect on the Stations or on any
Required Contract, Seller shall perform its obligations under all Assigned
Contracts without default and shall pay all of Seller's trade accounts payable
in a timely manner; provided, however, that Seller may dispute, in good faith,
any alleged obligation of Seller.
(f) Seller shall not, without the express written
consent of Buyer which shall not be unreasonably withheld, and which shall be
deemed given in the event Buyer has not responded to a written request therefor
within ten (10) days: (i) sell or agree to sell or otherwise dispose of any of
the Assets (A) other than in the ordinary course of business, and (B) unless
such Assets are (x) obsolete or worn beyond use and no longer necessary for the
conduct of the operation of the Stations as conducted on the date hereof, or (y)
replaced prior to Closing by assets of equal or greater worth, quality and
utility; (ii) acquiesce in any infringement, unauthorized use or impairment of
the Intangible Property, or change the Stations' call signs; (iii) enter into
any employment contract on behalf of the Stations unless the same is terminable
at will and without penalty; or (iv) enter into any other contract, lease or
agreement that will be binding on Buyer after Closing.
9.11. Adverse Developments. Seller shall promptly notify Buyer
of any unusual or materially adverse developments that occur prior to Closing
with respect to the Assets or the operation of the Stations; provided, however,
that Seller's compliance with the disclosure requirements of this Section 9.14
shall not relieve Seller of any obligation with respect to any representation,
warranty or covenant of Seller in this Agreement or waive any condition to
Buyer's obligations under this Agreement.
9.12. Administrative Violations. If Seller receives any
finding, order, complaint, citation or notice prior to the Closing Date which
states that any aspect of the Stations' operations violates any rule or
regulation of the Commission or of any other governmental authority (an
"Administrative Violation"), including without limitation any rule or regulation
concerning environmental protection, the employment of labor, or equal
employment opportunity, Seller shall promptly notify Buyer of the Administrative
Violation and, except to the extent that such Administrative Violation is the
result of Buyer's performance under the Time Brokerage Agreement, remove or
correct the Administrative Violation and be responsible for the payment of all
costs associated therewith, including any fines or back pay that may be
assessed.
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9.13. Bulk Sales Act. Seller agrees to indemnify, defend, and
hold Buyer harmless against any claims, liabilities, costs, or expenses,
including reasonable attorneys' fees, that Buyer may incur as a result of the
failure to comply with the bulk sales provisions of the Uniform Commercial Code
or similar laws.
9.14. Asbestos-Containing Material. Prior to the earlier of
the TBA Commencement Date and the Closing Date, Seller shall commence and
thereafter diligently complete, at Seller's expense, any actions legally
required and consistent with sound environmental practice to address
asbestos-containing materials identified as being present at the Real Property
in the report of the environmental assessment of the Real Property completed on
behalf of Buyer by Versar, Inc. based on its site inspections at the Real
Property conducted prior to the date hereof.
9.15. Control of Stations. This Agreement shall not be
consummated until after the Commission has given its written consent thereto,
and notwithstanding anything herein to the contrary, between the date of this
Agreement and the Closing Date, Buyer shall not directly or indirectly control,
supervise or direct, or attempt to control, supervise or direct the operation of
the Stations. Such operations shall be the sole responsibility of Seller;
provided, however, that concurrently with the execution of this Agreement, the
parties shall execute the Time Brokerage Agreement.
ARTICLE X.
CONDITIONS PRECEDENT
10.1. Mutual Conditions. The obligation of both Seller and
Buyer to consummate this Agreement is subject to the satisfaction of each of the
following conditions:
10.1.1. Governmental Consents. The Commission shall
have granted the FCC Consent. Any applicable waiting period under the HSR Act
shall have expired or been earlier terminated without receipt of any second or
subsequent request for information from the Department of Justice or Federal
Trade Commission, or the time period for further action by such agencies
following any such second or subsequent request for information shall have
passed, and there shall have been neither any commencement of any litigation by
any governmental authority of competent jurisdiction to restrain the
consummation of the Transaction, nor any written notice from such governmental
authority of a decision to commence such litigation, which has not been
withdrawn or otherwise resolved.
10.1.2. Absence of Litigation. As of the Closing
Date, no order enjoining, restraining, or prohibiting the consummation of the
Transaction shall have been entered by any court, the Commission, or any other
governmental authority; provided, however, that this condition may not be
invoked by a party if any such action, suit, or proceeding was solicited or
encouraged by, or instituted as a result of any act or omission of, such party.
10.2. Conditions to Buyer's Obligation. In addition to
satisfaction of the mutual conditions contained in Section 10.1, the obligation
of Buyer to consummate this Agreement is subject to the satisfaction of each of
the following conditions:
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10.2.1. Representations and Warranties. Except as
expressly set forth therein, the representations and warranties of Seller to
Buyer shall be true, complete, and correct in all material respects as of the
Closing Date with the same force and effect as if then made, except where such
inaccuracy will not have a material adverse effect upon the operations of the
Stations or impose material obligations on Buyer for which Seller does not agree
to be responsible; provided, however, that, in the event any of the
representation and warranties of Seller contained in Sections 6.7, 6.8(b),
6.8(c)(ii), 6.17(b), or 8.2 fail to satisfy the requirements of this Section
10.2.1, and the event giving rise to such failure shall have occurred after the
TBA Commencement Date (as to such specified provisions, a "Post-TBA Default"),
then such Post-TBA Default shall not relieve Buyer of its obligation to close in
accordance with the terms hereof. The limitation as to Post-TBA Defaults set
forth in the preceding sentence shall affect neither Buyer's right to obtain any
other relief otherwise available in the event of a Post-TBA Default nor Seller's
rights and Buyer's obligations in respect of any other representations and
warranties of Seller set forth herein.
10.2.2. Compliance with Conditions. All of the terms,
conditions and covenants to be complied with or performed by Seller on or before
the Closing Date shall have been timely complied with and performed in all
material respects, except where such non-compliance will not have a material
adverse effect upon the operation of the Stations, the financial condition of
the Assets, or Buyer's interests therein.
10.2.3. Title Commitment. Buyer shall have received
the commitment of a title insurance company reasonably satisfactory to Buyer
agreeing to issue to Buyer, at standard rates, current ALTA form extended
coverage title insurance policies, insuring Buyer's interest in the Real
Property (the "Title Commitment"), which shall reveal nothing inconsistent with
Seller's representations and warranties hereunder.
10.2.4. Validity of Station Licenses. On the Closing
Date, Seller shall be the owner and holder of the Station Licenses to the extent
that such authorizations can be owned or held by Seller under the Communications
Act of 1934, as amended; the Station Licenses shall be in full force and effect,
valid for the balance of the current license term as set forth in Schedule 1.1;
and the Station Licenses shall be unimpaired by any acts or omissions of Seller
or Seller's employees, agents, officers, directors or shareholders.
10.2.5. Closing Documents. Seller shall deliver to
Buyer all of the closing documents specified in Section 11.2.1, all of which
documents shall be dated as of the Closing Date, duly executed, and in a form
reasonably acceptable to Buyer and to Seller.
10.2.6. Third Party Consents. Subject to Article II,
Seller shall have obtained all the Required Consents.
10.2.7. Estoppel Certificates. Seller shall have
obtained such fee owner's consents as are required for assignment of the Lease
Agreements, and such estoppel certificates with respect to the Lease Agreements
for the leased premises as are reasonably requested by Buyer not less than
thirty (30) days prior to the Closing Date, provided that if Seller is unable
after reasonable good faith effort to obtain execution of such estoppel
certificates, then
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Seller shall have the right to deliver a certificate of Seller with respect to
the information that would otherwise be set forth in a reasonable fee owner's
estoppel certificate.
10.2.8. Settlement of Claims. Seller shall have used
its commercially reasonable best efforts to settle any and all claims against
Seller that would reasonably be expected to materially and aversely affect or
concern the Assets after Closing.
10.2.9. Finality. The FCC Consent shall have become a
Final Order. "Final Order" means an order or action of the Commission that, by
reason of expiration of time or exhaustion of remedies, is no longer subject to
administrative or judicial reconsideration or review.
10.3. Conditions to Seller's Obligation. In addition to
satisfaction of the mutual conditions contained in Section 10.1, the obligation
of Seller to consummate this Agreement is subject to satisfaction of each of the
following conditions:
10.3.1. Representations and Warranties. The
representations and warranties of Buyer to Seller shall be true, complete and
correct in all material respects as of the Closing Date with the same force and
effect as if then made.
10.3.2. Compliance with Conditions. All of the terms,
conditions and covenants to be complied with or performed by Buyer on or before
the Closing Date shall have been timely complied with and performed in all
material respects.
10.3.3. Payment. Buyer shall pay Seller the Total
Consideration as provided in Article III.
10.3.4. Closing Documents. Buyer shall deliver to
Seller all the closing documents specified in Section 11.2.2, all of which
documents shall be dated as of the Closing Date, duly executed, and in a form
reasonably satisfactory to Seller.
ARTICLE XI.
CLOSING
11.1. Closing Date. Except as otherwise provided in this
Section, the Closing hereunder shall occur on a date mutually agreeable to Buyer
and Seller no later than the last day of the month after the fifth business day
after the later of (i) the Commission's action granting its consent to the
Assignment Applications has become a Final Order, or, at the election of the
Buyer, the date of the Commission's action granting its consent and (ii) the
date on which the applicable waiting period under the HSR Act has expired or
been earlier terminated without receipt of any second or subsequent request for
information from the Department of Justice or Federal Trade Commission, or the
time period for further action by such agencies following any such second or
subsequent request for information shall have passed, and there shall have been
neither any commencement of any litigation by any governmental authority of
competent jurisdiction to restrain the consummation of the Transaction, nor any
written notice from such governmental authority of a decision to commence such
litigation, which has not been withdrawn
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or otherwise resolved (the "Closing Date"); provided, however, that in the event
the parties execute the Time Brokerage Agreement, the Closing Date shall not be
earlier than January 4, 1999; provided further, that, in the event the parties
execute the Time Brokerage Agreement, Buyer shall have the option, in its sole
discretion, to delay the Closing for up to six (6) months after the later of
January 4, 1999 and the date that the conditions set forth in clauses (i) and
(ii) above have been satisfied (but in no event more than twelve (12) months
following the date of this Agreement), in which event Buyer shall notify Seller
at least ten (10) business days prior to the date that would otherwise have been
the Closing Date of its exercise of such option to delay the Closing, and shall
thereafter notify Seller at least five (5) business days prior to the date
chosen by Buyer to be the Closing Date. The Closing shall be effective as of
11:59 p.m. on the Closing Date. The Closing shall take place at the offices of
Buyer's counsel in Washington, D.C., commencing at 10:00 a.m. on the Closing
Date. If, as of the Closing Date, any condition precedent described in Article X
has not been satisfied, the party that is entitled to require that such
condition be satisfied may (in its sole discretion) notify the other party of
the absence of such condition precedent at or before the Closing and
simultaneously therewith postpone the Closing until a date ten (10) days after
all such conditions have been (or are able to be) performed, and such postponed
date shall constitute the new Closing Date for all purposes hereunder, provided
that in no event shall either party have the right to postpone the Closing Date
beyond the date that is twelve (12) months following the date of this Agreement.
Each of the parties shall use its reasonable best efforts to obtain any FCC
authority necessary to schedule the Closing Date as contemplated in this
Section.
11.2. Performance at Closing. Except as otherwise provided in
the Time Brokerage Agreement, the following documents shall be executed and
delivered at Closing:
11.2.1. By Seller Seller shall deliver to Buyer:
(a) A certificate executed by Seller attesting to
Seller's compliance with the matters set forth in Sections 10.2.1 and 10.2.2,
together with certified copies of (i) the Certificate of Incorporation of Seller
and (ii) appropriate evidence of Seller's authorization to enter into and
consummate this Agreement.
(b) One or more assignments transferring to Buyer all
of the assignable interests of Seller in and to the Station Licenses, the
Station Applications, and all other licenses, permits, and authorizations issued
by any other governmental authorities that are used in or necessary for the
lawful operation of the Stations.
(c) One or more bills of sale conveying to Buyer the
Station Equipment.
(d) One or more assignments, together with all
Required Consents, assigning to Buyer all of the Assigned Contracts, the Station
Records and the Intangible Property.
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(e) One or more assignments, warranty deeds or other
appropriate instruments conveying to Buyer all rights of Seller in the Real
Property and all consents to such assignments necessary for the legally
enforceable assignment of such interests.
(f) The Covenants.
(g) An opinion of Seller's counsel, in form and
content reasonably acceptable to Buyer's counsel.
(h) The affidavit described in Section 6.16.
11.2.2. By Buyer. Buyer shall deliver to Seller:
(a) A certificate executed by Buyer attesting to
Buyer's compliance with the matters set forth in Sections 10.3.1 and 10.3.2,
together with certified copies of (i) the Certificate of Incorporation of Buyer
and (ii) appropriate evidence of Buyer's authorization to enter into and
consummate this Agreement.
(b) The Total Consideration.
(c) Such assumption agreements and other instruments
and documents as are required to make, confirm, and evidence Buyer's assumption
of and obligation to pay, perform, or discharge Seller's obligations under the
Assumed Liabilities.
(d) An opinion of Buyer's counsel, in form and
content reasonably acceptable to Seller's counsel.
11.2.3. Other Documents and Acts. The parties will
also execute such other documents and perform such other acts, before and after
the Closing Date, as may be reasonably necessary for the complete implementation
and consummation of this Agreement; provided that in no event shall the
execution of such other documents or performance of such other acts impose any
liabilities on either party not contemplated in this Agreement.
ARTICLE XII.
POST-CLOSING OBLIGATIONS
The parties covenant and agree as follows with respect to the
period subsequent to the Closing Date:
12.1. Indemnification.
12.1.1. Buyer's Right to Indemnification. Seller
undertakes and agrees to indemnify, defend by counsel reasonably acceptable to
Buyer, and hold harmless Buyer, its parent, subsidiaries, affiliates, successors
and assigns and their respective directors, officers, employees, shareholders,
representatives and agents (hereinafter referred to collectively as "Buyer
Indemnitees") from and against and in respect of any and all losses, costs,
liabilities, claims, obligations, diminution in value and expenses, including
reasonable attorneys' fees,
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incurred or suffered by a Buyer Indemnitee, except to the extent caused by
Buyer's performance or non-performance under the Time Brokerage Agreement,
arising from (i) the claims of third parties with respect to operation of the
Stations or ownership of the Assets prior to Closing not included in the Assumed
Liabilities or otherwise consented to by Buyer in writing; (ii) a material
breach, misrepresentation, or other violation of any of Seller's covenants,
warranties or representations contained in this Agreement; (iii) all liabilities
of Seller or the Stations not included in the Assumed Liabilities or otherwise
consented to by Buyer in writing; (iv) all liens, charges, or encumbrances on
any of the Assets which are not expressly permitted by this Agreement or
otherwise consented to by Buyer in writing; (v) all Administrative Violations
and alleged Administrative Violations occurring prior to Closing; and (vi) any
breach or default by Seller under any Assigned Contract prior to Closing. The
foregoing indemnity is intended by Seller to cover all acts, suits, proceedings,
claims, demands, assessments, adjustments, diminution in value, costs, and
expenses with respect to any and all of the specific matters in this indemnity
set forth.
12.1.2. Seller's Right to Indemnification. Buyer
undertakes and agrees to indemnify, defend by counsel reasonably acceptable to
Seller, and hold harmless Seller, its parent, subsidiaries, affiliates,
successors and assigns and their respective directors, officers, employees,
shareholders, representatives and agents (hereinafter referred to collectively
as "Seller Indemnitees") against any and all losses, costs, liabilities, claims,
obligations and expenses, including reasonable attorneys' fees, incurred or
suffered by a Seller Indemnitee, except to the extent caused by Seller's
performance under the Time Brokerage Agreement, arising from (i) the operation
of the Stations or ownership of the Assets after Closing; (ii) a breach,
misrepresentation, or other violation of any of Buyer's covenants, warranties
and representations contained in this Agreement; (iii) all liabilities included
in the Assumed Liabilities or otherwise consented to by Buyer in writing; and
(iv) any breach or default by Buyer under any Assigned Contract after Closing.
The foregoing indemnity is intended by Buyer to cover all acts, suits,
proceedings, claims, demands, assessments, adjustments, costs, and expenses with
respect to any and all of the specific matters in this indemnity set forth.
12.1.3. Conduct of Proceedings. If any claim or
proceeding covered by the foregoing agreements to indemnify and hold harmless
shall arise, the party who seeks indemnification (the "Indemnified Party") shall
give written notice thereof to the other party (the "Indemnitor") promptly after
the Indemnified Party learns of the existence of such claim or proceeding;
provided, however, that the Indemnified Party's failure to give the Indemnitor
prompt notice shall not bar the Indemnified Party's right to indemnification
except to the extent that such failure has materially prejudiced the
Indemnitor's ability to defend the claim or proceeding. The Indemnitor shall
have the right to employ counsel reasonably acceptable to the Indemnified Party
to defend against any such claim or proceeding, or to compromise, settle or
otherwise dispose of the same, if the Indemnitor deems it advisable to do so,
all at the expense of the Indemnitor; provided that the Indemnitor shall not
have the right to compromise, settle, or dispose of any such claim or proceeding
unless it has acknowledged in writing its obligation to indemnify the
Indemnified Party as set forth herein and then and periodically thereafter
provides the Indemnified Party with reasonably sufficient evidence of the
ability of the Indemnitor to satisfy any such liabilities. The parties will
fully cooperate in any such action, and shall make
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available to each other any books or records useful for the defense of any such
claim or proceeding. If the Indemnitor does not elect to assume control or
otherwise participate in the defense of any third party claim, it shall be bound
by the results obtained by the Indemnified Party with respect to such claim,
including any settlement, subject to the Indemnitor's right to contest the
underlying obligation to indemnify the Indemnified Party.
12.1.4. Indemnification Not Sole Remedy. The right to
indemnification hereunder shall not be the exclusive remedy of any party in
connection with any breach by another party of its representations, warranties,
or covenants, nor shall such indemnification be deemed to prejudice or operate
as a waiver of any remedy to which any party may otherwise be entitled as a
result of any such breach.
12.1.5. Right of Offset. Each of Buyer and Seller
shall have the right to offset against amounts owing to the other any amounts
owing to such party pursuant to this Article XII.
12.1.6. Conditions of Indemnification.
Notwithstanding any other provision hereof, no Indemnified Party shall be
entitled to make a claim for indemnification against an Indemnitor in respect of
any breach of this Agreement except to the extent that the aggregate amount of
such damages exceeds the amount of Two Hundred Fifty Thousand Dollars
($250,000); provided, however, that once such aggregate has been exceeded, such
Indemnitor shall be liable for the full amount of such damages.
12.2. Post-Closing Access. Each party agrees that it will use
reasonable efforts to cooperate with and make available to the other party,
during normal business hours and upon reasonable notice, all books and records
which are necessary or reasonably useful in connection with any tax inquiry,
audit, investigation or dispute, any litigation brought by any party that is
unrelated to the requesting party or investigation brought by any party that is
unrelated to the requesting party or any other matter requiring any such books
and records, information, or employees for any reasonable business purpose. The
party requesting any such books and records, information or employees shall bear
all of the out-of-pocket costs and expenses reasonably incurred in connection
with providing such books and records, information or employees. All information
received pursuant to this Section 12.2 shall be kept confidential by the party
receiving it. If Buyer or Seller is required by legal process or operation of
law to disclose any confidential information, it shall provide the other party
with prompt written notice of such request so that such other party may seek an
appropriate protective order.
ARTICLE XIII.
DEFAULT AND REMEDIES
13.1. Termination by Seller. This Agreement may be terminated
by Seller and the purchase and sale of the Stations abandoned, if Seller is not
then in material default, upon written notice to Buyer, upon the occurrence of
any of the following:
(a) If on the date that would otherwise be the
Closing Date (subject to the right of Buyer to cure provided in Section 13.3
hereof and to postpone the Closing Date as set
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forth in Section 11.1) any of the conditions precedent to the obligations of
Buyer set forth in this Agreement have not been satisfied in all material
respects or waived in writing by Seller.
(b) If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree or order that would
prevent or make unlawful the Closing.
(c) If the Closing shall not have occurred by the
date that is twelve (12) months after the Contract Date (the "Outside Date") for
reasons other than Seller's default.
(d) For material default hereunder by Buyer, subject
to Section 13.3, or material default by Buyer under the Time Brokerage
Agreement, subject to the applicable cure provisions thereof.
13.2. Termination by Buyer. This Agreement may be terminated
by Buyer and the purchase and sale of the Stations abandoned, if Buyer is not
then in material default, upon written notice to Seller, upon the occurrence of
any of the following:
(a) If on the date that would otherwise be the
Closing Date (subject to the right of Seller to cure provided in Section 13.3
and to postpone the Closing Date as set forth in Section 11.1) any of the
conditions precedent to the obligations of Seller set forth in this Agreement
have not been satisfied in all material respects or waived in writing by Buyer.
(b) If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree or order that would
prevent or make unlawful the Closing.
(c) If the Closing shall not have occurred by the
Outside Date.
(d) For material default hereunder by Seller, subject
to Section 13.3, or material default by Seller under the Time Brokerage
Agreement, subject to the applicable cure provisions thereof.
(e) If Seller elects to neither cure or remove nor
indemnify Buyer for an Objectionable Exception pursuant to Section 9.6.
13.3. Breach and Opportunity to Cure. If either party believes
the other to be in default hereunder, the non-defaulting party shall provide the
defaulting party with notice specifying in reasonable detail the nature of such
default. If such default has not been cured by the earlier of: (i) the Closing
Date, or (ii) within FIFTEEN (15) days after delivery of such notice, then the
party giving such notice may (x) terminate this Agreement, (y) extend the
Closing Date under Section 11.1 (but no such extension shall constitute a waiver
of such non-defaulting party's right to terminate as a result of such default),
and/or (z) exercise the remedies available to such party pursuant to Section
13.4 or 13.5, subject to the right of the other party to contest such action
through appropriate proceedings.
13.4. Seller's Remedies. The parties recognize that if, prior
to Closing, Buyer breaches this Agreement and refuses to perform under the
provisions of this Agreement,
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monetary damages alone would not be adequate to compensate Seller for its
injury. Seller shall therefore be entitled, in addition to any other remedies
that may be available (including but not limited to the provisions of Section
12.1 (relating to Indemnification)), to obtain specific performance of the terms
of this Agreement prior to Closing. If any action is brought by Seller to
enforce this Agreement prior to Closing, Buyer shall waive the defense that
there is an adequate remedy at law. Following the Closing, Seller shall be
entitled, in addition to any other remedies that may be available, to seek
specific performance of the terms of this Agreement if such remedy is available
at equity. In the event Seller elects to terminate this Agreement as a result of
Buyer's default instead of seeking specific performance, Seller shall be
entitled to recover Seller's actual damages.
13.5. Buyer's Remedies. The parties recognize that if, prior
to Closing, Seller breaches this Agreement and refuses to perform under the
provisions of this Agreement, monetary damages alone would not be adequate to
compensate Buyer for its injury. Buyer shall therefore be entitled, in addition
to any other remedies that may be available (including but not limited to the
provisions of Section 12.1 (relating to Indemnification)), to obtain specific
performance of the terms of this Agreement prior to Closing. If any action is
brought by Buyer to enforce this Agreement prior to Closing, Seller shall waive
the defense that there is an adequate remedy at law. Following the Closing,
Buyer shall be entitled, in addition to any other remedies that may be
available, to seek specific performance of the terms of this Agreement if such
remedy is available at equity. In the event Buyer elects to terminate this
Agreement as a result of Seller's default instead of seeking specific
performance, Buyer shall be entitled to recover Buyer's actual damages.
13.6. Designation for Hearing. Either party may terminate this
Agreement upon notice to the other, if, for any reason, the Assignment
Applications are designated for hearing by the Commission; provided, however,
that notice of termination must be given within twenty (20) days after release
of the hearing designation order and that the party giving such notice is not in
default and has otherwise complied with its obligations under this Agreement.
Upon termination pursuant to this Section 13.6, the parties shall be released
and discharged from any further obligation hereunder.
13.7. Legal Actions. If, prior to the Closing Date, any
action, suit, or proceeding shall have been instituted by or before any court or
other governmental authority (other than the Commission) to enjoin, restrain, or
prohibit the consummation of the Transaction, the Closing may be adjourned at
the option of either party, with prior consent of the Commission if necessary,
which consent both parties will use their reasonable best efforts to obtain, for
a period of up to ninety (90) days, and if, at the end of such period, the
action, suit, or proceeding shall not have been favorably resolved, and an order
enjoining, restraining or prohibiting the Closing shall have been entered,
either party may, by written notice to the other, terminate this Agreement;
provided, however, that if such action, suit, or proceeding shall have been
solicited or encouraged by, or instituted as a result of any act or omission of,
Seller or Buyer, then such soliciting, encouraging, or instituting party shall
not have any right of adjournment or termination pursuant to this Section. In
the event of termination pursuant to this Section, the parties shall be released
and discharged from any further obligation hereunder.
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ARTICLE XIV.
DAMAGE
14.1. Risk of Loss. Except to the extent of any loss or damage
caused by acts or omissions of Buyer, its agents, employees, or other persons
while acting pursuant to a contract with Buyer, the risk of loss or damage to
the Assets shall be upon Seller at all times prior to the Closing. In the event
of loss or damage except to the extent caused by acts or omissions of Buyer, its
agents, employees, or other persons while acting pursuant to a contract with
Buyer, Seller shall promptly notify Buyer thereof and shall use commercially
reasonable efforts to repair, replace and restore the lost or damaged property
to its former condition as soon as possible. If such repair, replacement and
restoration of damage not caused by Buyer, its agents, employees, or other
persons while acting pursuant to a contract with Buyer has not been completed
prior to the Closing Date, Buyer may, at its option:
(a) elect to terminate this Agreement, but only if
the failure to repair, replace and restore the lost or damaged property relates
to a material portion of the Assets and continues for a period in excess of
sixty (60) days after the Closing Date without consideration of this Section
14.1;
(b) elect to consummate the Transaction on the
Closing Date in which event Seller shall pay to Buyer the amount necessary to
restore the lost or damaged property to its former condition and against such
obligation shall assign to Buyer all of Seller's rights under any applicable
insurance policies; or
(c) elect to postpone the Closing Date, with prior
consent of the Commission if necessary, which consent both parties will use
their reasonable best efforts to obtain, until a date within fifteen (15)
business days after Seller gives written notice to Buyer of completion of the
repair, replacement and restoration of such lost or damaged property. If, after
the expiration of that extension period, the lost or damaged property has not
been adequately repaired, replaced or a restored, Buyer may terminate this
Agreement, and the parties shall be released and discharged from any further
obligation hereunder.
14.2. Failure of Broadcast Transmission. Seller shall give
prompt written notice to Buyer if either of the following (a "Specified Event")
shall occur: (i) the regular broadcast transmissions of the Stations in the
normal and usual manner are interrupted or discontinued; or (ii) the Stations
are operated at less than their licensed antenna height above average terrain or
at less than ninety percent (90%) of their licensed effective radiated power. If
any Specified Event persists for more than one seventy-two (72) consecutive
hours or one hundred twenty (120) non-consecutive hours (or, in the event of
force majeure or utility failure affecting generally the market served by the
Stations, ninety-six (96) consecutive hours or three hundred thirty-six
non-consecutive hours) during any period of thirty (30) consecutive days, then
Buyer may, at its option: (i) terminate this Agreement by written notice given
to Seller not more than ten (10) days after the expiration of such thirty (30)
day period, or (ii) proceed in the manner set forth in Section 14.3.1. In the
event of termination of this Agreement by Buyer pursuant to this Section, the
parties shall be released and discharged from any further obligation hereunder.
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14.3. Resolution of Disagreements. If the parties are unable
to agree upon the extent of any loss or damage, the cost to repair, replace or
restore any lost or damaged property, the adequacy of any repair, replacement,
or restoration of any lost or damaged property, or any other matter arising
under this Section 14.3, the disagreement shall be referred to a qualified
consulting communications engineer mutually acceptable to Seller and Buyer who
is a member of the Association of Federal Communications Consulting Engineers,
whose decision shall be final, binding upon and non-appealable by the parties,
and whose fees and expenses shall be paid one-half by Seller and one-half by
Buyer.
ARTICLE XV.
GENERAL PROVISIONS
15.1. Brokerage. Each party represents and warrants to the
other that no agent, broker, investment banker, or other person or firm acting
on behalf of such party or any of its affiliates or under the authority of any
of them is or will be entitled to any broker's or finder's fee or any other
commission or similar fee in connection with the Transaction, except as such
party hereby agrees to pay on its own behalf and with respect to which such
party agrees to indemnify the other party pursuant to the terms hereof.
15.2. Expenses. Except as otherwise provided herein, all
expenses involved in the preparation and consummation of this Agreement shall be
borne by the party incurring the same whether or not the Transaction is
consummated. All Commission filing fees for the Assignment Applications and all
filing fees required to be paid under the HSR Act shall be paid by Buyer. All
recording costs for instruments of transfer, and all stamp, sales, use and
transfer taxes shall be paid by Seller.
15.3. Notices. All notices, requests, demands, and other
communications pertaining to this Agreement shall be in writing and shall be
deemed duly given when delivered personally (which shall include delivery by
Federal Express or other nationally recognized, reputable overnight courier
service that issues a receipt or other confirmation of delivery) to the party
for whom such communication is intended, or upon receipt or refusal or failure
to accept receipt if mailed by certified or registered U.S. mail, return receipt
requested, postage prepaid, addressed as follows:
(a) If to Seller:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Arizona Biltmore Hotel
Villa ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ and Missouri
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Counsel to The Broadcast Group, Inc.)
(b) If to Buyer:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
Chancellor Media Corporation/Shamrock
Broadcasting, Inc.
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
(Counsel to Chancellor Media
Corporation/Shamrock Broadcasting, Inc.)
Any party may change its address for notices by notice to the others given
pursuant to this Section. All notices to Seller shall be enclosed in envelopes
that are conspicuously labeled "Personal and Confidential; To Be Opened By
Addressee Only"; provided, however, that the failure to include such
confidentiality notice will not invalidate the notice or constitute breach of
this agreement.
15.4. Attorneys' Fees. If either party initiates any
litigation against the other party involving this Agreement, the prevailing
party in such action shall be entitled to receive reimbursement from the other
party for all reasonable attorneys' fees and other costs and expenses incurred
by the prevailing party in respect of that litigation, including any appeal, and
such reimbursement may be included in the judgment or final order issued in that
proceeding.
15.5. Survival of Representations, Warranties and
Indemnification Rights. The several representations and warranties of the
parties contained herein, and the parties respective indemnification rights
pursuant to Section 12.1, shall survive the Closing for a period of two (2)
years, at which time the same shall expire (except for claims asserted during
such two (2) year period); provided, however, that representations and
warranties with respect to title and authorization shall survive in perpetuity.
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15.6. Exclusive Dealings. For so long as this Agreement
remains in effect, is not subject to termination, and Seller has not notified
Buyer that Buyer is in default hereunder, neither Seller, its officers,
directors, employees, nor any person acting on Seller's behalf, shall, directly
or indirectly, solicit or initiate any offer from, or conduct any negotiations
with, any person other than Buyer or Buyer's assignee(s) concerning the
acquisition of the Stations.
15.7. Waiver. Unless otherwise specifically agreed in writing
to the contrary: (i) the failure of any party at any time to require performance
by any other of any provision of this Agreement shall not affect such party's
right thereafter to enforce the same; (ii) no waiver by any party of any default
by any other shall be valid unless in writing and acknowledged by an authorized
representative of the non-defaulting party, and no such waiver shall be taken or
held to be a waiver by such party of any other preceding or subsequent default;
and (iii) no extension of time granted by any party for the performance of any
obligation or act by any other party shall be deemed to be an extension of time
for the performance of any other obligation or act hereunder.
15.8. Assignment. No party may assign its rights or
obligations hereunder without the prior written consent of the other parties
except: (i) Buyer may assign all or a portion of its rights and obligations to a
corporation, partnership or other business entity that is wholly owned by
Buyer's ultimate parent entity, provided that such assignment shall not delay
the Closing Date for more than thirty (30) days, and provided further that such
assignee shall be at least as qualified as Buyer to enter into and perform all
of Buyer's obligations under this Agreement, as reasonably determined by
Seller's FCC counsel, and (ii) Buyer may make a collateral assignment of its
rights under this Agreement to any lender that provides funds to Buyer for the
acquisition or operation of the Stations. Subject to the foregoing, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by
the parties hereto and their respective successors and assignees.
15.9. Entire Agreement. This Agreement and the Exhibits and
Schedules hereto (which are incorporated by reference herein) constitute the
entire agreement between the parties with respect to the subject matter hereof
and referenced herein, supersede and terminate any prior agreements between the
parties (written or oral). This Agreement may not be altered or amended except
by an instrument in writing signed by the party against whom enforcement of any
such change is sought.
15.10. Counterparts. This Agreement may be signed in any
number of counterparts with the same effect as if the signatures on each such
counterpart were on the same instrument.
15.11. Construction. The Section headings of this Agreement
are for convenience only and in no way modify, interpret or construe the meaning
of specific provisions of the Agreement. As used herein, the neuter gender shall
also denote the masculine and feminine, and the masculine gender shall also
denote the neuter and feminine, where the context so permits.
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15.12. Schedules and Exhibits. The Schedules and Exhibits to
this Agreement are a material part of this Agreement.
15.13. Severability. If any one or more of the provisions
contained in this Agreement should be found invalid, illegal or unenforceable in
any respect, the validity, legality, and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby. Any illegal or unenforceable term shall be deemed to be void and of no
force and effect only to the minimum extent necessary to bring such term within
the provisions of applicable law and such term, as so modified, and the balance
of this Agreement shall then be fully enforceable.
15.14. Choice of Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Arizona, without regard to
the choice of law rules utilized in that jurisdiction.
15.15. Counsel. Each party has been represented by its own
counsel in connection with the negotiation and preparation of this Agreement
and, consequently, each party hereby waives the application of any rule of law
that would otherwise be applicable in connection with the interpretation of this
Agreement, including but not limited to any rule of law to the effect that any
provision of this Agreement shall be interpreted or construed against the party
whose counsel drafted that provision.
15.16. Public Statements. Prior to the Closing Date, neither
Seller nor Buyer shall, without the prior written approval of the other party,
make any press release or other public announcement concerning the transactions
contemplated by this Agreement except (i) Seller and Buyer shall issue a
mutually agreeable public announcement promptly after the Application Filing
Date; and (ii) to the extent that either party shall be so obligated by law, in
which case the other party shall be so advised and the parties shall use their
best efforts to cause a mutually agreeable release or announcement to be issued.
Prior to the Application Filing Date, or if Buyer terminates this Agreement,
Buyer shall keep confidential and not disclose to any other person or entity (i)
the existence of this Agreement or (ii) any "Review Material" or other
information furnished to Buyer or to Buyer's representatives, certified public
accounts, attorneys, bankers or other financial representatives, directors,
officers, employees, and/or agents ("Representatives"); provided, however, that
(a) such information may be disclosed to Buyer's Representatives who have a need
to know such information for purposes of evaluating the proposed transaction if
such Representatives are informed in writing of the confidentiality undertakings
contained herein and agree to be bound thereby; (b) such information may be
disclosed as and to the extent required by law; and (c) any disclosure of such
information to which Seller consents in writing may be made. "Review Material"
shall include (i) any information relating to the Assets that is disclosed by
Seller or any of Seller's agents, including, without limitation, Seller's
attorneys and accountants, to Buyer or any of Buyer's Representatives, (ii) all
comments, analyses, compilations, studies or other materials prepared by Buyer
or Buyer's Representatives that are based, in whole or in part, on such
information disclosed by Seller or any of Seller's agents, and (iii) all
reports, test results, evaluations, assessments, surveys and inspection
materials relating to the Assets that are prepared by or for
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Buyer in connection with its investigation or evaluation of the Assets. Upon any
termination of this Agreement, Buyer will deliver to Seller the Review Material
and Buyer will also cause all copies and summaries or synopses thereof to be
returned to Seller or destroyed. Such destruction shall be certified in writing
by Buyer to Seller. Seller shall have the right to obtain injunctive relief to
prevent any breach of the obligations set forth in this Section 15.16, and to
▇▇▇ for damages resulting from any such breach. Buyer's obligations with respect
to Review Material under this Section 15.16 shall survive the termination of
this Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed by a respective duly authorized officer as of the date
first written above.
SELLER:
THE BROADCAST GROUP, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
SELLER'S GUARANTOR:
THE ▇▇▇▇▇▇ CO.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
Executive Vice-President
BUYER:
CHANCELLOR MEDIA CORPORATION/
SHAMROCK BROADCASTING, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President-Strategic Development
BUYER'S GUARANTOR:
CHANCELLOR MEDIA CORPORATION OF LOS
ANGELES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President-Strategic Development
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