WBBQ AGREEMENT OF SALE
Between
MEDICAL COLLEGE OF GEORGIA FOUNDATION
And
Cumulus Licensing Corporation
And
Cumulus Broadcasting, Inc.
-------------------------------------------
Dated: September 4, 1997
TABLE OF CONTENTS
Page
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1. ASSETS SOLD AND PURCHASED............................................ 2
2. PURCHASE PRICE; DEPOSIT; ASSUMPTION OF LIABILITIES................... 4
(a) Purchase Price................................................. 4
(b) Deposit........................................................ 5
(c) Assumption of Liabilities...................................... 6
3. PAYMENT OF CERTAIN ITEMS............................................. 6
4. SELLER'S REPRESENTATIONS AND WARRANTIES.............................. 8
(a) (i) Organization and Authority.......................... 8
(ii) No Insolvency....................................... 9
(iii) Taxes............................................... 10
(iv) FCC Filings......................................... 10
(v) Representations and Warranties...................... 10
(b) (i) Compliance with Laws................................ 11
(ii) Tangible Assets..................................... 12
(iii) Condition of Equipment.............................. 12
(iv) FCC Licenses........................................ 13
(v) Public Inspection Files............................. 14
(vi) Financial Statements................................ 14
(vii) Contracts........................................... 14
(viii) No Insolvency....................................... 15
(ix) Union Activity...................................... 16
(x) Employee Benefits................................... 16
(xi) Adverse Conditions.................................. 17
(xii) Transmitter and Studio Sites........................ 17
(xiii) Environmental Matters............................... 18
(xiv) Taxes............................................... 20
(xv) Insurance........................................... 20
(xvi) All Necessary Assets................................ 21
(xvii) Copyrights and Service Marks........................ 21
(xviii) FCC Filings......................................... 22
(xix) Conduct of Business................................. 22
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5. PURCHASER'S REPRESENTATIONS AND WARRANTIES........................... 22
(a) Organization................................................... 22
(b) Due Authorization.............................................. 23
(c) Binding Agreement.............................................. 23
(d) No Conflicts................................................... 23
(e) FCC Approval................................................... 23
(f) No Conflicting Agreements...................................... 23
(g) No Litigation.................................................. 24
(h) Representations and Warranties................................. 24
6. OPERATIONS PENDING CLOSING........................................... 24
(a) Access to Stations............................................. 24
(b) Compliance with Laws........................................... 25
(c) Maintenance of Stations Assets................................. 25
(d) Conduct of Business............................................ 25
(e) Salary Increases............................................... 26
(f) Required Consents.............................................. 26
(g) Books and Records.............................................. 26
(h) Contracts...................................................... 27
7. PURCHASER'S PERFORMANCE.............................................. 27
8. SELLER'S PERFORMANCE................................................. 30
9. FCC APPROVAL AND APPLICATION......................................... 32
10. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ FILING............................................. 33
11. DATE, NOTICE AND PLACE OF CLOSING.................................... 33
12. CONTROL OF STATIONS.................................................. 34
13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES........................... 34
14. RIGHTS OF INDEMNIFICATION; DEFAULT................................... 34
15. INDEMNIFICATION ESCROW............................................... 39
16. ALTERNATIVE DISPUTE RESOLUTION....................................... 40
17. BROKER'S FEE......................................................... 44
18. SELLER'S PERFORMANCE AT CLOSING...................................... 44
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19. PURCHASER'S PERFORMANCE AT CLOSING................................... 46
20. EVENTS OF TERMINATION; DISBURSEMENT OF DEPOSIT....................... 47
(a) Failure to Close without Fault................................. 47
(b) Disbursement of Deposit to Seller.............................. 48
(c) Return of Deposit to Purchaser................................. 49
(d) Mutual Agreement............................................... 50
21. SPECIFIC PERFORMANCE................................................. 50
22. BULK SALES LAW....................................................... 51
23. ASSET ACQUISITION STATEMENT.......................................... 51
24. EXHIBITS AND SCHEDULES............................................... 51
25. ASSIGNMENTS; SUCCESSORS AND ASSIGNS.................................. 51
26. CONSTRUCTION......................................................... 51
27. COUNTERPARTS......................................................... 51
28. NOTICES.............................................................. 52
29. ADDITIONAL DOCUMENTS................................................. 53
30. PARAGRAPH HEADINGS................................................... 53
31. ENTIRE AGREEMENT..................................................... 53
32. EXPENSES............................................................. 54
33. ATTORNEYS' FEES...................................................... 54
34. CONFIDENTIALITY...................................................... 54
35. TIME BROKERAGE AGREEMENT............................................. 55
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WBBQ AGREEMENT OF SALE
THIS WBBQ AGREEMENT OF SALE (this "Agreement"), made this day of , 1997,
by and between MEDICAL COLLEGE OF GEORGIA FOUNDATION, a Georgia not for profit
corporation ("Seller"), and ______________________, a ______________________
corporation ("Purchaser").
WITNESSETH:
WHEREAS, Savannah Valley Broadcasting Company, a Georgia corporation
("Grantor"), is the licensee and operator of Radio Broadcast Stations WBBQ AM
and FM, Augusta, Georgia ("Stations"), holding valid authorizations for the
operation thereof from the Federal Communications Commission ("FCC");
WHEREAS, Grantor wishes to make a charitable contribution to Seller of the
Stations Assets (as hereinafter defined) pursuant to the Agreement to Transfer
WBBQ Assets dated _________________, 1997, a copy of which is attached as
Exhibit A hereto;
WHEREAS, Seller, upon transfer of the Station Assets from Grantor, wishes
to sell and Purchaser wishes to acquire the Stations Assets, in order that the
proceeds from said sale may be added to the corpus of Seller's endowment; and
WHEREAS, Grantor and Purchaser desire to enter into a time brokerage
agreement ("TBA"), consistent with FCC rules and regulations, under which
Purchaser will operate the Stations for the period commencing with the effective
date of the TBA ("TBA Commencement Date") to the Closing Date (as hereinafter
defined).
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, Seller and Purchaser hereby agree as
follows:
1. ASSETS SOLD AND PURCHASED.
On the Closing Date, Seller will sell, transfer, assign and convey to
Purchaser, by appropriate instruments, and Purchaser will purchase,
subject to the terms and conditions hereinafter set forth, the following
assets and properties (the "Stations Assets"), free and clear of all
liens, claims, encumbrances and rights of others, except as otherwise set
forth herein:
(a) The FCC licenses and authorizations and all other licenses, permits
and authorizations issued by any other federal, state or local
governmental agency or authority for the operation of the Stations,
including but not limited to those listed on Exhibit B hereto, and
all other licenses, permits and authorizations now or hereafter
obtained in connection with the operation of the Stations.
(b) All fixed, tangible and intangible assets used and usable in the
operation of the Stations, including, but not limited to, those
assets identified on Exhibit C hereto, subject to any changes
thereto made in the ordinary course of business between the date
hereof and the Closing Date.
(c) The contracts, leases and agreements listed and described on Exhibit
D hereto which are to be in effect on the Closing Date, except those
which may have been unilaterally canceled by a party other than
Seller, provided that legal rights, if any, accruing to Seller by
virtue of any such unilateral cancellation by a party other than
Seller shall be assigned by Seller to Purchaser. To the extent that
the assignment of any contract listed on
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Exhibit D may require the consent of a third party, Seller shall
exercise its best efforts to secure such consent. In the event that
Seller is unable to secure such consent, Purchaser shall not be
required to assume performance pursuant to said contract.
(d) The rights and obligations under the agreements, pursuant to which
reimbursement is or was to be made in whole or in part in services,
merchandise or other non-cash considerations ("Trade Deals"), listed
and described on Exhibit E hereto, subject to any changes thereto
made in the ordinary course of business between the date hereof and
the Closing Date.
(e) The call letters "WBBQ" and all copyrights, trademarks, trade names,
logos, jingles, service marks, slogans and promotional materials
used in connection with the Stations, and any registrations or
applications for registration of any of the same, including but not
limited to those copyrights, trademarks, trade names and service
marks listed and described on Exhibit F hereto.
(f) Such files, records and logs pertaining to the operation of the
Stations as are required to be maintained by federal, state or local
law or regulation and as Purchaser may reasonably require; provided,
however, that Purchaser is not purchasing and will not be entitled
to receive Seller's corporate charter, corporate minute books,
original accounting journals, books of accounts, ledgers, tax
returns or other confidential books and records not directly
relating to the operation of the Stations.
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(g) The real property, the improvements thereon, fixtures and all
easements and rights for the benefit of such property ("Real
Property") as described on Exhibit G hereto, subject only to such
easements, reservations, servitudes and other non-monetary
encumbrances as described on Exhibit G and liens for taxes not yet
due and payable.
(h) The goodwill and all other intangible assets used in the operation
of the Stations.
Purchaser acknowledges that the WBBQ-FM transmitter site and tower ("FM
Tower Site") is owned by Grantor. On the Closing Date, Purchaser shall
enter into an agreement with Grantor for the lease of the FM Tower Site,
in the form of Exhibit H hereto ("Tower Lease Agreement"). This Agreement
is limited to the assets herein described, and Purchaser is not purchasing
cash, cash equivalents, securities, accounts receivable for the sale of
commercial time or insurance policies, all of which shall be and remain
the exclusive property of Seller or Grantor, as the case may be, free and
clear of any claim from Purchaser whatsoever.
2. PURCHASE PRICE; DEPOSIT; ASSUMPTION OF LIABILITIES.
(a) Purchase Price.
The Purchase Price for the Stations Assets shall be ________________
Dollars ($__________). The Purchase Price for the Stations Assets
shall be payable in full to Seller by wire transfer of immediately
available funds on the Closing Date. The Purchase Price shall
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be allocated among the Stations Assets according to their current
fair market values, as agreed to by Seller and Purchaser and as set
forth in Exhibit I.
(b) Deposit.
(i) Upon execution of this Agreement, Purchaser, by bank wire
transfer of immediately available funds, shall deposit in
escrow with _______________________, acting as escrow agent on
the parties' behalf ("Escrow Agent"), a deposit ("Deposit") in
the amount of _________ Dollars ($____________), which
represents ten percent (10%) of the Purchase Price excluding
the value of the Accounts Receivable. The Deposit shall be
security for the consummation of the sale of the Stations
Assets and shall be held in escrow pursuant to a separate
escrow agreement ("Escrow Agreement") entered into between
Seller, Purchaser and the Escrow Agent in the form of Exhibit
J hereto. In the event of any conflict between this Agreement
and the Escrow Agreement, the terms of the Escrow Agreement
shall control. The Deposit shall be invested and disbursed in
accordance with the terms of the Escrow Agreement.
(ii) Subject to Section 20 of this Agreement and the Escrow
Agreement, the Deposit, together with any interest earned
thereon, shall be credited toward partial payment of the
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Purchase Price on the Closing Date, disbursed to Seller, or
returned to Purchaser upon termination of this Agreement.
(c) Assumption of Liabilities.
The Stations Assets shall be sold and conveyed to Purchaser free and
clear of all mortgages, liens, deeds of trust, security interests,
pledges, restrictions, prior assignments, charges, claims, defects
in title and encumbrances of any kind or type whatsoever except the
following: (i) liens for taxes not yet due and payable; and (ii) the
obligations of Seller for periods from and after the Closing Date
under leases and contracts assigned to Purchaser that are described
in Sections 1(c) and 1(d) hereof, which, subject to all necessary
consents, Purchaser hereby expressly agrees to assume.
3. PAYMENT OF CERTAIN ITEMS.
(a) All FCC filing and grant fees, if any, shall be paid by Purchaser.
(b) Subject to any accounting made pursuant to the TBA referred to in
Section 35 hereof, within ninety (90) days after closing, an
accounting shall be made as follows:
(i) All prepaid income, prepaid expenses, prepayments on any
written contracts assumed by Purchaser hereunder, accrued
income and accrued expenses of the Stations as of the end of
the day prior to the Closing Date shall, except as otherwise
expressly provided herein, be adjusted and allocated between
Seller and Purchaser to reflect the principle that all
expenses
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and income arising from the operation of the Stations before
12:01 a.m. on the Closing Date shall be for the account of
Seller, and all expenses and income arising from the operation
of the Stations from and after 12:01 a.m. on the Closing Date
shall be for the account of Purchaser.
(ii) As soon as practicable following the Closing Date, and in any
event within ninety (90) days thereafter, or at such other
time as the parties mutually agree, Purchaser shall deliver to
Seller Purchaser's certificate setting forth as of the Closing
Date all adjustments to be made as provided in (i) above.
Purchaser shall provide Seller or Seller's representatives
access to copies of all books and records as Seller may
reasonably request for purposes of verifying such adjustments.
Purchaser's certificate shall be final and conclusive unless
objected to by Seller in writing within thirty (30) days after
delivery. Seller and Purchaser shall attempt jointly to reach
agreement as to the amount of the adjustments to be made
hereunder within sixty (60) days after receipt by Purchaser of
such written objection by Seller, which agreement, if
achieved, shall be binding upon all parties to this Agreement
and not subject to dispute or review.
(iii) In the event of a disagreement between Purchaser and Seller
with respect to the accounting to be made hereunder, the
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parties agree that a public accounting firm chosen jointly by
Purchaser and Seller shall be the final arbiter of such
disagreement. The cost of such accounting firm shall be shared
equally by the parties.
(iv) Any amounts due Purchaser or Seller for the adjustments
provided for herein shall be paid within ten (10) calendar
days after final determination.
(c) Filing and recordation fees and any other fees incurred in
connection with the transfer of title to the property being conveyed
hereunder, and any applicable transfer, sales or use taxes, and all
expenses incurred in connection with such filing or recordation,
shall be borne entirely by Purchaser.
4. SELLER'S REPRESENTATIONS AND WARRANTIES.
(a) Seller covenants, represents and warrants the following, which
representations and warranties shall be true and correct as of the
Closing Date as if expressly restated on said date.
(i) Organization and Authority. Medical College of Georgia
Foundation is a not for profit corporation duly organized,
validly existing and in good standing under the laws of the
State of Georgia, has full power and authority to own its
properties, and has full power and authority to enter into
this Agreement and to consummate the transactions contemplated
herein. All required corporate action
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with respect to Seller has been taken to approve this
Agreement and the transactions contemplated hereby. The making
and performance of this Agreement by Seller does not and will
not violate any provisions of the organizational documents of
Seller, or, subject to Seller obtaining those consents set
forth on Exhibit K hereto, breach or constitute a default
under any agreement, instrument, order, judgment or decree to
which Seller is a party or by which it is bound or violate any
law or regulation applicable to Seller or the Stations. This
Agreement has been duly executed and delivered by Seller and
constitutes the valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms.
(ii) No Insolvency.
No insolvency proceedings of any character, including, without
limitation, bankruptcy, receivership, reorganization,
composition or arrangement with creditors, voluntary or
involuntary, affecting Seller or any of its respective assets
or properties are pending or, to the best of Seller's
knowledge, overtly threatened, and Seller has made no
assignment for the benefit of creditors, nor taken any action
with a view to, or which would constitute the basis for, the
institution of any such insolvency proceedings.
(iii) Taxes.
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Seller has, and as of the Closing Date will have, paid and
discharged all taxes, assessments, excises and other levies
which are due, including any such taxes, assessments, excises
and levies which, if due and not paid, would interfere with
Purchaser's enjoyment or use of the Stations Assets, excepting
such taxes, assessments and other levies which will not be due
until or after the Closing Date and which are to be prorated
between Seller and Purchaser pursuant to the provisions of
Section 3(b) hereof.
(iv) FCC Filings.
None of the information contained in the representations and
warranties of Seller set forth in any filing made by it with
the FCC with respect to the transfer of the Stations or the
assignment of the licenses therefor contains or will contain
any untrue statement of a material fact or omits or will omit
any material fact.
(v) Representations and Warranties.
The representations and warranties made by Seller in this
Agreement are not, and will not be on the Closing Date, false
or misleading individually or in the aggregate with respect to
any material fact and will not omit to state a material fact
required to
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be stated therein when necessary in order to make the
statements contained therein not materially false or
misleading.
(b) Based upon the covenants, representations and warranties made to
Seller by Grantor as set forth in Exhibit A hereto, Seller
covenants, represents and warrants the following, which
representations and warranties shall be true and correct as of the
Closing Date as if expressly restated on said date.
(i) Compliance with Laws.
The operation of the Stations is now, and on the Closing Date
will be, in compliance in all material respects with all
applicable laws, rules and regulations of all federal, state
and local authorities or agencies, and there is not now, nor
on the Closing Date will there be, any judgment outstanding or
litigation or proceeding pending or, to the best of Seller's
knowledge, overtly threatened which affects the title or
interest of Seller in or to any license or any other property
or asset to be sold hereunder, or its power or right to sell,
convey, transfer or assign the same to Purchaser as
hereinafter provided, or which would prevent or affect the
operation and use of the same by Purchaser, as presently
operated and used by Grantor. Except for the consent of the
FCC, the consent contemplated by Section 10 hereof, and any
such consent set forth on Exhibit K hereto, no authorizations,
approvals or consents from any governmental or
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regulatory authorities or agencies are necessary to permit
Seller to execute and deliver this Agreement and to perform
its obligations hereunder.
(ii) Tangible Assets.
Exhibit C attached hereto represents a true, complete and
accurate list of all tangible assets (other than the Real
Property) used and usable in the business and/or operation of
the Stations. Subject to Grantor's right to dispose of any
properties, equipment and assets in the ordinary course of
business, on the Closing Date Seller will convey to Purchaser
good and valid title to such properties, equipment and assets
and any other properties, equipment and assets acquired by it
subsequent to the date hereof and used or usable in the
business or operation of the Stations, free of any and all
liens, charges, assessments, taxes, mortgages, pledges,
conditional sales agreements, security agreements,
encumbrances and rights of third parties of any kind
whatsoever.
(iii) Condition of Equipment.
Transmission and studio equipment and other equipment
(mechanical and electrical) to be transferred to Purchaser
hereunder is, and will be as of the Closing Date, in good
repair and working condition with no material defects therein,
fit for the
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purposes for which they are being utilized and in material
compliance with all current FCC requirements and all other
applicable laws and regulations.
(iv) FCC Licenses.
The FCC licenses, permits and authorizations to be assigned to
Purchaser are, and will be as of the Closing Date, valid and
existing authorizations for the purpose of operating the
Stations, issued by the FCC under the Communications Act of
1934, as amended, and in accordance with the Rules and
Regulations of the FCC, and applications, reports and other
disclosures required by the FCC with respect to the Stations
have been, and will be as of the Closing Date, duly filed.
Grantor is an FCC licensee in good standing and, as of the
date hereof, there are no proceedings or complaints pending
or, to the best of Seller's knowledge, overtly threatened at
the FCC against Grantor with respect to the Stations and
Seller is not aware of any facts or circumstances that could
reasonably provide a basis for any such proceedings or
complaints. Grantor holds all licenses and governmental
authorizations necessary to enable the Grantor to conduct its
business of operating the Stations as presently conducted.
(v) Public Inspection Files.
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The public inspection files for the Stations are in material
compliance with the regulations of the FCC relating thereto.
(vi) Financial Statements.
The 1995, 1996 and January 1 to May 31, 1997 operating and
financial statements of the Stations provided to Purchaser
accurately reflect the financial condition and operations of
the Stations for the periods covered and said financial
statements are stated in accordance with generally accepted
accounting principles consistently applied. There are no
material liabilities associated with the Stations that are not
accurately reflected in such operating and financial
statements.
(vii) Contracts.
True and complete copies of all contracts, leases,
understandings and/or agreements and all modifications,
amendments and renewals thereof listed on Exhibits D and E
have been furnished to Purchaser and represent all contracts,
leases, understandings and/or agreements of Grantor in
conjunction with the operation of the Stations except
contracts for the sale of air time. All material provisions of
the contracts, understandings, leases and agreements listed on
said Exhibits D and E and all other contracts, leases,
understandings and agreements which may be effectuated between
the date hereof
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and the Closing Date relating to the operations of the
Stations have been complied with, and will have been complied
with, in all material respects as of the Closing Date, and no
material default in respect to any duties or obligations
required according to the terms of such contracts, leases,
understandings and agreements are or will have occurred.
Exhibit E specifies the trade balance of all contracts listed
thereon as of _______, 1997. All contracts and other
agreements listed on Exhibits D and E are in full force and
effect and are valid and, to the best of Seller's knowledge,
enforceable in accordance with their respective terms.
(viii) No Insolvency.
No insolvency proceedings of any character, including, without
limitation, bankruptcy, receivership, reorganization,
composition or arrangement with creditors, voluntary or
involuntary, affecting Grantor or any of its respective assets
or properties are pending or, to the best of Seller's
knowledge, threatened, and Grantor has made no assignment for
the benefit of creditors, nor taken any action with a view to,
or which would constitute the basis for, the institution of
any such insolvency proceedings.
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(ix) Union Activity.
The employees of Grantor are not presently represented by and
are not seeking representation through any union or other
collective bargaining agent.
(x) Employee Benefits.
Purchaser will have no obligation or liability due to or
because of any past service liability, vested benefits,
retirement plan insolvencies or other obligation under local,
state or federal law (including the Employee Retirement Income
Security Act of 1974) resulting from the purchase of the
Stations or from former employees of Grantor becoming
employees of Purchaser. Nothing contained in this Agreement
shall confer upon any employee of Grantor any right with
respect to continued employment by Purchaser, nor shall
anything herein interfere with any right Purchaser may have
after the Closing Date to (i) terminate the employment of any
of the employees at any time, with or without cause, or (ii)
establish or modify any of the terms or conditions of
employment of the employees in the exercise of Purchaser's
independent business judgement.
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(xi) Adverse Conditions.
Seller does not know of any condition, including, but not
limited to, pending or threatened litigation, which may
materially and adversely affect the Stations' business
prospects, other than changes in the ordinary course of
business.
(xii) Transmitter and Studio Sites.
The Stations' transmitter and studio sites are not the subject
of any official complaint, notice of noncompliance or notice
of violation of any applicable zoning ordinance or building
code or regulation of the Federal Aviation Administration,
Federal Occupational Safety and Health Administration or
Federal Environmental Protection Agency, or regulations of
local or state agencies or departments and no such violation
is known to exist, and there is no zoning ordinance or
building code or use or occupancy restriction or condemnation
proceeding pending or, to the best of Seller's knowledge,
threatened, which would include or impair the use of such real
property or the improvements thereon by Purchaser, in the
manner and for the purposes for which they are presently used.
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(xiii) Environmental Matters.
For the purposes of this paragraph the following terms shall
have the following meanings: (1) the term "Hazardous Material"
shall mean any material, substance or item that, whether by
its nature or use, is subject to regulation as of the date of
this Agreement under any Environmental Requirement, including
but not limited to Polychlorinated Biphenyls, petroleum,
pesticides, herbicides, asbestos and underground storage
tanks; (2) the term "Environmental Requirements" shall
collectively mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Sec. 9601 et
seq.), Super Fund Amendments and Reauthorization Act of 1986,
the Hazardous Materials Transportation Act (49 U.S.C. Sec.
1801 et seq.), the Resource Conservation and Recovery Act (42
U.S.C. Sec. 6901 et seq.), the Toxic Substances Control Act
(15 U.S.C. Sec. 2601 et seq.), the Clean Air Act (42 U.S.C.
Sec. 7401 et seq.) and the Federal Water Pollution Control Act
(33 U.S.C. Sec. 1251 et seq.), all as presently in effect, any
regulation pursuant thereto presently in effect, or any other
law, ordinance, rule, regulation, order or directive in effect
as of the date of this Agreement addressing environmental,
health or safety issues of or by any Governmental Authority,
and (3) the term "Governmental
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Authority" shall mean the federal government, any state or
other political subdivision thereof, exercising executive,
legislative, judicial, regulatory or administrative functions.
Seller hereby represents and warrants to Purchaser that, to
the best of the knowledge of Birnied ▇▇▇▇▇▇, the President of
Grantor, (1) no Hazardous Material in reportable quantities
are currently located at, on, in or under the Stations or the
Stations Assets, (2) no Hazardous Material in reportable
quantities have been or are currently located at, in, on or
under the Stations or the Stations Assets in a manner which
violates any Environmental Requirement, (3) no releasing,
emitting, discharging, leaching, dumping or disposing of any
Hazardous Material from the Stations or the Stations Assets
onto or into any other property or from any other property
onto or into the Stations or the Stations Assets has occurred
or is occurring in reportable quantities; and (4) Grantor has
received no notice of violation, lien, complaint, suit, order
or other notice with respect to the environmental condition of
any of the Stations or the Stations Assets, nor has any such
notice been issued during Seller's ownership of the Stations
or the Stations Assets which has not been fully satisfied and
complied with in a timely fashion as to
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bring the Stations and the Stations Assets into full
compliance with all Environmental Requirements.
(xiv) Taxes.
Seller has, and as of the Closing Date will have, paid and
discharged all taxes, assessments, excises and other levies
which are due, including any such taxes, assessments, excises
and levies which, if due and not paid, would interfere with
Purchaser's enjoyment or use of the Stations Assets, excepting
such taxes, assessments and other levies which will not be due
until or after the Closing Date and which are to be prorated
between Seller and Purchaser pursuant to the provisions of
Section 3(b) hereof.
(xv) Insurance.
Grantor now has in force adequate fire and other risk
insurance covering the full replacement value of the Real
Property and tangible personal property to be transferred
herein and shall cause such insurance to be maintained in full
force until the Closing Date. Grantor also shall maintain in
full force until the Closing Date adequate general public
liability insurance in amounts consistent with broadcasting
industry standards for similar stations. None of the assets to
be conveyed herein has been adversely affected in any way as a
result of fire, explosion,
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earthquake, accident, fraud, rain, storm, drought, riot, Act
of God or public enemy or any other casualty, whether or not
covered by insurance.
(xvi) All Necessary Assets.
The Stations Assets described in Section 1 and set forth in
the Exhibits hereto, together with the Real Property and the
Tower Lease Agreement for the FM Tower Site, constitute all of
the assets, property and business owned, used or needed by
Grantor or in which Grantor has any interest (other than the
Excluded Assets) in carrying on the business and operation of
the Stations as presently conducted. Other than the Excluded
Assets, there are no other rights, assets or property owned,
used or needed by Grantor in connection with the Stations or
needed in the operation thereof.
(xvii) Copyrights and Service Marks.
Except as set forth on Exhibit F hereto, Grantor does not own
nor is possessed of or is licensed under any copyrights,
patents, patent applications, service marks, trademarks, trade
names, logos, emblems or slogans used in the conduct of the
business of the Stations as now operated. There is no claim
pending or threatened against Seller with respect to the
alleged infringement of any such copyright, patent, patent
application,
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service ▇▇▇▇, trademark, trade name, logo, emblem or slogan
owned by another, and to the best of Seller's knowledge, there
is not any basis for any such claim.
(xviii) FCC Filings.
None of the information contained in the representations and
warranties of Grantor set forth in any filing made by it with
the FCC with respect to the transfer of the Stations or the
assignment of the licenses therefor contains or will contain
any untrue statement of a material fact or omits or will omit
any material fact.
(xix) Conduct of Business.
Since July 1, 1997, Grantor has conducted the business of the
Stations in the ordinary course.
5. PURCHASER'S REPRESENTATIONS AND WARRANTIES.
Purchaser represents and warrants the following, which representations and
warranties shall be true and correct as of the Closing Date as if
expressly restated on said date.
(a) Organization.
Purchaser is now, and will be as of the Closing Date, a corporation,
duly organized, validly existing and in good standing under the laws
of the State of __________, and qualified to do business in the
State of Georgia and the State of South Carolina.
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(b) Due Authorization.
The execution, delivery and consummation of this Agreement have been
duly authorized by the Board of Directors of Purchaser and no
further corporate authorization, approval or consent is required.
(c) Binding Agreement.
This Agreement constitutes the legal, valid and binding obligation
of Purchaser, enforceable against Purchaser in accordance with and
subject to its terms.
(d) No Conflicts.
Subject to the FCC's approval of this transaction, the execution,
delivery and consummation of this Agreement do not and will not
conflict with any of the provisions of Purchaser's organizational
documents or violate any provisions of law.
(e) FCC Approval.
Purchaser knows of no reason why the FCC (i) would not approve an
application for the assignment of the Stations' licenses to it or
(ii) would require any type of waiver before approving an
application for the assignment of the Stations' licenses to it.
(f) No Conflicting Agreements.
There will not be as of the Closing Date any agreements, contracts,
understandings or commitments which will restrain or inhibit the
right of Purchaser to enter into this Agreement, make any
representations or
-23-
warranties herein and/or consummate any of the transactions
contemplated herein.
(g) No Litigation.
There are no suits, legal proceedings or investigations of any
nature pending or, to Purchaser's knowledge, threatened against or
affecting it that would affect Purchaser's ability to carry out the
transactions contemplated by this Agreement.
(h) Representations and Warranties.
The representations and warranties made by Purchaser in this
Agreement are true and correct and are not, and will not be on the
Closing Date, false or misleading individually or in the aggregate
with respect to any material fact and do not and will not omit to
state a material fact required to be stated therein when necessary
in order to make the statements contained herein not materially
false or misleading.
6. OPERATIONS PENDING CLOSING.
Pending the closing hereunder and subject to the TBA referred to in
Section 35 hereof, Seller shall itself or cause Grantor:
(a) Access to Stations.
Give to Purchaser and its authorized representatives access during
normal business hours to the properties, books and records of the
Stations and the Stations Assets, and furnish Purchaser with such
information concerning the same as Purchaser may reasonably request;
provided, however, that
-24-
Purchaser may not visit the Stations without the consent of Grantor,
nor may Purchaser contact any current employee of Grantor without
the consent of Grantor.
(b) Compliance with Laws.
Comply with all material and applicable federal, state and local
laws, ordinances and regulations, including, but not limited to, the
Communications Act of 1934 and the Rules and Regulations of the FCC.
(c) Maintenance of Stations Assets.
Keep, at is own expense, in a normal state of repair and operating
efficiency the Stations Assets. On the Closing Date, the operation
of the Stations and the technical equipment shall be in compliance
with the FCC licenses and the FCC's Rules and Regulations and all
other applicable laws and regulations and no citations, complaints
or petitions shall be pending or, to Seller's knowledge, threatened
against Seller or Grantor.
(d) Conduct of Business.
Make all reasonable efforts to maintain the business reputation and
financial condition of the Stations and preserve their customers,
employees and suppliers. During the period from the date of this
Agreement to the Closing Date, the business of Grantor shall be
operated in ordinary course and in the same manner as operated prior
to the execution hereof. On the Closing Date, there shall be
outstanding no liability, judgment or litigation that could result
in an encumbrance of, or otherwise substantially adversely affect,
the
-25-
assets, licenses and property being sold, assigned and transferred
hereunder or the operation of the Stations.
(e) Salary Increases.
Grant no salary increase to any officer or employee of the Stations,
except normal merit, promotional and similar increases granted in
the ordinary course of business and consistent with prior practice.
(f) Required Consents.
Use its best efforts to obtain all of the consents noted on Exhibit
K hereto, and in connection therewith promptly to commence and
thereafter diligently prosecute application for all such consents,
waivers and approvals required herein, and to keep Purchaser
currently informed of the status thereof and of any difficulties
encountered in obtaining same and promptly to advise Purchaser of
all communications relevant to the transactions provided for in this
Agreement received by Seller or Grantor from the FCC subsequent to
the date hereof, and to furnish the Purchaser copies of all written
communications and documents filed with the FCC by Seller or Grantor
and received by Seller or Grantor from the FCC subsequent to the
date hereof.
(g) Books and Records.
Maintain the books of accounts and records of the Stations in the
usual, regular and ordinary manner, in accordance with Grantor's
standard accounting practices.
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(h) Contracts.
Not enter into or terminate any contract in an amount greater than
$10,000 or for a term exceeding one year and to be assumed by
Purchaser, or amend any provision of any contract in an amount
greater than $10,000 or for a term exceeding one year and to be
assumed by Purchaser, whether or not in the ordinary course of
business, without the prior written consent of Purchaser, which
consent will not be unreasonably withheld. Grantor shall not enter
into any Trade Deal after execution of this Agreement which shall
obligate Purchaser without Purchaser's prior written consent.
7. PURCHASER'S PERFORMANCE.
The obligations of Purchaser hereunder are subject at its election to the
conditions that on the Closing Date:
(a) The representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects and the
covenants and agreements of Seller to be performed on or prior to
the Closing Date pursuant to the terms of this Agreement shall have
been duly performed, and Seller shall have delivered to Purchaser a
certificate, dated as of the Closing Date, signed by a duly
authorized officer of Seller to that effect.
(b) The FCC authorizations, including those set forth on Exhibit B shall
be assigned and transferred to Purchaser and shall contain no
adverse modifications of the terms of such authorizations as they
presently exist. Any
-27-
and all governmental approvals necessary to consummate the
transactions contemplated by this Agreement shall have been
received.
(c) Purchaser shall have received a written opinion of Hull, ▇▇▇▇▇▇,
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, Counsel for Seller, dated as of the Closing
Date, in customary form and substance that:
(i) Medical College of Georgia Foundation is a not for profit
corporation duly organized and validly existing and in good
standing under the laws of Georgia, has full power and
authority to own its properties, and has full power and
authority to enter into this Agreement and to consummate the
transactions contemplated herein.
(ii) This Agreement has been duly authorized, executed and
delivered by Seller, and is a valid and binding obligation of
Seller, enforceable against Seller in accordance with its
terms.
(iii) The sale of all of the Stations Assets to Purchaser hereunder
has been duly authorized by all necessary action of Seller,
and deed(s) of conveyance, ▇▇▇▇(s) of sale and any and all
other instruments delivered to Purchaser hereunder have been
duly authorized, executed and delivered, and conform with all
legal requirements to vest in Purchaser good and valid title
to all the Stations Assets.
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(iv) The execution, delivery and performance of this Agreement and
all of the documents executed in conjunction therewith by
Seller do not violate any provisions of Seller's
organizational documents or, to the best of counsel's
knowledge, any provision of any material note, mortgage,
agreement, franchise, order, arbitration award, judgment, law,
ordinance or decree to which Seller is a party or by which
Seller is bound.
(v) To the best of the knowledge of such counsel, no action,
claim, suit or proceeding or any investigation of any
governmental authority is pending or threatened against or
affecting Seller or the Stations or the Stations Assets which
would affect such Stations Assets or the transactions
contemplated by this Agreement.
(d) Purchaser shall have received a written opinion of Holland & Knight
LLP, FCC Counsel for Seller, dated as of the Closing Date,
substantially in the form of Exhibit L hereto.
(e) No suit, action or other proceeding against Seller or Grantor shall
be pending before any court or governmental agency of competent
jurisdiction in which it is sought to restrain or prohibit any of
the transactions contemplated by this Agreement or to obtain damages
or other relief in connection with this Agreement or the
transactions contemplated hereby.
-29-
(f) The Tower Lease Agreement for the FM Tower Site shall be executed
concurrently.
(g) Seller shall have executed and delivered to Purchaser the documents
required herein to be executed and delivered by it.
8. SELLER'S PERFORMANCE.
Seller's performance is subject at its election to the conditions that, at
the Closing Date:
(a) All payments hereunder which are due and payable by Purchaser on the
Closing Date shall have been paid in accordance with the terms of
this Agreement, and Purchaser shall have executed all of the
documents required of it herein.
(b) The representations and warranties of Purchaser contained in this
Agreement shall be true and correct in all material respects, and
the covenants and agreements of Purchaser to be performed on or
prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed, and Purchaser shall have delivered
to Seller a certificate, dated as of the Closing Date, signed by a
duly authorized officer of Purchaser to that effect.
(c) No litigation, investigation or proceeding of any kind shall have
been instituted which would adversely affect the ability of
Purchaser to comply with the provisions of this Agreement.
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(d) Seller shall have received an opinion of ______________________,
Counsel for Purchaser, dated as of the Closing Date, in customary
form and substance that:
(i) Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of ________,
and Purchaser is authorized to do business in the State of
Georgia and the State of South Carolina.
(ii) Each of the documents executed and/or ratified by Purchaser in
accordance with the terms of this Agreement has been duly
authorized and/or ratified by all necessary corporate action.
(iii) This Agreement has been duly authorized, executed and
delivered by Purchaser and is a valid and binding obligation
of Purchaser, enforceable against Purchaser in accordance with
its terms.
(iv) The execution, delivery and performance of this Agreement and
all of the documents to be executed in conjunction therewith
by Purchaser do not violate any provisions of Purchaser's
organizational documents or, to the best of Counsel's
knowledge, after reasonable investigation, any provision of
any material note, mortgage, agreement, franchise, order,
arbitration award, judgement, law, ordinance or decree to
which Purchaser is a party or by which Purchaser is bound.
-31-
(e) The Tower Lease Agreement for the FM Tower Site shall be executed
concurrently.
9. FCC APPROVAL AND APPLICATION.
(a) Consummation of the transactions contemplated hereunder is
conditioned upon the FCC having given its prior consent in writing
to the assignment to Purchaser of the FCC licenses and other
authorizations set forth in Exhibit B hereto and such consent having
become a Final Order. For purposes of this Agreement, such consent
shall be deemed a Final Order when it is no longer subject to timely
review by the FCC or by any court or, in the event of
reconsideration upon its own motion or otherwise by the FCC or an
appeal by any person to any court, upon the decision of such body
becoming no longer subject to review. The condition of finality may
be waived jointly by Seller and Purchaser.
(b) The parties agree to proceed, as expeditiously as possible, but in
no event later than ten (10) business days after the date of this
Agreement, to file or cause to be filed an application requesting
FCC consent to the transactions herein involved.
(c) If the FCC has failed or refused to grant its Final written consent
to the assignment of the aforesaid licenses and other authorizations
and/or any other transactions contemplated to be consummated
hereunder on or before December 31, 1998 (the "Termination Date"),
Purchaser or Seller, at their respective options, may terminate this
Agreement upon ten (10) days' prior
-32-
written notice to the other, in which event this Agreement shall
have no further force or effect; or if the delay in the FCC's action
is due to the refusal or failure of either party to supply the FCC
with information which the FCC has requested, only the party not at
fault shall have the option of terminating this Agreement.
10. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ FILING.
In the event consummation of the transactions contemplated hereunder
requires Purchaser and Seller to file with the United States Department of
Justice ("DOJ") and Federal Trade Commission ("FTC") all notifications and
reports required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, the parties hereto each agrees to supply to the other upon request
all information needed to complete such notifications and reports and to
proceed as expeditiously as possible (but in no event later than thirty
(30) business days after the date hereof) to make the filing. Each party
shall promptly apprise the other of the status of any inquiries made by
the DOJ, FTC or any other governmental agency with respect to this
Agreement or the transactions contemplated herein. All filing fees payable
to the DOJ and the FTC with respect to such notifications and reports
shall be paid by Purchaser.
11. DATE, NOTICE AND PLACE OF CLOSING.
The date and time of closing ("Closing Date") shall be mutually agreed
upon by Seller and Purchaser, but, in the absence of such agreement, shall
not be more than ten (10) business days after all of the conditions to
closing set forth in Sections 7, 8, 9 and 10 hereof are satisfied or
waived. In the event of the inability of the
-33-
parties to agree on the Closing Date, Seller shall have the right to fix
the same on ten (10) days' prior written notice to Purchaser. The closing
shall be held at a mutually agreeable location in Augusta, Georgia, or at
such other location as shall be mutually agreed upon by Seller and
Purchaser.
12. CONTROL OF STATIONS.
Until the Closing Date, Grantor shall have complete control of the
Stations, their equipment and operation. Purchaser shall be entitled,
however, to notice of any significant problems or developments with the
purpose that an uninterrupted and efficient transfer to Purchaser of the
Stations and assets and all other assets and properties to be transferred
hereunder may be accomplished.
13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations, warranties, covenants and agreements contained in
this Agreement shall be true and correct on and as of the Closing Date as
though such representations, warranties, covenants and agreements were
made on and as of such time, and all such representations, warranties,
covenants and agreements shall survive the closing hereunder; provided,
however, that Seller shall have no liability for a misrepresentation or
breach of warranty unless written notice of claim therefor specifying with
particularity the facts upon which such claim is based has been given to
Seller by Purchaser within one (1) year from the Closing Date.
14. RIGHTS OF INDEMNIFICATION; DEFAULT.
(a) It is understood and agreed that Purchaser does not assume, and
shall not be obligated to pay, any liabilities of Seller under the
terms of this Agreement
-34-
or otherwise and shall not be obligated to perform any obligations
of Seller of any kind or manner except by reason of contracts
expressly assigned and assumed by Purchaser hereunder, and, with
respect to such contracts, only such obligations which arise
subsequent to the Closing Date (or, if applicable, the TBA
Commencement Date) or as is herein provided. Seller hereby agrees to
indemnify and hold Purchaser, its successors and assigns, harmless
from and against:
(i) Claims, liabilities and obligations arising from the operation
of the Stations prior to the Closing Date (or, if applicable,
the TBA Commencement Date), including claims arising or
required to be performed prior to the Closing Date (or, if
applicable, the TBA Commencement Date) under any contract or
instrument assumed by Purchaser hereunder; and
(ii) Any and all damage or deficiency resulting from a material
misrepresentation, breach of warranty or nonfulfillment of an
agreement on the part of Seller under this Agreement, arising
out of events occurring prior to the Closing Date (or, if
applicable, the TBA Commencement Date), or from a material
misrepresentation in or omission from any certificate or other
instrument furnished to Purchaser pursuant to this Agreement,
or in connection with any of the transactions contemplated
hereby; and
-35-
(iii) Any and all actions, suits, proceeding, damages, assessments,
judgments, costs and expenses, including reasonable attorneys'
fees, incurred by Purchaser as a result of Seller's failure or
refusal to compromise or defend any claim incident to the
foregoing provisions.
Notwithstanding the foregoing, Seller shall not be required to
indemnify Purchaser under the foregoing clauses (i), (ii) or (iii)
unless the aggregate amount owed by Seller to Purchaser pursuant to
the foregoing clauses (i), (ii) and (iii) exceeds $50,000, in which
event Seller shall be required to indemnify Purchaser for the entire
amount owed.
(b) If any claim for which Purchaser is entitled to indemnity is
asserted against Purchaser by a third party, Purchaser shall
promptly give Seller notice thereof and give Seller an opportunity
to defend the same with counsel of Seller's choice (subject to the
approval of Purchaser, not to be unreasonably withheld or delayed)
at Seller's expense. Purchaser, at Seller's expense, shall provide
reasonable cooperation in connection with such defense. In the event
that Seller desires to compromise or settle any such claim,
Purchaser shall have the right to consent to such settlement or
compromise; provided, however, that if such compromise or settlement
is for money damages only and will include a full release and
discharge of Purchaser, and Purchaser withholds its consent to such
compromise or settlement, Purchaser and Seller agree that (i)
Seller's liability shall be limited to the
-36-
amount of the proposed settlement and, upon payment of such sum to
Purchaser, Seller shall thereupon be relieved of any further
liability with respect to such claim, and (ii) from and after such
date, Purchaser will undertake all legal costs and expenses in
connection with any such claim. If Seller fails to defend any claim
within a reasonable time, Purchaser shall be entitled to assume the
defense thereof, and Seller shall be liable to Purchaser for its
expenses reasonably incurred, including attorneys' fees and payment
of any settlement amount or judgment.
(c) Purchaser hereby agrees to indemnify and hold Seller and its
successors and assigns harmless from and against:
(i) Claims, liabilities and obligations arising from the operation
of the Stations on or after the Closing Date (or, if
applicable, the TBA Commencement Date), including claims
arising or required to be performed on or after the Closing
Date (or, if applicable, the TBA Commencement Date) under any
contract or instrument assumed by Purchaser hereunder; and
(ii) Any and all damage or deficiency resulting from a material
misrepresentation, breach of warranty, nonfulfillment of any
agreement or obligation, assumed or required to be assumed by
Purchaser under this Agreement, or from a material
misrepresentation in or omission from any certificate or other
instrument furnished to Purchaser pursuant to this Agreement,
-37-
or in connection with any of the transactions contemplated
hereby; and
(iii) Any and all actions, suits, proceedings, damages, assessments,
judgements, costs and expenses, including reasonable
attorneys' fees, incurred by Seller as the result of
Purchaser's failure or refusal to defend or compromise any
claim incident to any of the foregoing provisions.
(d) If any claim covered by the foregoing indemnity is asserted against
Seller by a third party, Seller shall notify Purchaser promptly and
give Purchaser an opportunity to defend the same with counsel of
Purchaser's choice (subject to the approval of Seller, not to be
unreasonably withheld or delayed) at Purchaser's expense. Seller, at
Purchaser's expense, shall provide reasonable cooperation in
connection with such defense. In the event that Purchaser desires to
compromise or settle any such claim and such compromise will
adversely affect Seller, Seller shall have the right to consent to
such settlement or compromise; provided, however, that if such
compromise or settlement is for money damages only and will include
a full release and discharge of Seller, and Seller withholds its
consent to such compromise or settlement, Purchaser and Seller agree
that (i) Purchaser's liability shall be limited to the amount of the
proposed settlement and, upon payment of such sum to Seller,
Purchaser shall thereupon be relieved of any further liability with
respect to such claim, and (ii) from and after such date,
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Seller will undertake all legal costs and expenses in connection
with any such claims. If Purchaser fails to defend any claim within
a reasonable time, Seller shall be entitled to assume the defense
thereof, and Purchaser shall be liable to Seller for its expenses
reasonably incurred, including attorneys' fees and payment of any
settlement amount or judgement.
(e) In the event either party shall default in its obligations
hereunder, such party shall have a period not to exceed fifteen (15)
days after notice thereof by the other party in which to cure said
default.
15. INDEMNIFICATION ESCROW.
(a) On the Closing Date, Seller shall deposit in escrow with
____________, acting as the indemnification escrow agent on the
parties' behalf ("Indemnification Escrow Agent"), a deposit in the
amount of Two Hundred Thousand and No/100 Dollars ($200,000.00)
("Indemnification Escrow") by bank wire transfer of immediately
available funds, to be held in escrow for a period of twelve (12)
months from the Closing Date in accordance with the terms and
conditions of the Indemnification Escrow Agreement entered into
between Seller, Purchaser and Indemnification Escrow Agent in the
form of Exhibit M hereto.
(b) The Indemnification Escrow Agent shall retain the Indemnification
Escrow in accordance with the terms of the Indemnification Escrow
Agreement as security for Seller's obligation to indemnify Purchaser
as provided in Section 14 hereof. It is expressly understood that
the amount of the Indemnification
-39-
Escrow is not a limit upon Seller's liability for any breach of this
Agreement or its indemnity obligations hereunder, provided, however,
Seller's liability for any breach of this Agreement shall not exceed
the Purchase Price.
16. ALTERNATIVE DISPUTE RESOLUTION.
(a) Except as otherwise provided herein, in case any disagreement of
whatever nature arising out of or relating to this Agreement or the
breach, termination, enforceability or validity thereof ("Dispute")
shall arise between the parties hereto, the parties shall first
attempt in good faith to resolve the Dispute promptly by negotiation
between executives who have authority to settle the Dispute. If the
Dispute cannot be resolved through negotiation, either party may
initiate mediation of the Dispute as hereinafter provided.
(b) If the Dispute has not been resolved by negotiation as hereinabove
provided, the parties shall make a good faith attempt to settle the
Dispute by mediation pursuant to the provisions of this Section 16
before resorting to arbitration. Unless the parties agree otherwise,
the mediation shall be conducted in accordance with the Commercial
Mediation Rules of the American Arbitration Association (the "AAA")
then in effect by a mediator who (i) has the qualifications and
experience set forth in paragraph (c) of this Section 16 and (ii) is
selected as provided in paragraph (d) of this Section 16.
(c) Unless the parties agree otherwise, the mediator shall be a lawyer
licensed in the State of Georgia (i) who is or has been a partner in
(or counsel to) a highly respected law firm for at least 15 years as
a practicing attorney
-40-
specializing in either general commercial litigation or general
corporate and commercial matters and (ii) who has had both training
and experience as a mediator.
(d) Either party (the "Initiating Party") may initiate mediation of the
Dispute by giving the other party (the "Recipient Party") written
notice (a "Mediation Notice") setting forth a list of the names and
resumes of qualifications and experience of three impartial persons
who the Initiating Party believes would be qualified as a mediator
pursuant to the provisions of paragraph (c) hereof. Within 15 days
after the delivery of the Mediation Notice, the Recipient Party
shall give a counter-notice (the "Counter-Notice") to the Initiating
Party in which the Recipient Party may designate a person to serve
as the mediator from among the three persons listed by the
Initiating Party in the Mediation Notice (in which event such
designated person shall be the mediator). If none of the persons
listed in the Mediation Notice is designated by the Recipient Party
to serve as the mediator, the Counter-Notice should set forth a list
of the names and resumes of three impartial persons who the
Recipient Party believes would be qualified as a mediator pursuant
to the provisions of paragraph (c) hereof. Within 10 days after the
delivery of the Counter- Notice, the Initiating Party may designate
a person to serve as the mediator from among the three persons
listed by the Recipient Party in the Counter-Notice (in which event
such designated person shall be the mediator). If the parties cannot
agree on a mediator from the three impartial nominees
-41-
submitted by each party, each party shall strike two names from the
other party's list, and the two remaining persons on both lists will
jointly select as the mediator any person who has the qualifications
and experience set forth in paragraph (c) hereof. If they are unable
to agree, then the mediator will be selected by the President of the
AAA.
(e) Within 30 days after the mediator has been selected as provided
above, both parties and their respective attorneys shall meet with
the mediator for one mediation session of at least six hours, it
being agreed that each party representative attending such mediation
session shall be an executive with authority to settle the Dispute.
If the Dispute cannot be settled at such mediation session or at any
mutually agreed continuation thereof, either party may give the
other and the mediator a written notice declaring the mediation
process at an end, in which event the Dispute shall be resolved by
arbitration as hereinafter provided.
(f) The costs of the mediation shall be shared equally between the
parties.
(g) If the Dispute is not settled by negotiation or mediation, then the
Dispute shall be decided by arbitration. Arbitration shall be
initiated by either party giving written notice to arbitrate to the
other party, stating the question to be arbitrated and the name of
the arbitrator selected by that party. Within ten (10) days of the
date of said notice to arbitrate certificate, the other party shall
select and give written notice of its arbitrator to the initiating
party. The two arbitrators so selected shall select a third
arbitrator and give written
-42-
notice within five (5) days after the second arbitrator is chosen.
The arbitration shall be conducted solely by the third arbitrator,
who shall hear evidence and make an award within twenty (20) days
after the notice of selection of the third arbitrator is given to
the parties, which award, when signed by the third arbitrator, shall
be final. If either party shall refuse or neglect to appoint an
arbitrator within ten (10) days after the other shall have appointed
an arbitrator and given written notice to arbitrate to the other,
requiring such party to appoint an arbitrator, then the arbitrator
so appointed by the first party shall have power to proceed to
arbitrate and determine the matters of disagreement as if he were an
arbitrator appointed by both the parties hereto for that purpose,
and his award in writing signed by him shall be final; provided that
such award shall be made within fifteen (15) days after such refusal
or neglect of the other party to appoint an arbitrator. The party
against which such award is made shall pay all costs and expenses of
the arbitration.
(h) Any arbitration pursuant to this Section 16 shall be conducted in
Augusta, Georgia, and governed by the Federal Arbitration Act and
administered by the AAA under its Commercial Arbitration Rules and
its Supplementary Procedures for Large, Complex Disputes, provided
that persons eligible to be selected as arbitrators shall be limited
to attorneys-at-law who (i) are on the AAA's Large, Complex Case
Panel or a CPR Panel of Distinguished Neutrals, or who have
professional credentials similar to the attorneys listed
-43-
on such AAA and CPR panels, and (ii) have practiced law for at least
15 years as an attorney specializing in either general commercial
litigation or general corporate and commercial matters. The
arbitrator shall base its award on applicable law and judicial
precedent and include in such award a statement of the reasons upon
which the award is based. Judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.
17. BROKER'S FEE.
Seller and Purchaser represent and warrant to the other that it has not
retained, and is not obligated to, any person or entity for brokerage,
finder's fees or commission or other similar charges resulting from or
arising out of the transactions contemplated in this Agreement, and each
party hereby indemnifies and holds the other party harmless from payment
of any such fees, commissions or charges.
18. SELLER'S PERFORMANCE AT CLOSING.
At the closing hereunder, Seller shall:
(a) Deliver to Purchaser an executed General Conveyance, ▇▇▇▇ of Sale,
Assignment and Assumption, substantially in the form of Exhibit N
hereto, which General Conveyance, ▇▇▇▇ of Sale, Assignment and
Assumption shall include, but not be limited to, an assignment to
Purchaser of (i) the licenses and all other authorizations listed on
Exhibit B, used in the operation of the Stations, transferring the
same to Purchaser, (ii) good and marketable title to all tangible
personal property described on Exhibit C hereof (subject to
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changes in the ordinary course of business since the date hereof),
(iii) the contracts, leases and agreements described on Exhibits D
and E hereof, (iv) the copyrights and service marks listed on
Exhibit F hereof, and (v) all right, title and interest of Seller in
and to the intangible assets, free and clear of all mortgages,
liens, attachments, conditional sales contracts, claims or
encumbrances of any kind except liens for ad valorem taxes not yet
due and payable.
(b) Deliver to Purchaser at the Stations the files, records and logs
referred to in Section 1(f) hereof.
(c) Deliver to Purchaser a certified copy of the resolutions of the
Board of Directors of Seller authorizing the execution of this
Agreement and the consummation of the transactions described herein.
(d) Deliver to Purchaser the written opinion of Hull, ▇▇▇▇▇▇, ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇, dated as of the Closing Date, pursuant to the provisions of
this Agreement.
(e) Deliver to Purchaser the written opinion of Holland & Knight LLP,
dated as of the Closing Date, pursuant to the provisions of this
Agreement.
(f) Deliver to Purchaser a certificate signed by a duly authorized
officer of Seller and dated as of the Closing Date to the effect
that all representations and warranties set forth in this Agreement
shall be true and correct as of and as if made on the Closing Date
and that, to Seller's knowledge, no event of default shall have
occurred and be continuing on the Closing Date which,
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with lapse of time or giving of notice, or both, would constitute a
default by Seller under this Agreement.
(g) Deliver to Purchaser Uniform Commercial Code lien searches from
Richmond County, Georgia, the Georgia Secretary of State, Aiken
County, South Carolina and the Secretary of State of South Carolina
dated as of a date not more than five (5) days prior to the Closing
Date and showing no Uniform Commercial Code, judgment, tax or other
lien filings against the Stations Assets, other than security
interests or other filings which will be released at closing.
(h) Deliver to Purchaser such other instruments and documents as may be
reasonably requested by Purchaser to effectuate the transactions
contemplated hereby.
(i) Deposit with the Indemnification Escrow Agent by wiring immediately
available funds in the Indemnification Escrow.
19. PURCHASER'S PERFORMANCE AT CLOSING.
At the closing hereunder, Purchaser shall:
(a) Pay by wiring immediately available funds the monies payable at the
closing.
(b) Deliver to Seller an executed counterpart of the General Conveyance,
▇▇▇▇ of Sale, Assignment and Assumption substantially in the form of
Exhibit N hereto, and such other instruments as Seller may
reasonably require evidencing Purchaser's assumption and agreement
to perform all of the contracts and agreements assigned to it
hereunder and evidencing
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Purchaser's acceptance and conveyance of title to the personal
property and other assets assigned and conveyed to it hereunder.
(c) Deliver to Seller a certified copy of the resolutions of Purchaser's
Board of Directors authorizing the execution of this Agreement and
the consummation of the transactions described herein.
(d) Deliver to Seller the written opinion of [legal counsel] dated as of
the Closing Date, pursuant to the provisions of this Agreement.
(e) Deliver to Seller a certificate signed by a duly authorized officer
of Purchaser and dated as of the Closing Date to the effect that all
representations and warranties set forth in this Agreement shall be
true as of and as if made on the Closing Date and that, to
Purchaser's knowledge, no event of default shall have occurred and
be continuing on the Closing Date which, with lapse of time or
giving of notice, or both, would constitute a default by Purchaser
under this Agreement.
(f) Deliver to Seller such other instruments and documents as may be
reasonably requested by Seller to effectuate the transactions
contemplated hereby.
20. EVENTS OF TERMINATION; DISBURSEMENT OF DEPOSIT.
(a) Failure to Close without Fault.
In the event that (i) each of the parties hereto shall have
satisfied in full all of the obligations of such party under this
Agreement which were to have been satisfied by such party prior to
the Closing Date and shall not have breached
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any representation, warranty, covenant or agreement of such party
contained in this Agreement, which breach has a material adverse
effect upon the other party, but (ii) the closing shall nevertheless
fail to take place (without any fault on the part of any party)
prior to the Termination Date because one or more conditions to the
closing in Sections 7,8, 9 and 10 hereof shall not have been
satisfied or waived, this Agreement shall terminate, and the
Deposit, together with any interest earned thereon, shall be
returned to Purchaser.
(b) Disbursement of Deposit to Seller.
If the conditions to closing specified in Sections 9(a) and 10
hereof shall have been satisfied and either (i) Purchaser shall
default in the performance of any of its material obligations or
materially breach any of its representations, warranties, covenants
or agreements hereunder and Seller shall have performed all of its
material obligations and shall not have materially breached any of
its representations, warranties, covenants or agreements hereunder,
or (ii) (1) pursuant to the terms of this Agreement, Purchaser shall
be obligated to purchase the assets and properties hereunder, (2)
Seller shall have duly satisfied each of the conditions of Section 8
above to be satisfied by it (or, in the case of any such condition
which is to be satisfied at the Closing, shall have demonstrated a
willingness and ability to satisfy such condition in the event the
Closing were to take place), except to the extent that any failure
to satisfy such condition was caused in any material respect by
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Purchaser, and (3) Purchaser shall nevertheless fail to purchase the
assets and properties in accordance herewith, Seller shall have the
right to terminate this Agreement, upon written notice to Purchaser,
and the Deposit, together with any interest earned thereon, shall be
disbursed to Seller in accordance with the terms of the Escrow
Agreement. The parties agree that such disbursement of the Deposit
is not a penalty and is a reasonable estimation of damages actually
incurred.
INITIAL HERE: SELLER: _______
PURCHASER: _______
(c) Return of Deposit to Purchaser.
If the conditions to closing specified in Sections 9(a) and 10
hereof shall have been satisfied and either (i) Seller shall default
in the performance of its material obligations or materially breach
any of its representations, warranties, covenants or agreements
hereunder and Purchaser shall have performed all of its material
obligations and shall not have materially breached any of its
representations, warranties, covenants or agreements hereunder, or
(ii) (1) pursuant to the terms of this Agreement, Seller shall be
obligated to sell the assets and properties hereunder to Purchaser,
(2) Purchaser shall have duly satisfied each of the conditions of
Section 7 above to be satisfied by it (or, in the case of any such
condition which is to be satisfied at the closing, shall have
demonstrated a willingness and ability to
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satisfy such condition in the event the closing were to take place),
except to the extent that any failure to satisfy such condition was
caused in any material respect by Seller, and (3) Seller shall
nevertheless fail to sell the assets and properties to Purchaser in
accordance herewith, Purchaser shall have the right to terminate
this Agreement, upon written notice to Seller, and the Deposit,
together with any interest earned thereon, shall forthwith be
returned to Purchaser.
(d) Mutual Agreement.
This Agreement may be terminated at any time by mutual agreement of
Seller and Purchaser, in writing, and the Deposit, together with any
interest earned thereon, shall be delivered in accordance with the
mutual agreement of the parties.
21. SPECIFIC PERFORMANCE.
The parties recognize that if Seller refuses to close as and when required
under the provisions of this Agreement, monetary damages will not be
adequate to compensate Purchaser for its injury. Purchaser shall therefore
be entitled, in addition to a right to collect money damages, to obtain
specific performance of the terms of this Agreement. If any action is
brought by Purchaser to enforce this Agreement, Seller shall waive the
defense that there is an adequate remedy at law.
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22. BULK SALES LAW.
Purchaser hereby waives compliance by Seller with the provisions of all
bulk sales laws, or other similar provisions, but Seller agrees to
indemnify and hold Purchaser harmless for any claims arising thereunder.
23. ASSET ACQUISITION STATEMENT.
The parties shall each file Internal Revenue Service Form 8594 in a timely
manner after the Closing Date and in accordance with the purchase price
allocation determined in accordance with Section 2(a) hereof.
24. EXHIBITS AND SCHEDULES.
All exhibits attached to this Agreement shall be deemed part of this
Agreement and incorporated herein as if fully set forth herein.
25. ASSIGNMENTS; SUCCESSORS AND ASSIGNS.
This Agreement shall not be assigned to a third party without the prior
written consent of the other party. In the event of an approved
assignment, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their successors and assigns.
26. CONSTRUCTION.
This Agreement shall be construed and enforced in accordance with the laws
of the State of Georgia, excluding the choice of law rules thereof.
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27. COUNTERPARTS.
This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
28. NOTICES.
All notices, requests, demands and other communications required or
permitted under this Agreement shall be in writing (which shall include
notice by facsimile transmission) and shall be deemed to have been duly
made and received when personally served, or when delivered by Federal
Express or a similar overnight courier service, expenses prepaid, or, if
sent by graphic scanning or other facsimile communications equipment,
delivered by such equipment, addressed as set forth below:
(a) If to Purchaser, then to:
With a copy (which shall not constitute notice) to:
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(b) If to Seller, then to:
Medical College of Georgia Foundation
Alumni Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.E.
(Voice) ▇▇▇-▇▇▇-▇▇▇▇
(Fax) ▇▇▇-▇▇▇-▇▇▇▇
With a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ ▇. Hummers, Jr., Esquire
Holland & Knight LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Voice) ▇▇▇-▇▇▇-▇▇▇▇
(Fax) ▇▇▇-▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
Hull, ▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
Trust Company Bank ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(Voice) ▇▇▇-▇▇▇-▇▇▇▇
(Fax) ▇▇▇-▇▇▇-▇▇▇▇
Any party may alter the address to which communications are to be sent by
giving notice of such change of address in conformity with the provisions
of this Section providing for the giving of notice.
29. ADDITIONAL DOCUMENTS.
Prior to, on or subsequent to the Closing Date, each party to this
Agreement shall, at the request of the other, furnish, execute and deliver
such documents and
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instruments as the requesting party shall reasonably require as necessary
or desirable to implement and consummate the transactions contemplated
hereunder.
30. PARAGRAPH HEADINGS.
Paragraph headings herein have been inserted for reference only and shall
not be deemed to limit or otherwise affect, in any manner, or be deemed to
interpret, in whole or part, any of the terms or provisions of this
Agreement.
31. ENTIRE AGREEMENT.
This Agreement, together with the Exhibits attached hereto, contains all
of the terms agreed upon by the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings between the
parties and may not be changed or terminated orally. No attempted change,
termination or waiver of any of the provisions hereof shall be binding
unless in writing and signed by the party against whom the same is sought
to be enforced.
32. EXPENSES.
Except as otherwise expressly provided in this Agreement, each party shall
bear its own legal, accounting and other expenses in connection with the
negotiation, preparation and consummation of this Agreement and the
transactions contemplated hereby.
33. ATTORNEYS' FEES.
In the event of a dispute between or among any of the parties hereto
arising out of or related to this Agreement or the interpretation or
enforcement of this Agreement,
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the prevailing party or parties shall be entitled to recover reasonable
attorneys' fees, costs and expenses from the other party or parties.
34. CONFIDENTIALITY.
Except as necessary for the consummation of the transactions contemplated
hereby, each party hereto will keep confidential any information which is
obtained from the other party in connection with the transactions
contemplated hereby and which is not readily available to members of the
general public, and will not use such information for any purpose other
than in furtherance of the transactions contemplated hereby. In the event
this Agreement is terminated and the purchase and sale contemplated hereby
abandoned, each party will return to the other party all documents, work
papers and other written material obtained by it in connection with the
transactions contemplated hereby.
35. TIME BROKERAGE AGREEMENT.
The parties acknowledge that simultaneously with the execution of this
Agreement, Grantor and Purchaser shall enter into the TBA substantially in
the form of Exhibit O, consistent with FCC rules and regulations, for the
period prior to the Closing Date, providing for the operation of the
Stations by Purchaser. If the Grantor and Purchaser enter into the TBA,
purchaser shall not have any claim or right, including, without
limitation, any right to terminate this Agreement, due to the inaccuracy
of any representation or warranty, the breach of any covenant, or the
failure of any condition resulting from the operation of the Stations by
Purchaser under the TBA.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have hereunto set their respective
hands and seals as of the day and year first above written.
PURCHASER:
----------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
SELLER:
MEDICAL COLLEGE OF GEORGIA FOUNDATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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WBBQ AGREEMENT OF SALE
BETWEEN
MEDICAL COLLEGE OF GEORGIA FOUNDATION
AND
----------------------
List of Exhibits
----------------
Exhibit A Agreement to Transfer Assets
Exhibit B: FCC Licenses and Authorizations
Exhibit C: Assets Other Than Real Property
Exhibit D: Contracts, Leases and Agreements
Exhibit E: Trade Deals
Exhibit F: Copyrights and Service Marks
Exhibit G: Real Property
Exhibit H: Tower Lease Agreement
Exhibit I: Allocation of Purchase Price
Exhibit J: Escrow Agreement
Exhibit K: Required Consents
Exhibit L: Form of FCC Counsel Opinion
Exhibit M: Indemnification Escrow Agreement
Exhibit N: General Conveyance, ▇▇▇▇ of Sale,
Assignment and Assumption
Exhibit O: Form of Time Brokerage Agreement
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