Exhibit 10.13
ASSET PURCHASE AGREEMENT
by and between
BELVIDERE BROADCASTING, L.P.
(as Seller)
and
NEXTMEDIA OPERATING, INC.
(as Buyer)
Dated as of June 30, 2000
TABLE OF CONTENTS
ASSET PURCHASE AGREEMENT
1.1 Transfer of Assets................................................................... 3
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1.1.1 Licenses and Permits.......................................................... 3
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1.1.2 Tangible Personal Property.................................................... 4
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1.1.3 Contract Rights............................................................... 4
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1.1.4 Intellectual Property......................................................... 4
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1.1.5 Books and Records............................................................. 4
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1.1.6 Manufacturers' and Vendors' Warranties........................................ 5
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1.1.7 Owned Real Estate............................................................. 5
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1.1.8 Leased Real Estate............................................................ 5
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1.1.9 Miscellaneous Assets.......................................................... 5
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1.2 Excluded Assets...................................................................... 5
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1.2.1 Cash.......................................................................... 5
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1.2.2 Notes Receivable and Accounts Receivable...................................... 5
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1.2.3 Tangible and Intangible Personal Property..................................... 5
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1.2.4 Contracts..................................................................... 5
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1.2.5 Corporate Records............................................................. 5
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1.2.6 Contracts of Insurance and Insurance Proceeds................................. 6
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1.2.7 Employee Benefit Plans........................................................ 6
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1.2.8 Name Usage.................................................................... 6
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1.2.9 Other Excluded Assets......................................................... 6
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1.2.10 Causes of Action.............................................................. 6
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1.2.11 Tax Refunds................................................................... 6
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2.1 Assumption of Obligations............................................................. 6
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2.2 Retained Liabilities.................................................................. 6
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3.1 Delivery of Consideration............................................................. 8
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3.2 Allocation of Consideration........................................................... 8
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3.3 Allocations and Prorations............................................................ 8
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4.1. Closing............................................................................... 10
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5.1 FCC Consent........................................................................... 10
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5.2 FCC Applications.................................................................... 10
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6.1 Representations and Warranties of Seller............................................ 10
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6.1.1 Organization, Good Standing, Etc............................................. 11
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6.1.2 Authority.................................................................... 11
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6.1.3 Financial Statements......................................................... 12
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6.1.4 Absence of Undisclosed Liabilities........................................... 12
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6.1.5 Compliance with Applicable Laws; FCC Matters................................. 12
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6.1.6 Litigation................................................................... 13
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6.1.7 Insurance.................................................................... 14
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6.1.8 Real Estate.................................................................. 14
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6.1.9 Personal Property............................................................ 15
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6.1.10 Liens and Encumbrances....................................................... 15
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6.1.11 Environmental Matters........................................................ 16
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6.1.12 Taxes........................................................................ 17
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6.1.13 Personnel.................................................................... 18
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6.1.14 Contracts.................................................................... 18
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6.1.15 ERISA Compliance............................................................. 18
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6.1.16 Labor........................................................................ 19
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6.1.17 Patents, Trademarks, Etc..................................................... 19
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6.1.18 Absence of Certain Changes or Events......................................... 19
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6.1.19 Broker, Commission or Finder's Fees.......................................... 20
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6.1.20 Full Disclosure.............................................................. 20
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6.1.21 Sellers' Financial Condition................................................. 20
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6.1.22 Books and Records............................................................ 20
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6.1.23 Barter Arrangements.......................................................... 20
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6.1.24 No Third Party Options....................................................... 21
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7.1 Representations and Warranties of Buyer.............................................. 21
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7.1.1 Organization and Standing.................................................... 21
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7.1.2 Authorization and Binding Obligation......................................... 21
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7.1.3 Qualification................................................................ 21
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7.1.4 Absence of Conflicting Agreements or Required Consents....................... 21
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7.1.5 Financial Ability............................................................ 22
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7.2 Litigation: Compliance with Law...................................................... 22
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7.3 Broker, Commission or Finder's Fees.................................................. 22
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7.4 Full Disclosure...................................................................... 22
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8.1 Seller Covenants..................................................................... 22
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8.1.1 Conduct of Stations prior to the Closing Date.................................. 22
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8.2 Access................................................................................ 24
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8.3 Other Consents........................................................................ 24
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8.4 No Inconsistent Action................................................................ 24
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8.5 Notification.......................................................................... 25
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8.6 Updating of Schedules................................................................. 25
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8.7 Enforcement of Agreements............................................................. 25
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8.8 FCC Filings........................................................................... 25
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8.9 Indemnification....................................................................... 25
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8.10 Asset Purchase Agreement.............................................................. 26
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8.11 Title Insurance....................................................................... 26
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8.12 Covenant Not to Compete............................................................... 26
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9.1 Buyer Covenants................................................................ 26
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9.1.1 Notification................................................................... 26
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9.1.2 No Inconsistent Action......................................................... 27
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9.1.3 Post-Closing Access............................................................ 27
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9.1.4 Other Consents................................................................. 27
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10.1 Confidentiality....................................................................... 27
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10.2 Cooperation........................................................................... 28
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10.3 Control of Stations................................................................... 28
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10.4 Bulk Sales Laws....................................................................... 28
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10.5 Public Announcements.................................................................. 28
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10.6 Condition of Real Estate.............................................................. 28
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11.1 Representations and Warranties........................................................ 29
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11.2 Compliance with Agreement............................................................. 29
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11.3 Third Party Consents and Approvals; Estoppel Certificates............................. 29
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11.4 Closing Certificates.................................................................. 29
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11.5 Governmental Consents................................................................. 30
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11.5.1 FCC........................................................................... 30
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11.5.2 Other Consents................................................................ 30
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11.6 Adverse Proceedings................................................................... 30
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11.7 Closing Documents..................................................................... 30
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11.8 Material Adverse Change............................................................... 30
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11.9 Opinion of Counsel.................................................................... 30
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11.10 Real Estate Matters................................................................... 30
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12.1 Representations, Warranties and Covenants............................................. 30
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12.2 Compliance with Agreement............................................................. 31
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12.3 Certifications, etc................................................................... 31
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12.4 Governmental Approval................................................................. 31
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12.4.1 FCC........................................................................... 31
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12.4.2 Other Consents................................................................ 31
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12.5 Adverse Proceedings................................................................... 31
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12.6 Closing Documents..................................................................... 31
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12.7 Opinion of Buyer's Counsel............................................................ 31
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13.1 Documents to be Delivered by Seller................................................... 31
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13.1.1 Transfer Documents............................................................ 32
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13.1.2 Certified Resolutions......................................................... 32
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13.1.3 Officer's Certificate......................................................... 32
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13.1.4 Opinions...................................................................... 32
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13.1.5 Good Standing Certificates.................................................. 32
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13.1.6 Other Documents............................................................. 32
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13.2 Documents to be Delivered by Buyer.................................................. 32
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13.2.1 Purchase Price.............................................................. 32
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13.2.2 Assumption Agreement........................................................ 32
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13.2.3 Certified Resolutions....................................................... 32
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13.2.4 Officer's Certificate....................................................... 32
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13.2.5 Opinion..................................................................... 32
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13.2.6 Good Standing Certificates.................................................. 33
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13.2.7 Other Documents............................................................. 33
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14.1 Expenses............................................................................ 33
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14.2 Transfer Taxes and Similar Charges.................................................. 33
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14.3 Governmental Filing or Grant Fees................................................... 33
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15.1 Escrow Deposit...................................................................... 33
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15.2 Liquidated Damages.................................................................. 34
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15.3 Specific Performance................................................................ 34
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16.1 Termination......................................................................... 34
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17.1 Risk of Loss........................................................................ 35
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18.1 Survival of Representations and Warranties.......................................... 36
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18.2 Certain Interpretive Matters and Definitions........................................ 36
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18.2.1 In General.................................................................. 36
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18.2.2 Affiliate................................................................... 36
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18.2.3 Money....................................................................... 36
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18.2.4 Knowledge................................................................... 36
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18.3 Further Assurances.................................................................. 37
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18.4 Financial Statements................................................................ 37
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18.5 Assignment.......................................................................... 37
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18.6 Amendments..................................................................... 38
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18.7 Headings....................................................................... 38
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18.8 Governing Law.................................................................. 38
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18.9 Notices........................................................................ 38
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18.10 Barter and Trade............................................................... 39
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18.11 Schedules...................................................................... 39
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18.12 Entire Agreement............................................................... 39
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18.13 Severability................................................................... 39
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18.14 Counterparts................................................................... 39
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18.15 Authority...................................................................... 39
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18.16 Collection of Accounts Receivable.............................................. 40
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18.17 Conflict with TBA.............................................................. 40
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EXHIBITS
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1. Exhibit 11.9 Opinion of Seller's Counsel
2. Exhibit 12.7 Opinion of Buyer's Counsel
3. Exhibit 15.1 ▇▇▇▇▇▇▇ Money Escrow Agreement
SCHEDULES
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1. Schedule 1.1.1 Station Licenses
2. Schedule 1.1.2 Tangible Personal Property
3. Schedule 1.1.3 Contracts
4. Schedule 1.1.4 Intellectual Property
5. Schedule 1.1.7 Owned Real Estate
6. Schedule 1.1.8 Leased Real Estate
7. Schedule 1.2.9 Excluded Assets
8. Schedule 8.12 Chicago Market Stations
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), is made this 30/th/ day
of June 2000 by and between NextMedia Operating, Inc., a Delaware corporation
("Buyer") and Belvidere Broadcasting, L.P., an Illinois limited partnership
("Seller").
W I T N E S S E T H :
WHEREAS, Seller owns certain assets which are used or useful in connection
with the business and operations of radio stations WKRS-AM, Waukegan, Illinois
and WXLC-FM, Waukegan, Illinois (collectively, the "Stations");
WHEREAS, Seller has disclosed to Buyer certain confidential information
concerning its business and operations of the Stations by letter dated June 29,
2000, from Seller addressed to Buyer ("Seller's Disclosure Letter");
WHEREAS, Buyer has disclosed certain confidential information concerning
its business and operations by letter dated June 30, 2000, from Buyer addressed
to Seller ("Buyer's Disclosure Letter"); and
WHEREAS, Seller desires to sell the Stations, and Buyer desires to purchase
substantially all of the assets of Seller used or useful in connection with the
business and operations of the Stations in accordance with the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto, intending to
be legally bound hereby agree as follows:
ARTICLE 1
PURCHASE OF ASSETS
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1.1 Transfer of Assets. On the terms and subject to the conditions
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contained in this Agreement, on the Closing Date (as hereinafter defined),
Seller shall assign, transfer, convey and deliver to Buyer and Buyer shall
acquire and assume from Seller, all of the right, title, ownership and interest
of Seller in and to all of the following assets, properties, interests and
rights of Seller (collectively, the "Station Assets") free and clear of any and
all Liens (as hereinafter defined), claims, judgments, or encumbrances,
whatsoever, other than Permitted Liens (as hereinafter defined):
1.1.1 Licenses and Permits. All of Seller's rights in and to the
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licenses, permits and other authorizations issued to Seller by any governmental
authority, including those issued by the Federal Communications Commission (the
"FCC") (hereinafter referred to collectively as the
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"Station Licenses"), used in connection with the business or operations of the
Stations, along with renewals or modifications of such items from the date
hereof through the Closing Date, as such items are listed in Schedule 1.1.1
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hereto;
1.1.2 Tangible Personal Property. All equipment, office furniture
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and fixtures, office materials and supplies, inventory, spare parts and all
other tangible personal property of every kind and description, and Seller's
rights therein, owned, leased or held by Seller and used in connection with the
business or operations of the Stations, as such items are described or listed in
Schedule 1.1.2 hereto, together with any replacements thereof or improvements or
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additions thereto, made from the date hereof through the Closing Date, and less
any retirements or dispositions thereof, made between the date hereof and the
Closing Date in the ordinary course of Seller's business consistent with past
practices;
1.1.3 Contract Rights. All of the Seller's rights in and under those
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contracts, agreements, leases and legally binding contractual rights of any
kind, written or oral, relating to the business or operations of the Stations
(collectively, the "Contracts") which are (a) listed in Schedule 1.1.3 hereto,
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(b) entered into by Seller from the date hereof through the Closing Date in the
ordinary course of Seller's business consistent with past practices, subject to
Sections 1.2, 2.2 and 8.1, (c) for the sale of advertising time for cash,
subject to Sections 1.2, 2.2, and 8.1 and (d) for consideration other than cash,
such as merchandise, services or promotional consideration ("Trade Agreements"),
subject to Sections 1.2, 2.2, 8.1 and 18.10;
1.1.4 Intellectual Property. All of Seller's rights in and to all
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foreign and domestic letters patent, patent licenses, processes, patents, all
trade secrets, trade dress, proprietary information, call letters, trademarks,
trade names, service marks, franchises, public image, likeness, mascots,
copyrights (and all extensions, renewals, and termination rights), Internet
domain names, including registrations and applications for registration of any
of them, URL addresses, computer software programs and licenses, know-how
licenses, all programming material of whatever form or nature, jingles, slogans,
the Stations' logos and all other logos or licenses to use same, technical
knowledge, know-how, confidential proprietary information and any and all other
intangible property rights of Seller, which are used in connection with the
business or operations of the Stations, as such items are listed in Schedule
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1.1.4 hereto (collectively, the "Intellectual Property"), together with any
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associated goodwill and any additions thereto between the date hereof and the
Closing Date;
1.1.5 Books and Records. All of Seller's rights in and to all of
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the files, documents, records, and books of account relating to the business or
operations of the Stations or to the Station Assets, including, without
limitation, each of the Stations' public files, programming information and
studies, technical information and engineering data, news and advertising
studies or consulting reports, marketing and demographic data, sales
correspondence, lists of advertisers, promotional materials, credit and sales
reports and filings with the FCC, originals of all written Contracts to be
assigned hereunder, logs, software programs and books and records relating to
employees, financial, accounting, legal, operational and technical matters
(excluding records relating solely to any Excluded Asset (as hereinafter
defined));
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1.1.6 Manufacturers' and Vendors' Warranties. All of Seller's
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rights under manufacturers', distributors', wholesalers', retailers', and
vendors' warranties relating to items included in the Station Assets and all
similar rights derived from, for, and/or against any and all third parties
relating to items included in the Station Assets;
1.1.7 Owned Real Estate. All real property owned by Seller,
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together with all appurtenant easements thereunto, and all structures, fixtures
and improvements located thereon used or useful in connection with the business
or operations of the Stations as more fully described in Schedule 1.1.7 hereto,
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together with any additions thereto from the date hereof through the Closing
Date (the "Owned Real Estate");
1.1.8 Leased Real Estate. All rights, entitlement, benefits and
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interests of Seller under any and all of the leases of real property used or
useful in connection with the business or operations of the Stations (the
"Leased Real Estate"; and together with the Owned Real Estate, the "Real
Estate"), which Leased Real Estate is identified and described in Schedule
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1.1.8;
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1.1.9 Miscellaneous Assets. All such other assets, properties,
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interests and rights, whether real or personal, owned by Seller which are used
or useful in connection with the business or operations of the Stations or which
are located as of the Closing Date on the Real Estate, except for Excluded
Assets.
1.2 Excluded Assets. Notwithstanding anything to the contrary contained
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herein, it is expressly understood and agreed that the Station Assets shall not
include any of the following assets or any right, title or interest therein
(collectively, the "Excluded Assets"):
1.2.1 Cash. All cash, marketable securities, and cash equivalents
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of Seller on hand and/or in banks;
1.2.2 Notes Receivable and Accounts Receivable. All notes
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receivable and accounts receivable of Seller.
1.2.3 Tangible and Intangible Personal Property. All tangible and
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intangible personal property of Seller disposed of or consumed in the ordinary
course of business of Seller consistent with past practices between the date
hereof and the Closing Date, as permitted hereunder;
1.2.4 Contracts. All Contracts which have terminated or expired
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on or prior to the Closing Date in the ordinary course of business of Seller;
1.2.5 Corporate Records. Seller's corporate seals, minute books,
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charter documents, corporate stock record books and such other books and records
as pertains to the organization, existence or share capitalization of Seller,
and duplicate copies of such financial records as are necessary to enable Seller
to file its Tax Returns (as hereinafter defined) and reports;
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1.2.6 Contracts of Insurance and Insurance Proceeds. Contracts of
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insurance and all insurance proceeds or claims made by Seller arising out of or
related to the Station Assets to the extent that such contracts, proceeds or
claims relate to expenditures (a) which were made by Seller prior to the Closing
Date or (b) which Seller remains obligated to make after the Closing Date;
provided, however, that all such contracts, proceeds or claims made or received
on or after the date of this Agreement shall be included under Station Assets;
1.2.7 Employee Benefit Plans. The Employee Benefit Plans (as
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hereinafter defined hereinafter) and the assets thereof;
1.2.8 Name Usage. Any right to use the name "Belvidere
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Broadcasting" or any variation thereof;
1.2.9 Other Excluded Assets. Those specific assets identified on
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the Excluded Assets Schedule attached to this Agreement as Schedule 1.2.9;
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1.2.10 Causes of Action. All of Seller's rights in and to all
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causes of action; and
1.2.11 Tax Refunds. All Tax (as hereinafter defined) refunds
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relating to the period prior to the Closing (as hereinafter defined).
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
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2.1 Assumption of Obligations. Subject to the provisions of Sections 2.1
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and 2.2, on the Closing Date, Buyer shall assume the obligations of Seller
arising or to be performed after the Closing Date under the Contracts referred
to in Section 1.1.3 in effect on the Closing Date, and all liabilities and
obligations that arise from the ownership or operation of the Station Assets
after the Closing Date. All of the foregoing liabilities and obligations shall
be referred to herein collectively as the "Assumed Liabilities."
2.2 Retained Liabilities. Notwithstanding anything contained in this
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Agreement to the contrary, Buyer does not assume or agree to pay, satisfy,
discharge or perform, and will not be deemed by virtue of the execution and
delivery of this Agreement or any document delivered at the execution of this
Agreement, or as a result of the consummation of the transactions contemplated
by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge
or perform, any liability or obligation of Seller other than the Assumed
Liabilities, including, without limitation, any of the following liabilities or
obligations of Seller (the "Retained Liabilities"):
(a) all obligations or liabilities of Seller or any Predecessor
(as hereinafter defined) or Affiliate (as hereinafter defined) of Seller which
in any way relate to, or arise out of, any of the Excluded Assets;
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(b) other than Taxes expressly allocated pursuant to other
provisions of this Agreement, any and all Tax liabilities of Seller;
(c) all liabilities or obligations of Seller owed to Seller or any
of its Affiliates;
(d) all liabilities or obligations arising out of any breach by
Seller or any Predecessor or Affiliate of Seller of any of the terms or
conditions of any provision of any Contract;
(e) all liabilities or obligations of Seller for borrowed money or
for interest on such borrowed money;
(f) all liabilities and obligations of Seller or any Predecessor or
Affiliate of Seller resulting from, caused by or arising out of, any violation
of law, including but not limited to any statute, regulation, ordinance, decree,
or judgment;
(g) any claims, liabilities, judgments, settlements, consents,
orders, decrees or obligations of Seller as an employer, including, without
limitation, liabilities for wages, supplemental unemployment benefits, labor
claims, Equal Employment Opportunity Commission claims, vacation benefits,
severance benefits, retirement benefits, ERISA (as hereinafter defined) benefits
or claims, Federal Consolidated Omnibus Budget Reconciliation Act of 1985
benefits, Federal Family and Medical Leave Act of 1993 benefits, Federal Workers
Adjustment and Retraining Notification Act obligations and liabilities, or any
other employee benefits, withholding Tax liabilities, workers' compensation, or
unemployment compensation benefits or premiums, hospitalization or medical
claims, occupational disease or disability claims, or other claims attributable
in whole or in part to employment on or prior to the Closing Date or termination
by Seller or arising out of any labor matter involving Seller as an employer,
and any claims, liabilities and obligations arising from or relating to the
Employee Benefit Plans;
(h) any claims, liabilities, settlements, judgments, proceedings,
executions, losses, damages, or expenses relating to any litigation, claim,
action, suit, proceeding, or investigation of any nature arising out of the
business or operations of the Stations on or prior to the Closing Date,
including, without limitation, any claims against or any liabilities for
personal injury to or death of, persons or damage to or destruction of property,
any workers' compensation claims, and any warranty claims;
(i) except as may otherwise be provided herein, any accounts
payable, other indebtedness, obligations and accrued liabilities of Seller;
(j) any claims, loses, damages, expenses, liabilities or obligations
resulting from the failure to comply with, or imposed pursuant to, any
Environmental Law (as hereinafter defined), or resulting from the use, presence,
generation, storage, treatment, transportation, handling, disposal, emission or
release of Hazardous Substances (as hereinafter defined), solid wastes, and
liquid and gaseous matters by Seller and by any other person in relation to
Seller or the Stations to the extent
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related to, arising from or otherwise attributable to Seller's acts or omissions
prior to or conditions existing as of the Closing Date, including, without
limitation, any liability or obligation for cleaning up waste disposal sites
from or related to Seller's acts or omissions on or prior to the Closing Date;
and
(k) any fees and expenses incurred by Seller in connection with
negotiating, preparing, closing, performing, complying with, and carrying out
this Agreement and the transactions contemplated by this Agreement, including,
without limitation, the fees and expenses of Seller's attorneys, accountants,
investigators, auditors, consultants and brokers.
ARTICLE 3
CONSIDERATION
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3.1 Delivery of Consideration. In exchange for the Station Assets, and in
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addition to Buyer's assumption of the Assumed Liabilities, Buyer shall, at the
Closing deliver to Seller the sum of Nine Million Four Hundred Thousand and
No/100 Dollars ($9,400,000.00) (subject to adjustment, as set forth in this
Agreement, the "Purchase Price") by wire transfer of immediately available
funds, adjusted pursuant to the provisions of Section 3.3.
3.2 Allocation of Consideration. Within thirty (30) days after the
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Closing Date, Seller and Buyer shall negotiate in good faith an allocation of
the total consideration provided herein among the Station Assets (the
"Allocation"). If the Allocation is not agreed upon within thirty (30) days
after the Closing Date, Buyer and Seller will order an appraisal of the Station
Assets from Broadcast Investments Analysts ("BIA") and BIA will determine the
Allocation. The appraisal, if required, shall be provided to each of Buyer and
Seller within forty five (45) days after it is ordered. Buyer and Seller agree
to prepare and file all Tax Returns and reports (including, if applicable, Form
8594) in a manner consistent with the Allocation and will not in connection with
the filing of such returns make any allocation that is contrary to the
Allocation. Buyer and Seller agree to consult with each other with respect to
all issues related to the Allocation in connection with any Tax audits,
controversy or litigation. The fees for BIA shall be borne equally by Buyer and
Seller.
3.3 Allocations and Prorations.
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3.3.1 The business and the operations of the Stations and the
income and expenses attributable thereto through 11:59 p.m. on the Closing Date
(the "Effective Time") shall be for the account of Seller and thereafter shall
be for the account of Buyer. Expenses for goods and services received both
before and after the Effective Time, utilities charges, ad valorem, real estate,
property and other Taxes (other than income Taxes, which shall be
Seller's sole responsibility for all taxable periods ending prior to and
including the Effective Time, and those Taxes arising from the sale and transfer
of the Station Assets, which, in the case of transfer and other simile Taxes,
shall be paid as set forth in Section 14.2), income and expenses under the
Contracts (other than Trade Agreements), prepaid expenses, music and other
license fees (including any retroactive adjustments
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thereof), wages, salaries, and other employee benefit expenses (whether such
wages, salaries or benefits are current or deferred expenses, including, without
limitation, liabilities accrued up to the Effective Time for bonuses,
commissions, vacation pay, payroll Taxes, workers' compensation and social
security Taxes) and rents and similar prepaid and deferred items shall be
prorated between Seller and Buyer in accordance with the foregoing.
Notwithstanding the foregoing, no proration shall be made with respect to (a)
severance or sick leave with respect to any employee on or prior to the Closing
or (b) any prepaid expense or other deferred item unless Buyer will receive a
benefit in respect of such prepayment or deferral after the Effective Time. For
purposes of this Section 3.3.1, ad valorem and other real estate Taxes shall be
apportioned on the basis of the Taxes assessed for the most recently completed
calendar year, with a reapportionment as promptly as practicable after the Tax
rates and real property valuations for the calendar year in which the Closing
occurs can be ascertained. In addition, Buyer shall be entitled to a credit, if
any, in this proration process for the amount of any Taxes (or other
governmental charges) that are due and payable by Seller, but are being
contested by Seller in good faith in appropriate proceedings and are secured by
Liens, if any, on the Station Assets and such Liens have not been removed on or
prior to the Closing (but once such amounts are finally determined, Buyer shall
use such credit to remove such Liens and return to Seller the excess of (i) the
amount of such credit minus (ii) the amount of such Taxes or other governmental
charges as finally determined, or Seller shall pay to Buyer the deficiency, as
appropriate).
3.3.2 Allocation and proration of the items set forth in Subsection
3.3.1 shall be made by Buyer and a statement thereof given to Seller within
thirty (30) days after the Closing Date. Seller shall give written notice of any
objection thereto within twenty (20) business days after delivery of such
statement, detailing the reason for such objection and stating the amount of
Seller's proposed final allocation and proration. If a timely objection is made
and the parties cannot reach agreement within thirty (30) days after receipt of
the objection as to the amount of the final allocation and proration, the matter
shall be referred to Price Waterhouse Coopers, L.L.P. (the "Independent
Auditor") to resolve the matter, whose decision will be final and binding on the
parties, and whose fees and expenses shall be borne by Buyer and Seller in
accordance with the following: each party shall pay an amount equal to the sum
of all fees and expenses of the Independent Auditor on a proportional basis
taking into account the amount of the net allocation and proration proposed by
each of Buyer and Seller and the amount of the final allocation and proration
determined by the Independent Auditor (for example, if Buyer proposed a payment
of $10 to Seller, Seller proposed a payment of $100, and the Independent Auditor
proposed a payment of $30, Buyer would pay 20/90ths of the Independent Auditor's
fees and Seller would pay 70/90ths of those fees based on the $90 in dispute
between the parties). Within five business days following a final determination
hereunder, the party obligated to make payment will make the payments determined
to be due and owing in accordance with this Section 3.3.
3.3.3 All prorations shall be made in a manner that does not affect
the economic arrangements set out in the parties' Time Brokerage Agreement
("TBA"). The prorations for any and all Contracts shall be calculated as of
12:01 a.m. on the TBA Commencement Date. The TBA Commencement Date shall be
August 1, 2000.
9
ARTICLE 4
CLOSING
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4.1. Closing. The consummation of the transactions contemplated herein
-------
(the "Closing") shall occur, except as may be otherwise mutually agreed
upon by Buyer and Seller, (a) within ten (10) business days after the FCC
Consents (as hereinafter defined) to the assignments of the Station Licenses
have become Final Orders (as hereinafter defined), or (b) at such later date
that all other terms and conditions as set forth in Articles 11 and 12 have been
satisfied, or (c) such other date as may be mutually agreed to by the parties in
writing ("Closing Date"). For purposes of this Agreement, "Final Order" means
action by the FCC granting an application consenting to the assignments
contemplated by this Agreement which is not reversed, stayed, enjoined, set
aside, annulled or suspended, and with respect to which action no timely request
for stay, petition for rehearing, or reconsideration, application for review or
appeal is pending, and as to which the time for filing any such request,
petition or appeal or reconsideration by the FCC on its own motion has expired.
The Closing shall be jointly held in the offices of ▇▇▇▇▇▇▇▇▇ & Associates,
P.A., ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ & Lardner,
One IBM Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 60611-
3608, or at such place as the parties hereto may agree.
ARTICLE 5
GOVERNMENTAL CONSENTS
---------------------
5.1 FCC Consent. It is specifically understood and agreed by Buyer and
-----------
Seller that the Closing, the assignments of the Station Licenses and the
transfer of the Station Assets are expressly conditioned on, and are subject to,
the prior written consent and approval of, the FCC ("FCC Consent").
5.2 FCC Applications. Within ten (10) business days after the execution of
----------------
this Agreement, Buyer and Seller shall file applications with the FCC for the
FCC Consent ("FCC Applications"). Buyer and Seller shall prosecute the FCC
Applications with all reasonable diligence and otherwise use their best efforts
to obtain the FCC Consent as expeditiously as practicable; provided, however,
that no party shall be under any obligation to contest any adverse condition
imposed by the FCC on the grant of the FCC Application or any hearing
designation of the FCC Application.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
10
6.1 Representations and Warranties of Seller. Seller hereby makes the
----------------------------------------
following representations and warranties to Buyer, each of which is true and
correct as of the date hereof, and shall be true and correct as of the Closing
Date:
6.1.1 Organization, Good Standing, Etc.
--------------------------------
(a) Seller is a limited partnership validly existing and in
good standing under the laws of the State of Illinois, has all requisite
partnership power and authority to own, lease, operate or otherwise hold the
Station Assets owned, leased or otherwise held by it and to carry on the
business and operations of the Stations as now being conducted and is duly
qualified to do business in each jurisdiction in which its operation of the
Stations or its ownership or leasing of property makes such qualification
necessary. Seller's general partner (the "General Partner") is a limited
liability company validly existing and in good standing under the laws of the
State of Illinois.
(b) Each of Seller and General Partner has all requisite
partnership and company, respectively, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Seller and General Partner and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary partnership and company action on the part of Seller and
General Partner, respectively, its officers, directors, partners, members,
managers and/or shareholders, as the case may be. This Agreement has been duly
executed and delivered by Seller and General Partner and, assuming the due
execution and delivery of this Agreement by Buyer, constitutes the legal, valid
and binding obligation of Seller and General Partner, enforceable against Seller
and General Partner in accordance with its terms.
6.1.2 Authority. Assuming the consents contemplated by Sections
---------
6.1.2 and 6.1.14 are obtained, neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby shall (a)
violate, conflict with or result in any breach or default of any provision of
the organizational documents of Seller or General Partner, (b) violate, conflict
with or result in a violation or breach of, or constitute a default (with or
without due notice, lapse of time, right to cure, or all of the foregoing)
under, or permit the suspension or termination of, or result in the acceleration
of, or entitle any party to accelerate (whether as a result of the sale of the
Station Assets or otherwise) any material obligation, covenant, term, condition,
or result in the loss of any material benefit, or give rise to the creation of
any material Lien, charge, security interest, judgment, claim or encumbrance
upon any of the properties or assets of Seller or General Partner or any of
their subsidiaries or Affiliates under any of the terms, conditions or
provisions of any loan or credit agreement, note, bond, mortgage, indenture or
deed of trust, promissory note, security agreement, chattel mortgage, debt, or
any material license, lease, agreement or other material instrument or
obligation to which any of them are a party or by which they or any of their
properties or assets may be bound or affected, or (c) violate any order, writ,
judgment, injunction, decree, statute, rule, ordinance or regulation of any
court, administrative agency or commission or other governmental authority or
instrumentality (a "Governmental Entity") applicable to Seller or General
Partner or any of their properties or assets. No consent, approval, order or
authorization of, or
11
registration, declaration or filing with, any Governmental Entity is required by
or with respect to Seller in connection with the execution and delivery of this
Agreement by Seller or the consummation by Seller of the transactions
contemplated hereby, except for consents of the FCC to the assignments of the
Station Licenses.
6.1.3 Financial Statements. Attached to Seller's Disclosure Letter
--------------------
are the most recent copies of the Stations' unaudited balance sheets, and the
related income statements and pro forma broadcast cash flow analyses and the
internally prepared financial statements, including income statements and pro
forma broadcast cash flow analyses (such financial statements collectively being
referred to as "Seller's Financial Statements"). Seller's Financial Statements,
except for the pro forma broadcast cash flow analyses, were prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods covered thereby ("GAAP") and present, accurately,
and fairly, in all material respects, the consolidated financial position,
results of operations and changes in cash flow of the Stations as of such dates
and for the periods then ended (subject, in the case of the unaudited Seller's
Financial Statements, to the absence of notes and to normal, recurring
adjustments that would not be material in the aggregate).
6.1.4 Absence of Undisclosed Liabilities. There are no material
----------------------------------
liabilities of Seller of any kind whatsoever with respect to the Stations
(whether absolute, vested, matured, in arrears, accrued, contingent or
otherwise, and whether due or to become due which are required to be reflected
on, or disclosed in the notes to, a consolidated balance sheet of Seller
prepared in accordance with GAAP), other than the liabilities and obligations
(a) provided for or reserved against in Seller's Financial Statements or (b)
arising in the ordinary course of business after the date of the latest
unaudited balance sheet pertaining to the Stations and consistent with past
experience.
6.1.5 Compliance with Applicable Laws; FCC Matters.
--------------------------------------------
(a) To Seller's knowledge, except as permitted or contemplated
hereby, the business and operations of the Stations have been, and now are
being, conducted in substantial compliance in all material respects with the
Station Licenses, with each law, ordinance, regulation, judgment, decree,
injunction, rule or order of the FCC or any other Governmental Entity binding on
Seller, the Stations or their respective properties or assets. No investigation
or review by any Governmental Entity with respect to Seller or the Stations is
pending or, to the Seller's knowledge, threatened. Without limiting the
generality of the foregoing and with respect to the Stations, the Stations
comply in all material respects with the Communications Act of 1934, as amended
(the "Communications Act"), all rules, regulations and written policies of the
FCC thereunder, all obligations with respect to equal opportunity under
applicable law, and all rules and regulations of the FCC and the Federal
Aviation Administration applicable to the towers used by the Stations (including
all rules regulating hazards to air navigation, registration of radio towers,
and exposure of humans to non-ionizing radio frequency radiation). In addition,
Seller has duly and timely filed, or caused to be filed, with the appropriate
Governmental Entities all applications, reports, statements, fees, documents,
registrations, filings or submissions with respect to the business or operations
of the Stations and the ownership thereof, including, without limitation,
applications for renewal of authority required to
12
be filed by applicable law. All such filings complied in all material respects
with applicable laws when made, and no material deficiencies have been asserted
with respect to any such filings. All the material required by 47 C.F.R. (S)
73.3526 to be kept in the public inspection files of the Stations is in such
files. Except as stated in Seller's Disclosure Letter, Seller has no knowledge
of any material fact or circumstance relating to Seller or the Stations arising
from noncompliance with the Communications Act, or the rules, regulations or
written policies of the FCC in effect on the date of this Agreement that could
reasonably be expected to (i) disqualify Seller from assigning the Station
Licenses to the Buyer or (ii) prevent or delay the consummation by the parties
of the transactions contemplated by this Agreement.
(b) Schedule 1.1.1 lists (i) all licenses, permits and other
--------------
authorizations (including all broadcast auxiliary licenses, construction permits
and all grants of Special Temporary Authority ("STA")) issued by the FCC
relating to the Stations as of the date of this Agreement and (ii) all licenses,
permits or authorizations issued to Seller by any other Governmental Entities
which are material to the business or operations of the Stations and held by
Seller as of the date of this Agreement. Such licenses, permits and
authorizations, and all applications for modification, extension or renewal
thereof or for new licenses, permits, permissions or authorizations applicable
to the business or operations of the Stations are collectively referred to
herein as the Station Licenses (as further defined in Section 1.1.1), each of
which is in full force and effect. To Seller's knowledge, the Stations have been
operated in all material respects in accordance with the terms of the Station
Licenses. All towers and other structures used in the operation of the Stations
or the Station Assets or located on the Real Estate are obstruction marked and
lighted to the extent required by, and in accordance with the rules and
regulations of the Federal Aviation Administration (the "FAA"), the FCC and
other governmental entities. Appropriate notifications to the FAA and
registrations with the FCC have been filed for such towers where required.
Except for proceedings affecting the radio broadcast industry generally, there
are no proceedings pending or, to the Seller's knowledge, threatened with
respect to Seller's ownership or operation of the Stations which reasonably may
be expected to result in the revocation, material adverse modification, non-
renewal or suspension of any of the Station Licenses, the denial of any pending
applications for the Station Licenses, the issuance against Seller of any cease
and desist order, or the imposition of any administrative actions by the FCC or
any other Governmental Entity with respect to the Station Licenses, or which
reasonably may be expected to adversely affect the Stations' ability to operate
as currently operated or the Buyer's ability to obtain assignment of the
Station Licenses. With the exception of operations pursuant to any existing
STAs set out in Schedule 1.1.1 hereto, and with the further exception of such
--------------
temporary reduced power operations as are necessary for routine maintenance, the
Stations operate (A) in conformity with the Station Licenses and (B) within the
operating power tolerances specified in 47 C.F.R. (S)73.1560(b) and 47 C.F.R.
(S)73.1560(a)(1). To Seller's knowledge, no other broadcast station or radio
communications facility is causing interference to the Stations' transmissions
beyond that which is allowed by FCC rules and regulations. Seller has all
necessary authority to use the call signs set forth on Schedule 1.1.1.
--------------
6.1.6 Litigation. Except as stated in Seller's Disclosure
----------
Letter, (a) there is no action, suit, litigation, inquiry, judicial or
administrative proceeding, or arbitration pending or, to the
13
knowledge of Seller, threatened against the Seller or the Stations or any of
their respective properties or assets by or before any arbitrator or
Governmental Entity, and there are no investigations relating to Seller or the
Stations or any of their respective properties or assets pending or threatened
by or before any arbitrator or Governmental Entity, (b) there is no material
judgment, settlement, order, decree, injunction, or order of any Governmental
Entity or arbitrator outstanding against the Seller or the Stations or any of
their respective properties or assets and (c) there is no action, suit,
litigation, inquiry, claim, judicial or administrative proceeding pending or
threatened against the Seller or the Stations by a third party relating to the
Seller or the Station Assets or any of the transactions contemplated by this
Agreement.
6.1.7 Insurance. Seller's Disclosure Letter includes copies of
---------
all fire, liability and other forms or policies of insurance and all fidelity
bonds held by or applicable to the Stations setting forth in respect of each
such policy the policy name, policy number, carrier, term, type of coverage and
annual premium, each of which is in full force and effect on the date hereof, is
valid and enforceable in accordance with its terms and is in an amount
consistent with past practices. No event or claim has occurred, including,
without limitation, the failure by Seller to give any notice or information, or
the delivery of any inaccurate or erroneous notice or information, or any
reservation of rights, which limits or impairs the rights of the insured parties
under any such insurance policies. Seller shall cause comparable policies of
insurance to remain in effect for acts, omissions and events occurring on or
prior to the Closing Date.
6.1.8. Real Estate.
-----------
(a) Schedule 1.1.7 accurately lists and describes all of
--------------
the Owned Real Estate held by the Stations. Seller possesses good and marketable
fee simple title, insurable at standard rates, to all of the Owned Real Estate
(including the improvements thereon), free and clear of all Liens, mortgages,
pledges, covenants, judgments, foreclosure, condemnation, eminent domain,
possession or eviction proceedings, easements, restrictions, encroachments,
leases, charges and other claims and encumbrances of any nature whatsoever, and
without reservation or exclusion of any mineral, timber, water or other rights
or interests, except for Permitted Liens. The buildings (or portions thereof),
improvements and fixtures that are included in the Real Estate are suitable for
their intended use. Seller owns, or has a valid right to use adequate routes of
vehicular and pedestrian ingress and egress to, from and over all of the Real
Estate necessary to operate the Stations. The Real Estate has adequate water
supply, sewage and waste disposal facilities, is connected to and served by
telephone, gas, electricity and other utility equipment facilities and service
necessary for the operation or use of the Real Estate. To Seller's knowledge, no
fact or condition exists which would result in the termination or impairment of
the furnishing of utility services to the Real Estate. Schedule 1.1.7 lists end
--------------
street address and legal descriptions of the Owned Real Estate. All real estate
Taxes, assessments and use charges pertaining to the Owned Real Estate that have
become due have been paid in full.
14
(b) Schedule 1.1.8 accurately lists the street address and
--------------
legal descriptions of the Leased Real Estate held or used in the operation of
the Stations. Each lease of real property pertaining to any and all Leased Real
Estate (a "Real Estate Lease") is in full force and effect and is binding and
enforceable in accordance with its terms. The Seller has timely performed its
obligations under any Real Estate Leases. There is no default or claim of
default or breach against the Seller or any other party to any Real Estate
Lease, or any event or circumstance that, with the passage of time or the giving
of notice or both, would result in (i) a default by the Seller or (ii) to the
best of Seller's knowledge, a default by any other party to any Real Estate
Lease. No notice of termination, foreclosure, eviction, or possession,
condemnation or eminent domain, has been issued with respect to any Real Estate
Lease. The Real Estate Leases are assignable to Buyer on the same terms and
conditions as Seller now enjoy under such Real Estate Leases.
(c) The Real Estate, any improvements thereon, and the use by
Seller thereof conforms in all material respects to: (i) all applicable laws,
including, but not limited to, zoning requirements, and (ii) all restrictive
covenants, if any. There are no eminent domain proceedings pending, or, to
Seller's knowledge, threatened against the Real Estate. To Seller's knowledge,
all material improvements (i) have been constructed in a good and workmanlike
manner, free, in all material respects, from defects in workmanship and material
and (ii) have been constructed, occupied, maintained and operated in material
compliance with all applicable laws, insurance requirements, contracts, leases,
permits, licenses, ordinances, restrictions, building set-back lines, covenants,
reservations, and easements, and Seller has received no notice, written or
verbal, claiming any material violation of any of the same or requesting or
requiring the performance of any material repairs, alterations or other work in
order to so comply. To Seller's knowledge, no improvements on any of the Real
Estate encroaches upon any adjacent real property of any other person or entity.
To Seller's knowledge, the heating, air conditioning, plumbing, ventilating,
utility, sprinkler and other mechanical and electrical systems, apparatus and
appliances located on the Real Estate or in the improvements are in good
operating condition (normal wear and tear excepted), free from material defects
in workmanship and material.
6.1.9 Personal Property. Schedule 1.1.2 contains a list of all
----------------- --------------
material tangible personal property and assets owned or held by Seller and used
in the conduct of the business and operations of the Stations (other than Real
Estate, which is addressed in the foregoing Section 6.1.8). Except as stated in
the Seller's Disclosure Letter, Seller owns and possesses good and marketable
title to all property referred to in the immediately preceding sentence and none
of such property is subject to any Liens, other than Permitted Liens. The
tangible personal property and fixtures owned or used by Seller and necessary
for the business or operations of the Stations, are in good operating condition
(subject to normal wear and tear) and are sufficient to permit the conduct of
the business and operations of the Stations in compliance with FCC rules and
regulations. At Closing, Seller shall own or hold under valid leases all of the
tangible personal property listed in Schedule 1.1.2 and this shall include all
--------------
of the tangible personal property and fixtures necessary to conduct the business
of the Stations as presently conducted. The Station Assets to be transferred
hereunder constitute all of the assets, rights and properties that are required
for the business and operations of the Stations in compliance with FCC rules and
regulations and as they are now operated.
15
6.1.10 Liens and Encumbrances. As of the Closing, all of the
----------------------
Station Assets, including leases, are free and clear of all liens, pledges,
claims, orders, security interests, writs, judgments, restrictions, mortgages
(real or personal), tenancies and other possessory interests, conditional sale
or other title retention agreements, assessments, easements, rights of way,
covenants, restrictions, rights of first refusal, defects in title,
encroachments and other burdens, options or encumbrances of any kind
(collectively, "Liens"), which do not materially interfere with the use, value
and/or operation of the Station and/or the Station Assets, except (a) statutory
Liens securing payments not yet delinquent or the validity of which are being
contested in good faith by appropriate actions, (b) Liens for taxes not yet
delinquent, (c) Liens securing indebtedness, all of which Liens will be fully
discharged by Seller at the Closing upon repayment of all amounts due and owing,
(d) Liens on leases arising from the provisions of such leases, and (e) zoning
ordinances (the Liens referred to in clauses (a) through (e) being "Permitted
Liens").
6.1.11 Environmental Matters. On the date of this Agreement,
---------------------
except as revealed in Seller's Disclosure Letter:
(a) To Seller's knowledge, the Real Estate used in
connection with the Stations and the business and operations thereon is, and
except with respect to any predecessor or prior owner, operator or lessee (each
a "Predecessor"), in substantial compliance with all applicable federal, state
and local statutes, codes, rules, ordinances or regulations as well as common
law decisions relating to the environment, natural resources and public or
employee health and safety (collectively, the "Environmental Laws").
(b) No judicial or administrative proceedings are pending
or, to Seller's knowledge, threatened against Seller or any of the Real Estate
used in connection with the Stations, alleging the violation of or seeking to
impose liability pursuant to any Environmental Law. No notice or claim from any
Governmental Entity or other person has been given to Seller claiming violation
of or alleging any liability under remediation of any Environmental Laws in
connection with any of the Real Estate used in connection with the Stations or
operations thereon.
(c) There are no facts, circumstances or conditions on the
Real Estate or the business or operations thereon used in connection with the
Stations or the business and operations thereon which are reasonably likely to
give rise to an environmental claim or result in Environmental Costs and
Liabilities (as hereinafter defined).
(d) All substances, materials or waste that are regulated by
federal, state or local government under the Environmental Laws as hazardous,
toxic or a pollutant or contaminant, as well as any petroleum or petroleum
derived product, used or generated by Seller or by any Predecessor in connection
with the Real Estate and used in connection with the Stations (collectively, the
"Hazardous Substances"), have been stored, used, treated, and disposed of by
such persons or on their behalf in such manner as not to result in any material
Environmental Costs or Liabilities. "Environmental Costs and Liabilities" means
any losses, including environmental remediation costs, clean up funds,
liabilities, obligations, damages, fines, penalties or judgments,
16
arising from or under any Environmental Law or order of or agreement with any
Governmental Entity or other person.
(e) There are not now, nor have there been in the past, on, in or
under any Real Estate used in connection with the Stations when owned, leased or
operated by Seller, or to Seller's knowledge, when owned, leased or operated by
any Predecessor, any of the following: underground storage tanks, above-ground
storage tanks, dikes or impoundments containing (i) Hazardous Substances, (ii)
asbestos containing materials, (iii) polychlorinated biphenyls or (iv)
radioactive substances or related compounds (other than those labeled and
maintained in accordance with applicable Environmental Laws) in amounts or
concentrations regulated under the Environmental Laws.
(f) The Stations' operations do not have a significant
environmental impact, as defined by 47 C.F.R. (S) 1.1307.
6.1.12 Taxes.
-----
(a) All Tax Returns that are required to be filed on or before
the execution of this Agreement by Seller have been duly filed on a timely basis
under the statutes, rules and regulations of each applicable jurisdiction and
Seller will file or will cause to be duly filed, all Tax Returns required to be
filed by Seller as of the Closing Date and with respect to any taxable period
prior to or which includes the Closing Date. All such Tax Returns are (or will
be) complete and accurate in all material respects. Except as stated in Seller's
Disclosure Letter, all Taxes, whether or not reflected on the Tax Returns, which
are due with respect to the Seller and any of its Affiliates have been timely
paid by the Seller and/or any such Affiliates, whether or not such Taxes are
disputed. For the purposes of this Section 6.1.12 only, Affiliates shall mean
any entity that files a consolidated tax return with the Seller.
(b) No claim, judgment, Lien, settlement, writ, or order for
assessment or collection of Taxes has been asserted against the Seller or any of
its Affiliates. Neither Seller nor any of its Affiliates are a party to any
pending audit, action, suit, claim, litigation, proceeding or investigation by
any Governmental Entity for the assessment or collection of Taxes, nor does
Seller or any of its Affiliates have knowledge of any threatened audit, suit,
claim, litigation, action, proceeding or investigation.
(c) Neither Seller nor any of its Affiliates have waived or
extended any statutes of limitation for the assessment or collection of Taxes.
No claim has ever been made by a Governmental Entity in a jurisdiction where the
Seller or any of its Affiliates does not currently file Tax Returns that the
Seller or its Affiliates may be subject to taxation by that jurisdiction, nor is
Seller or any of its Affiliates aware that any such assertion of Tax
jurisdiction is pending or threatened. No Liens, other than Permitted Liens
(whether filed or arising by operation of law) have been imposed upon or
asserted against any of the Station Assets as a result of or in connection with
any failure, or alleged failure to pay any Tax.
17
(d) Seller has withheld and paid all Taxes required to be
withheld in connection with any amounts paid or owing to any employee, creditor,
independent contractor or other third party.
(e) Seller is not a foreign person or entity within the meaning
of Section 1445 of the Internal Revenue Code (the "Code").
(f) No payment described in this Agreement is subject to Section
280G of the Code.
(g) None of the Stations Assets is (i) "tax-exempt use" property
--------------
within the meaning of Section 168(h) of the Code, (ii) required to be treated as
owned by another person pursuant to the provisions of Section 168(f)(8) of the
Internal Revenue Code of 1954, as amended and in effect immediately prior to the
enactment of the Tax Reform Act of 1986, (iii) "tax exempt bond financed
------------------------
property" within the meaning of Section 168(g) of the Code or (iv) "limited use
-------- -----------
property" (as such term is used in Rev. Proc. 76-30).
--------
(h) For purposes of this Agreement, the terms "Tax" and "Taxes"
shall mean all federal, state, local, or foreign income, payroll, Medicare,
Medicaid, withholding, unemployment insurance, social security, Federal
Insurance Contribution Act, sales, use, service, service use, leasing, leasing
use, excise, franchise, gross receipts, value added, alternative or add-on
minimum, estimated, occupation, real and personal property, stamp, duty,
document, transfer, workers' compensation, windfall profits, environmental
(including taxes under Section 59A of the Code), or other tax, charge, fee, levy
or assessment of the same or of a similar nature, including any interest,
penalty, or addition thereto, whether disputed or not. The term "Tax Return"
means any return, declaration, report, claim for refund, or information return
or statement relating to Taxes or any amendment thereto, and including any
schedule or attachment thereto.
6.1.13 Personnel. Seller's Disclosure Letter includes a complete and
---------
correct list as of the date hereof of the names, positions and locations of all
employees or any other Station and broadcast personnel (whether employees or
independent contractors or employees of a time broker) of the Stations, which
sets forth the current salaries of all such employees and any other compensation
arrangements (including, but not limited to, terms and conditions of employment,
accrued vacation and accrued sick time) with all General Managers, Station
Managers, General Sales Managers, Local Sales Managers, National Sales Managers,
Program Directors, Business Managers and Traffic Managers (collectively,
"Station Management") and all on-air broadcast personnel of the Stations and
indicates which of those employees, Station Management or on-air broadcast
personnel is a party to an employment or consulting or similar contract which is
not terminable upon notice of 60 days' or less without additional cost to the
employer.
6.1.14 Contracts The Contracts are the only contractual agreements
---------
necessary to carry out the business and operations of the Stations as currently
conducted. Each Contract with respect to the Stations is a valid and binding
obligation of Seller, and is in full force and effect.
18
Seller and each other party to such Contract with respect to the Stations have
performed in all material respects the obligations required to be performed by
them and are not (with or without lapse of time or the giving of notice, right
to cure, or both) in material breach or default thereunder. Schedule 1.1.3
--------------
identifies, as to each Contract with respect to the Stations listed thereon,
whether the consent of the other party thereto is required in order for such
Contract to continue in full force and effect upon the consummation of the
transactions contemplated hereby.
6.1.15 ERISA Compliance. Except as stated in Seller's Disclosure
----------------
Letter, neither the Seller nor any other trades or businesses under common
control, or which are treated as a single employer with Seller under Section
414(b), (c), (m) or (o) of the Code (collectively, the "ERISA Group") has
contributed or been obligated to contribute to any "multi employer plan" as such
term is defined in Section 3(37) or Section 4001(a)(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), except as
disclosed in Seller's Disclosure Letter. Included in Seller's Disclosure Letter
are written lists of all "employee benefit plans" within the meaning of Section
3(3) of ERISA and bonus, pension, profit sharing, deferred compensation,
incentive compensation, stock ownership, stock purchase, stock option, phantom
stock, retirement, vacation, severance, disability, death benefit,
hospitalization, salary continuation, educational assistance, club memberships,
company car (other than those provided to employees pursuant to employment
agreements listed on Schedule 1.1.3) insurance or other plans or arrangements or
--------------
understandings providing benefits to any present or former employee or
contractor of the Stations maintained by Seller, or as to which Seller (with
respect to such individuals) has any liability or obligation (collectively,
"Employee Benefit Plans").
6.1.16 Labor Seller has not 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. Except as stated
in the Seller's Disclosure Letter, Seller, with respect to the Stations, (a) is
and has been in substantial compliance with all applicable laws regarding
employment and employment practices (including, without limitation, ERISA), and
those laws relating to terms and conditions of employment, wages and hours, and
plant closing, occupational safety and health and workers' compensation and is
not engaged, nor has it engaged, in any unfair labor practices; (b) has no, and
has not had any, unfair labor practice claims, charges or complaints pending or
threatened against it before the FCC or the National Labor Relations Board; (c)
has no, and has not had any, grievances pending or threatened against it; and
(d) has no, and has not had any, charges pending or threatened against it before
the Equal Employment Opportunity Commission or any state or local agency
responsible for the prevention of unlawful employment practices. There is no
labor strike, slowdown, work stoppage or lockout actually pending or threatened
against or affecting the Stations. No union organizational campaign or
representation petition is currently pending with respect to any of the
employees working for the Stations.
6.1.17 Patents, Trademarks, Etc. Schedule 1.1.4 sets forth all
------------------------- --------------
Intellectual Property used in the business and operations of the Stations
(whether owned, leased or licensed by Seller). Seller has, and upon the Closing,
Buyer will have, good and marketable title to all Intellectual Property owned by
Seller, free and clear of any and all Liens. Seller has not received any notice
of
19
any claimed conflict, notice of cease and desist, suit, complaint, settlement,
litigation, judgment, claim, proceeding, action, violation or infringement
pertaining to such Intellectual Property rights. None of such material
Intellectual Property rights is being infringed by any third party. The
operation of Seller's business does not infringe on the Intellectual Property
rights of any other person.
6.1.18 Absence of Certain Changes or Events. Except as
------------------------------------
contemplated or expressly permitted by this Agreement, since the date of the
last relevant unaudited balance sheet pertaining to each of the Stations (as
revealed in Seller's Disclosure Letter) there has not been: (a) any material
damage, destruction or loss of any kind with respect to the Stations not covered
by valid and collectible insurance, nor has there been any event or circumstance
which has had, or reasonably could be expected to have, a material adverse
effect on the assets or the business or operations of the Stations; (b) with
respect to the Stations, the execution of any agreement with any Station
Management or broadcast personnel (whether an employee or independent
contractor) providing for his/her employment, or any increase in compensation or
severance or termination of benefits payable or to become payable by Seller, to
any officer, Station Management, or broadcast personnel (whether an employee or
independent contractor), or any increase in benefits under any collective
bargaining agreement, except in any case in the ordinary course of business
consistent with prior practice and except as permitted by Section 8.1.1; or (c)
any change by Seller in its financial or tax accounting principles or methods,
except insofar as required by GAAP or applicable law.
6.1.19 Broker, Commission or Finder's Fees. Except with respect to
-----------------------------------
any fees payable by Seller to Star Media Group, Inc., for the benefit of ▇▇▇▇▇
▇▇▇▇▇, neither Seller nor any entity acting on behalf of Seller has agreed to
pay a broker, commission, finder's fee or similar payment in connection with
this Agreement or any matter related hereto.
6.1.20 Full Disclosure. No representation or warranty by Seller
---------------
contained in this Agreement (including the Schedules hereto) or in Seller's
Disclosure Letter or in any certificate furnished pursuant to this Agreement
contains or will contain any untrue statement of a material fact, or omits or
will omit to state any material fact necessary, in light of the circumstances
under which it was or will be made, in order to make the statements herein or
therein not misleading.
6.1.21 Sellers' Financial Condition. Except as stated in Seller's
----------------------------
Disclosure Letter, 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 threatened, and Seller has
made no assignment for the benefit of creditors, fraudulent conveyances,
preferences, or transfers, nor has the Seller taken any action with a view to,
or which would constitute a basis for, the institution of any such insolvency
proceedings. Seller shall use the proceeds received under this agreement to
pay, satisfy, or discharge, or to make appropriate provision for the payment of
any and all creditors of Seller prior to making any distribution to its
shareholders or managers or members.
20
6.1.22 Books and Records. The books, records and accounts of
-----------------
Seller maintained with respect to the Stations accurately and fairly reflect, in
reasonable detail and in all material respects, the transactions and the assets
and liabilities of Seller. Seller has not engaged in any transaction,
maintained any bank account or used any of the funds of Seller except for
transactions, bank accounts and funds which have been and are reflected, in all
material respects, in the normally maintained books and records of the Stations.
6.1.23 Barter Arrangements. Seller's Disclosure Letter accurately
-------------------
describes all barter, trade or similar arrangements for the sale of advertising
for other than cash and all Trade Agreements relating to the business or
operations of the Stations which are outstanding as of the date hereof. With
respect to the Stations, all such advertising time sold under barter, trade or
similar arrangements for other than case or under Trade Agreements may be
preempted by advertising time that is sold for cash. All such barter, trade or
similar arrangements for the sale of advertising time for other than cash and
all Trade Agreements have been entered into in the ordinary course of business
consistent with past practices.
6.1.24 No Third Party Options. There are no existing agreements
----------------------
with, operations or rights of, or commitments to any person other than Buyer to
acquire any of the Station Assets or any interest therein.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
7.1 Representations and Warranties of Buyer.
---------------------------------------
Buyer hereby makes the following representations and warranties to
Seller, each of which is true and correct as of the date hereof, and shall be
true and correct as of the Closing Date, and shall be unaffected by any
investigation heretofore or hereafter made by Seller:
7.1.1 Organization and Standing. Buyer is a corporation duly
-------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
7.1.2 Authorization and Binding Obligation. Buyer has all
------------------------------------
requisite corporate power and authority to enter into and perform this Agreement
and the transactions contemplated hereby, and to own or lease the Station Assets
and to carry on the business and operations of the Stations upon the
consummation of the transactions contemplated by this Agreement. Buyer's
execution, delivery and performance of this Agreement and the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on behalf of Buyer and constitutes the valid and binding
obligation of Buyer, enforceable in accordance with its terms.
21
7.1.3 Qualification. To Buyer's knowledge, there is no fact,
-------------
allegation, condition, or circumstance relating to Buyer that could reasonably
be expected to prevent the grant of the FCC Consent. Buyer knows of no fact
that would, under the Communications Act or the rules, regulations and policies
of the FCC, disqualify Buyer from becoming the licensee of the Stations. There
are no proceedings, complaints, notices of forfeiture, claims or 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 or delay the FCC consent.
7.1.4 Absence of Conflicting Agreements or Required Consents.
------------------------------------------------------
Except for the FCC Consent contemplated herein and except as stated in Buyer's
Disclosure Letter, the execution, delivery and performance of this Agreement by
Buyer shall not: (i) violate or conflict with any of the terms, conditions or
provisions of the Articles of Incorporation or By-laws of Buyer; (ii) require
the consent of any third party not affiliated with Buyer; (iii) violate any
applicable statute, ordinance, law, judgment, settlement, order, injunction,
decree, rule, regulation or ruling of any Governmental Entity applicable to
Buyer; and (iv) either alone or with the giving of notice or the passage of
time, violate the terms, conditions or provisions of, or constitute a default or
breach under, any agreement, instrument, license or permit to which Buyer is now
subject.
7.1.5 Financial Ability. Buyer has the financial ability and/or
-----------------
resources to consummate the transactions contemplated hereunder.
7.2 Litigation: Compliance with Law. There is no litigation,
-------------------------------
administrative action, suit, claim, arbitration or other proceeding, or
petition, complaint or investigation before any court or Governmental Entity
pending against Buyer that would adversely affect Buyer's ability to perform its
obligations pursuant to this Agreement or the agreements to be executed by Buyer
in connection herewith. Buyer has committed no violation of any applicable law,
statute, regulation or ordinance or any other requirement of any Governmental
Entity or court which would have an adverse effect on Buyer or its ability to
perform its obligations pursuant to this Agreement or the agreements to be
executed in connection herewith.
7.3 Broker, Commission or Finder's Fees. Neither Buyer nor any entity
-----------------------------------
acting on behalf of Buyer has agreed to pay a broker, commission, finder's fee
or similar payment in connection with this Agreement or any matter related
hereto.
7.4 Full Disclosure. No representation or warranty by Buyer contained in
---------------
this Agreement (including the Schedules hereto) or in the Buyer's Disclosure
Letter or in any certificate furnished pursuant to this Agreement contains or
will contain any untrue statement of a material fact, or omits or will omit to
state any material fact necessary, in light of the circumstances under which it
was or will be made, in order to make the statements herein or therein not
misleading.
ARTICLE 8
22
COVENANTS OF SELLER
-------------------
8.1 Seller Covenants. Seller covenants and agrees with Buyer that,
----------------
pending the Closing and except as otherwise agreed to in writing by Buyer:
8.1.1 Conduct of Stations prior to the Closing Date. Seller, from
---------------------------------------------
and after the date hereof through the Closing Date, shall:
(a) use commercially reasonable efforts to maintain its
present business organization, keep available the services of its present
employees (including the general manager for at least one month after the TBA
Commencement Date) and those of its independent contractors, preserve its
relationships with its customers and others having business relationships with
the Station, and refrain from materially and adversely changing any of its
business practices and policies (including, but not limited to, advertising
(including substantially the same amount of cash expenditure), marketing,
promotion, pricing, purchasing, personnel, sales and budget practices and
policies).
(b) maintain its books of account and records in the usual and
ordinary manner and in accordance with GAAP, except as otherwise provided
herein;
(c) notify Buyer if the regular broadcast transmission of the
Stations from its main transmitting facilities at full authorized effective
radiated power is interrupted for a period of more than four (4) consecutive
hours or for an aggregate of ten (10) or more hours in any continuous three-day
period;
(d) operate in the usual and ordinary course of business in
accordance with past practices and conduct its business in all material respects
in compliance with the terms of the Station Licenses and all applicable laws,
rules, and regulations, including, without limitation, the applicable rules and
regulations of the FCC;
(e) use, repair, and, if necessary, replace any of the
Stations' studio and transmission assets in a reasonable manner consistent with
Seller's historical practice and maintain the Station Assets in substantially
their current condition, ordinary wear and tear excepted;
(f) maintain insurance in accordance with Section 6.1.7;
(g) not, without the prior written consent of Buyer, incur any
debts, obligations or liabilities (absolute, accrued, contingent, or otherwise),
which include obligations (monetary or otherwise) to be performed by Buyer that
exceed Ten Thousand Dollars ($10,000) individually or Twenty-Five Thousand
Dollars ($25,000) in the aggregate;
(h) not lease, sell, convey, transfer, assign, license,
transfer, encumber, mortgage, pledge, or subject to a Lien, claim, or
encumbrance (other than Permitted Liens) any of
23
the Station Assets or sell or transfer any of the Station Assets without
replacing such Station Assets with assets of substantially the same value and
utility;
(i) not, without the prior written consent of Buyer, (A)
modify or extend any Contracts (excluding Contracts for the sale of advertising
time for cash) or (B) enter into any new Contracts (excluding Contracts for the
sale of advertising time for cash) the payments under which exceed Ten Thousand
Dollars ($10,000) individually or Twenty-Five Thousand Dollars ($25,000) in the
aggregate;
(j) not make or grant any general wage or salary increase or
generally materially modify the employees', the Station Management's or on-air
personnel's terms and conditions of employment; provided, however, that Seller
shall be permitted to make bonus payments to any employees including Station
Management and on-air personnel;
(k) not make any change in (i) the accounting principles,
methods, or practices followed by it or depreciation or amortization policies or
rates or (ii) any Tax election or settle any Tax audit or controversy relating
to the Station Assets;
(l) not make any loans or make any dividends or distributions
other than of Excluded Assets;
(m) other than in the ordinary course of business, not
cancel, discharge, or compromise any debt or claim, or waive or release any
right, of material value;
(n) not disclose, directly or indirectly, to any person or
entity (other than Buyer and its representatives) any confidential or
proprietary information, except as may otherwise be required by law;
(o) use commercially reasonable efforts to maintain the
present format of the Stations and with programming consistent with past
practices;
(p) other than in the ordinary course of business, not
increase the number of regularly scheduled commercial units run during the day-
parts on the Stations (other than changes in the number of commercial units run
during any day-part as a result of operating difficulties that require
commercial units to be broadcast at times other than as scheduled); and
(q) agree to do any of the foregoing.
8.2 Access. Upon reasonable written notice from Buyer, Seller shall (a)
------
give or cause the Stations to give Buyer and Buyer's counsel, accountants,
engineers and other representatives, including environmental consultants,
reasonable access during normal business hours to all of Seller's properties,
books, Contracts, Trade Agreements, reports and records including financial
information and tax returns relating to each and all of the Stations, and to all
real estate, buildings
24
and equipment relating to the Stations, in order that Buyer may have full
opportunity to make such investigation, including, but not limited to,
environmental assessments, as it desires of the affairs of the Stations and (b)
furnish Buyer with information and copies of all documents and agreements
including, but not limited to, financial and operating data and other
information concerning the financial condition, results of operations and
business of the Stations, that Buyer may reasonably request. The rights of Buyer
under this Section shall not be exercised in such a manner as to interfere
unreasonably with the business of the Stations; provided, however, that such
investigations shall not adversely effect or diminish the effect of any and all
representation and warranties made by Seller herein.
8.3 Other Consents. Seller will use its best efforts to obtain all
--------------
consents, authorizations, or approvals required for the consummation of the
transactions contemplated by this Agreement.
8.4 No Inconsistent Action. Seller shall not take any action which is
----------------------
inconsistent with its obligations under this Agreement.
8.5 Notification. Seller shall promptly notify Buyer in writing of (a)
------------
the failure of Seller or any employee, servant, or agent of Seller to comply
with or satisfy in any material respect any covenant, condition or agreement to
be complied with hereunder; (b) the occurrence of any event that would entitle
Buyer to terminate this Agreement pursuant to Section 16.1; or (c) any overt
threat or actual resignation or termination of any Station Management on-air
personnel at the Stations.
8.6 Updating of Schedules. From time to time after FCC Consent and prior
---------------------
to the Closing, Seller will promptly supplement or amend the Schedules and
Seller's Disclosure Letter delivered in connection herewith with respect to any
matter which exists or occurs after the date of this Agreement and which, if
existing or occurring at or prior to the date of this Agreement, would have been
required to be set forth or described in the Schedules or Seller's Disclosure
Letter or which is necessary to correct any information therein; provided,
however, that The provisions of this Section are informational only and Buyer
shall not be bound to the terms of any changed Schedules unless they are
incorporated into this Agreement by a written amendment signed by Buyer.
8.7 Enforcement of Agreements. During the period prior to Closing, Seller
--------------------------
shall enforce, if necessary, the terms of any and all Contracts.
8.8 FCC Filings. Seller shall file or cause to be filed on a current
-----------
basis until the Closing Date all applications, fees, reports and documents
required to be filed with the FCC with respect to the Stations. Copies of each
such application, fee filing, report and document filed between the date hereof
and the Closing Date shall be furnished to Buyer promptly after its filing.
8.9 Indemnification.
---------------
25
(a) From and after the Closing Date, Seller shall defend, indemnify
and hold Buyer, its officers, directors, employees, agents and Affiliates, and
its assigns forever harmless from and against all costs, suits, actions, claims,
settlements, judgments, losses and damages (including reasonable attorney fees
at all levels) incurred by Buyer or such officers, directors, employees, agents,
Affiliates or assigns as a result of or arising out of (i) the breach by Seller
of any of its representations and warranties contained in this Agreement, (ii)
the failure by Seller to perform its covenants set forth in this Agreement,
(iii) the conduct of the business or operations of the Stations or the use or
ownership of the Station Assets on or before the Closing Date, including any and
all liabilities arising under any of the Station Licenses or Contracts which
relate to events occurring prior to the Closing Date, (iv) any and all
obligations or liabilities of Seller under any contract or agreement not
expressly assumed by Buyer pursuant to the terms hereof, and (v) any acts or
omissions of negligence, gross negligence, illegal or wrongful conduct, or any
claims for personal injury, death, or property damage committed by Seller or its
agents, servants, and employees, which accrued prior to the Closing Date;
provided, however, that Seller shall not be required to defend any claims
asserted by Buyer hereunder unless and until the aggregate amount of such claim
equals or exceeds $50,000; and, provided, further, that the aggregate amount of
all claims asserted by Buyer hereunder shall in no event exceed $500,000. This
covenant shall survive the Closing Date, and the expiration or termination of
this Agreement, subject to Section 18.1.
(b) Seller hereby covenants and agrees that if, during the term of
this Agreement, Seller is or becomes obligated to indemnify Buyer under this
Section 8.10, Seller shall not sell, lease, transfer or otherwise dispose of,
whether in one transaction or in a series of transactions, all or substantially
all of its assets.
(c) Buyer shall give prompt written notice to Seller of any claim
asserted by Buyer hereunder; provided, however, that failure to give such notice
or delaying such notice shall not affect Buyer's right to indemnification and
Seller's obligation to indemnify as set forth in this Agreement, except to the
extent Seller's ability to remedy, contest, defend or settle with respect to
such claim is thereby prejudiced. The obligations and liabilities of the
parties with respect to any claim asserted hereunder shall be subject to Section
18.1.
8.10 Asset Purchase Agreement. Seller shall place a complete copy of this
------------------------
Agreement in the local public inspection file of each of the Stations and shall
append a complete copy of this Agreement to each application to the FCC for the
FCC Consent.
8.11 Title Insurance. Within Forty-Five (45) days of the execution of this
---------------
Agreement, Seller shall provide Buyer with a draft ALTA title insurance binder
with respect to the Owned Real Estate. If Buyer finds that the preliminary
binder reveals title defects which adversely effect the use, value and/or
operation of the Station or the Station Assets, then Seller shall have up to
five (5) days prior to the Closing to cure said defects.
8.12 Covenant Not to Compete. Seller and its principals agree that for a
-----------------------
period of two (2) years after the Closing Date, neither it, nor any of its
Affiliates, will, directly or indirectly, own,
26
manage, operate, control or participate in the ownership, management, operation
or control of any business, whether in corporate, proprietorship or partnership
form or otherwise, which is engaged in the operation of radio stations anywhere
within the composite 1mV/m signal contour of the Stations; provided, however,
that after the first anniversary of the Closing, nothing contained herein shall
prevent the Seller or its principles from engaging in any of the foregoing with
respect to the stations in the Chicago market as specified on Schedule 8.12
-------------
hereto.
ARTICLE 9
COVENANTS OF BUYER
------------------
9.1 Buyer Covenants. Buyer covenants and agrees that, pending the Closing
---------------
and except as otherwise agreed to in writing by Seller:
9.1.1 Notification. Buyer shall promptly notify Seller in writing of
------------
(a) any litigation, arbitration or administrative proceeding pending or, to its
knowledge, threatened against Buyer which challenges the transactions
contemplated hereby, (b) the failure of Buyer, or any employee or agent of Buyer
to comply with or satisfy in any material respect any covenant, condition or
agreement to be complied with or be satisfied by it hereunder or (c) the
occurrence of any event that would entitle Seller to terminate this Agreement
pursuant to Section 16.1.
9.1.2 No Inconsistent Action. Buyer shall not take any action which
----------------------
is inconsistent with its obligations under this Agreement.
9.1.3 Post-Closing Access. Buyer, for a period of one (1) year
-------------------
following the Closing Date, shall make available during normal business hours
for audit and inspection by Seller and Seller's representatives, for any
reasonable purpose and upon reasonable notice, all records, files, documents and
correspondence transferred to it hereunder relating to the pre-closing period.
All information, records, files, documents and correspondence made available or
disclosed under this Section 9.1.3 shall be kept confidential. Buyer shall
assume cost of all expenses incurred in connection with this Section.
9.1.4 Other Consents. Buyer will use its best efforts to obtain all
--------------
necessary consents, authorizations, or approvals, in each case, required for
Buyer's consummation of the transactions contemplated by this Agreement.
ARTICLE 10
JOINT COVENANTS
---------------
Buyer and Seller covenant and agree that, pending the Closing and except as
otherwise agreed to in writing, they shall act in accordance with the following:
27
10.1 Confidentiality. Buyer and Seller shall not disseminate, disclose,
---------------
reveal, divulge, inform, or communicate, directly or indirectly, through any
person or entity, including, but not limited to, its managers, members,
officers, directors, employees, representatives, agents, advisors, and
attorneys, and shall preserve and keep confidential all information
("Confidential Information") obtained by any of them with respect to the other
party hereto in connection with this Agreement and the negotiations preceding
this Agreement, and will use such information solely in connection with the
transactions contemplated by this Agreement, and if the transactions
contemplated hereby are not consummated for any reason, each shall return to
each other party hereto, without retaining a copy thereof, any schedules,
contracts, records, properties, extracts, summaries, documents or any other
written information obtained from such other party in connection with this
Agreement and the transactions contemplated hereby except to the extent required
or useful in connection with any claim made with respect to the transactions
contemplated by this Agreement or the negotiation thereof. Notwithstanding the
foregoing, no party shall be required to keep confidential or return any
information which (a) is known or available through other lawful sources, not
bound by a confidentiality agreement with the disclosing party, (b) is or
becomes publicly known through no fault of the receiving party or its agents,
(c) is required to be disclosed pursuant to an order or request of a judicial or
government authority (provided the non-disclosing party is given reasonable
prior notice such that it may seek, at its expense, confidential treatment of
the information to be disclosed), (d) is developed by the receiving party
independently of the disclosure by the disclosing party or (e) is required to be
disclosed under applicable law or rule, as determined by counsel for the
receiving party. This covenant shall survive the Closing Date, and the
expiration or termination of this Agreement.
10.2 Cooperation. Buyer and Seller shall cooperate fully with one another
-----------
in taking any actions, including actions to obtain the required consent of any
Governmental Entity or any third party necessary or helpful to accomplish the
transactions contemplated by this Agreement.
10.3 Control of Stations. Prior to Closing, Buyer shall not, directly or
-------------------
indirectly, control or direct the business or operations of the Stations.
10.4 Bulk Sales Laws. Buyer hereby waives compliance by Seller with the
---------------
provisions of the "bulk sales" or similar laws of any state. Seller shall defend
and indemnify Buyer and hold it forever harmless from any and all losses,
settlements, judgments, actions, suits, claims, costs, damages and expenses
(including but not limited to, reasonable attorneys' fees at all levels)
sustained by Buyer as a result of any failure of Seller to comply with any "bulk
sales" or similar laws. This covenant shall survive the Closing Date and the
expiration or termination of this Agreement.
10.5 Public Announcements. Prior to the Closing, neither Buyer nor Seller
--------------------
shall issue any press release or make any public disclosure with respect to the
transactions contemplated by this Agreement without the prior written approval
of the other party, except (a) Buyer and Seller may make any disclosure as may
be required by applicable law or by obligations pursuant to any listing
agreement with any securities exchange or any stock exchange regulations; (b)
Buyer and Seller may each continue such communications with employees,
customers, suppliers, franchises, lenders,
28
lessors, shareholders, and other particular groups as may be legally required or
necessary or appropriate and not inconsistent with the best interests of the
other party or the prompt consummation of the transactions contemplated herein
and (c) Seller may, at its sole discretion, disclose such transaction to Chicago
Tribune, twenty-four (24) hours prior to the date of this Agreement.
10.6 Condition of Real Estate. Buyer may, at its sole expense, conduct
------------------------
environmental studies, title examinations, and land surveys (the "Studies") of
the Real Estate. Buyer shall notify Seller if the Studies disclose (a) an
environmental liability constituting a breach of the representations and
warranties in Section 6.1.11, (b) evidence of encroachments that materially and
adversely affect the use of the Real Estate or (c) any other matters that
materially and adversely affect title to the Real Estate. Seller shall promptly
commence remedial action at its expense to cure the condition giving rise to
such matter and cure such condition prior to the Closing; provided, however,
that Seller shall not be obligated to spend (but may choose to spend) more than
$50,000 in the aggregate in its attempts to cure all such conditions. Seller
shall notify Buyer within 30 days after its receipt of the Buyer notice if it
determines that it is unable or unwilling to cure such conditions for $50,000 or
less and chooses not to attempt to cure such conditions, in which case Buyer may
elect (i) to terminate this Agreement or (ii) to waive such obligations and
receive, at Closing, a reduction in the Purchase Price of an amount that is
equal to or less than $50,000.00; provided, however, that if any dispute arises
between the parties with respect to any remedial action or the cost thereof, the
parties shall, within a reasonable time after such dispute arises (A) submit the
dispute to an independent environmental consultant selected jointly by the
parties, or (B) if, the parties fail to jointly select an independent
environmental consultant, each party must submit the name of an independent
environmental consultant to the other party and the consultants so selected
shall then jointly select an independent environmental consultant; and provided,
further, that (X) the decision of the selected independent environmental
consultant shall be binding and conclusive as to all parties to the dispute and
(Y) any and all costs and expenses incurred by the parties in connection with
such dispute shall be borne equally between the parties. If this Agreement is
terminated in accordance with the immediately preceding sentence, no party shall
have any liability to the other with respect to such termination. Either party
may extend the Closing by not more than 30 days, subject to Section 16.1(g)
---------------
hereto, if either party reasonably determines that any necessary remedial action
can be completed during such extended period.
ARTICLE 11
CONDITIONS OF CLOSING BY BUYER
------------------------------
The obligations of Buyer hereunder are, at its option, subject to
satisfaction at or prior to the Closing Date of all of the following
conditions:
11.1 Representations and Warranties. All representations and warranties of
------------------------------
Seller made in Seller's Disclosure Letter, or in this Agreement or in any
Exhibit, Schedule or document delivered pursuant hereto, shall be true and
complete in all material respects as of the date hereof and on and
29
as of the Closing Date as if made on and as of that date, except for changes
expressly permitted or contemplated by the terms of this Agreement.
11.2 Compliance with Agreement. All of the terms, covenants and conditions
-------------------------
to be complied with and performed by Seller on or prior to the Closing Date
shall have been complied with or performed in all material respects to the
satisfaction of the Buyer.
11.3 Third Party Consents and Approvals; Estoppel Certificates. Seller
---------------------------------------------------------
shall have obtained all third-party consents and approvals, if any, required for
the transfer or continuance, as the case may be, of the Contracts on Schedule
--------
1.1.3 (and contracts that would have been on Schedule 1.1.3 had they been in
----- ---------------
existence on the date of this Agreement), and such third parties have provided
estoppel certificates, affidavits, consents, non-disturbance agreements, and/or
written clarifications of the rights of Buyer thereunder, all in form and
substance reasonably satisfactory to Buyer.
11.4 Closing Certificates. Buyer shall have received a certificate, dated
--------------------
as of the Closing Date, from the Seller, executed by an authorized officer of
Seller certifying, in such detail as Buyer may reasonably request that the
conditions set forth in Sections 11.1 and 11.2 hereto have been fulfilled.
11.5 Governmental Consents.
---------------------
11.5.1 FCC. The FCC Consent shall have been issued by the FCC
---
without any conditions that would otherwise permit Buyer to terminate this
Agreement pursuant to Section 15.1(v), below, and each such FCC Consent shall
have become a Final Order.
11.5.2 Other Consents. All other material authorizations, consents,
--------------
approvals, and clearances of any Governmental Entity required to permit the
consummation of the transactions contemplated by this Agreement shall have been
obtained.
11.6 Adverse Proceedings. No injunction, order, stipulation, settlement,
-------------------
writ, decree or judgment of any court, agency or other Governmental Entity shall
have been rendered against Seller or Buyer which would render it unlawful, as of
the Closing Date, to effect the transactions contemplated by this Agreement in
accordance with its terms.
11.7 Closing Documents. Seller shall have executed and delivered or caused
-----------------
to be delivered to Buyer, on the Closing Date (a) all special warranty deeds,
bills of sale, endorsements, titles, licenses, assignments and other instruments
of conveyance and transfer consistent with the terms hereof and otherwise
reasonably satisfactory in form and substance to Buyer, effecting the sale,
transfer, assignment and conveyance of the Station Assets to Buyer and (b) all
other documents, instruments, certificates and agreements required of Seller
under the terms of this Agreement.
30
11.8 Material Adverse Change. Except for changes caused by Buyer under
-----------------------
the TBA, material adverse change in the business, assets, operations, prospects
or condition of the Stations (financial or otherwise) shall have occurred.
11.9 Opinion of Counsel. Buyer shall have received a written opinion of
------------------
Seller's counsel dated as of the Closing Date as to the matters set forth in
Exhibit 11.9 hereto in form and substance reasonably satisfactory to Buyer.
------------
11.10 Real Estate Matters. Buyer shall be reasonably satisfied that the
-------------------
Real Estate conforms in all material respects to the American with Disabilities
Act.
ARTICLE 12
CONDITIONS OF CLOSING BY SELLER
-------------------------------
The obligations of Seller hereunder are, at its option, subject to
satisfaction at or prior to the Closing Date of all of the following
conditions:
12.1 Representations, Warranties and Covenants. All representations and
-----------------------------------------
warranties of Buyer made in this Agreement or in Buyer's Disclosure Letter or in
any Exhibit, Schedule or document delivered pursuant hereto, shall be true and
complete in all material respects as of the date hereof and on and as of the
Closing Date as if made on and as of that date, except for changes expressly
permitted or contemplated by the terms of this Agreement and except those given
as of a specified date.
12.2 Compliance with Agreement. All the terms, covenants, and conditions
-------------------------
to be complied with and performed by Buyer on or prior to the Closing Date shall
have been complied with or performed in all material respects.
12.3 Certifications, etc. Seller shall have received a certificate, dated
-------------------
as of the Closing Date, from the Buyer, executed by an authorized officer of
Buyer certifying, in such detail as Seller may reasonably request that the
conditions set forth in Sections 12.1 and 12.2 hereto have been fulfilled.
12.4 Governmental Approval.
---------------------
12.4.1 FCC. The FCC Consent shall have been issued by the FCC and
---
each such FCC Consent shall have become a Final Order.
12.4.2 Other Consents. All other material authorizations, consents,
--------------
approvals, and clearances of any Governmental Entity required to permit the
consummation of the transactions contemplated by this Agreement shall have been
obtained.
31
12.5 Adverse Proceedings. No injunction, order, stipulation, settlement,
-------------------
decree or judgment, writ, of any court, agency or other Governmental Entity
shall have been issued or rendered, as the case may be, against Buyer or Seller
which would render it unlawful, as of the Closing date, to effect the
transactions contemplated by this Agreement in accordance with its terms.
12.6 Closing Documents. Buyer shall have delivered or caused to be
-----------------
delivered to Seller, on the Closing Date, an assumption agreement with respect
to Assumed Liabilities reasonably satisfactory in form and substance to Seller.
12.7 Opinion of Buyer's Counsel. Seller shall have received a written
--------------------------
opinion of Buyer's counsel dated as of the Closing Date as to the matters set
forth in Exhibit 12.7 hereto in form and substance reasonably satisfactory to
------------
Seller.
ARTICLE 13
DOCUMENTS TO BE DELIVERED AT THE CLOSING
----------------------------------------
13.1 Documents to be Delivered by Seller. At the Closing, Seller will
-----------------------------------
deliver to Buyer the following, at the expense of Seller and in proper form for
recording when appropriate:
13.1.1 Transfer Documents. Such bills of sale, assignments, general
------------------
warranty deeds and other good and sufficient instruments of transfer as Buyer
may reasonably request in order to convey and transfer to Buyer title to the
Station Assets (collectively, the "Transfer Documents").
13.1.2 Certified Resolutions. Certified resolutions of Seller and
---------------------
General Partner of Seller approving the execution and delivery of this Agreement
and each of the other documents delivered by Seller pursuant thereto and
authorizing the consummation of the transactions contemplated hereby and
thereby.
13.1.3 Officer's Certificate. A certificate, dated as of the
---------------------
Closing Date, executed on behalf of the Seller in the form described in Section
11.4.
13.1.4 Opinions. Written opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ &
--------
▇▇▇▇▇▇▇▇ Chartered in substantially the form attached hereto as Exhibit 11.9,
------------
dated as of the Closing Date.
13.1.5 Good Standing Certificates. Governmental certificates
--------------------------
showing that Seller is duly incorporated and in good standing in the state of
its incorporation and in good standing in each jurisdiction where such
qualification is necessary, certified as of a date not more than ten (10) days
before the Closing Date.
13.1.6 Other Documents. Such additional information and materials
---------------
as Buyer shall reasonably request.
32
13.2 Documents to be Delivered by Buyer. At the Closing, Buyer will
----------------------------------
deliver to Seller, at the expense of Buyer:
13.2.1 Purchase Price. Evidence of a wire transfer in immediately
--------------
available funds of the amount of the Purchase Price, subject to any adjustments.
13.2.2 Assumption Agreement. An assumption agreement relating to
--------------------
Buyer's assumption of the Assumed Liabilities in form and substance mutually
agreeable to the parties hereto.
13.2.3 Certified Resolutions. Certified resolutions of the Board
---------------------
of Directors of Buyer approving the execution and delivery of this Agreement and
each of the other documents delivered by Buyer pursuant hereto and authorizing
the consummation of the transactions contemplated hereby and thereby.
13.2.4 Officer's Certificate. A certificate, dated the Closing
---------------------
Date, executed on behalf of the Buyer in the form described in Section 12.3.
13.2.5 Opinion. A written opinion of ▇▇▇▇▇▇▇▇▇ & Associates, P.A.
-------
in substantially the form attached hereto as Exhibit 12.7, dated as of the
------------
Closing Date.
13.2.6 Good Standing Certificates. Governmental certificates
--------------------------
showing that Buyer is duly incorporated and in good standing in the state of its
incorporation certified as of a date not more than ten (10) days before the
Closing Date.
13.2.7 Other Documents. Such additional information and materials
---------------
as Seller shall reasonably request.
ARTICLE 14
TRANSFER TAXES: FEES AND EXPENSES
---------------------------------
14.1 Expenses. Except as set forth in Sections 14.2 and 14.3 below, each
--------
party hereto shall be solely responsible for all costs and expenses incurred by
it in connection with the negotiation, preparation and performance of and
compliance with the terms of this Agreement.
14.2 Transfer Taxes and Similar Charges. All recordation, transfer
----------------------------------
and documentary taxes and fees, stamps, and any excise, sales or use taxes, and
all similar costs of transferring the Station Assets in accordance with this
Agreement the shall be borne equally by Seller and Buyer. Buyer and Seller
shall, in good faith, attempt to calculate all such taxes and fees prior to
Closing and to settle their respective obligations therefore on or before the
Closing Date.
33
14.3 Governmental Filing or Grant Fees. Any filing or grant fees
---------------------------------
imposed by any governmental authority, the consent of which is required for the
consummation of the transactions contemplated hereby, including, but not limited
to, the FCC shall be borne equally by Buyer and Seller.
ARTICLE 15
ESCROW DEPOSIT, LIQUIDATED DAMAGES, SPECIFIC PERFORMANCE
--------------------------------------------------------
15.1 Escrow Deposit. Within five (5) business days of the execution
--------------
and delivery of this Agreement by all Parties, Buyer will deposit with ▇▇▇▇
▇▇▇▇▇▇▇ & Company, ("▇▇▇▇▇▇▇ Money Escrow Agent"), an irrevocable Letter of
Credit or cash in the amount of Four Hundred Seventy Thousand and No/100 Dollars
($470,000) (the "▇▇▇▇▇▇▇ Money Escrow Deposit"). The ▇▇▇▇▇▇▇ Money Escrow
Deposit shall be held and disbursed by ▇▇▇▇▇▇▇ Money Escrow Agent pursuant to
the terms of the ▇▇▇▇▇▇▇ Money Escrow Agreement, appended hereto as Exhibit 15.1
------------
(the "▇▇▇▇▇▇▇ Money Escrow Agreement"), which ▇▇▇▇▇▇▇ Money Escrow Agreement has
been entered into by the Seller, Buyer and ▇▇▇▇▇▇▇ Money Escrow Agent. At
closing, the ▇▇▇▇▇▇▇ Money Escrow Deposit shall be returned to Buyer. If the
Closing does not occur solely because Buyer materially breached this Agreement
or defaulted in the performance of any of its material obligations hereunder and
Seller has not breached this Agreement or defaulted in the performance of any of
its material obligations hereunder, Buyer and Seller shall execute written
instructions to the ▇▇▇▇▇▇▇ Money Escrow Agent directing it to deliver the
▇▇▇▇▇▇▇ Money Escrow Deposit to Seller as liquidated damages, as provided in
Section 15.2. If the Closing does not occur because Seller materially breached
this Agreement or defaulted in the performance of any of its material
obligations hereunder and Buyer has not breached this Agreement or defaulted in
the performance of any of its material obligations hereunder, Buyer and Seller
shall execute written instructions to the ▇▇▇▇▇▇▇ Money Escrow Agent directing
it to deliver the ▇▇▇▇▇▇▇ Money Escrow Deposit to Buyer and Buyer may seek
specific performance of this Agreement, as provided in Section 15.3.
15.2 Liquidated Damages. If this Agreement is terminated by Seller
------------------
pursuant to Section 16.1 (b)(ii), the parties agree and acknowledge that Seller
will suffer damages that are not practicable to ascertain. Accordingly, in such
event, Seller shall be entitled to the sum of $470,000, as liquidated damages,
payable solely and exclusively through the ▇▇▇▇▇▇▇ Money Escrow Agreement. The
parties agree that the foregoing liquidated damages are reasonable considering
all the circumstances existing as of the date hereof and constitute the parties'
good faith estimate of the actual damages reasonably expected to result from the
termination of this Agreement pursuant to Section 16.1 (b)(ii). Seller agrees
that, to the fullest extent permitted by law, the right to receive the ▇▇▇▇▇▇▇
Money Escrow Deposit shall be its sole and exclusive remedy if the Closing does
not occur with respect to any damages whatsoever that Seller may suffer or
allege to suffer as a result of any claim, suit, proceeding, litigation, or
cause of action asserted by Seller relating to or arising from breaches of the
representations, warranties or covenants of Buyer contained in this Agreement
and to be made or performed at or prior to the Closing. Except for a
termination pursuant to Section 16.1 (b)(ii) (for which the sole recourse of
Seller shall be as provided in this Section 15.2) or pursuant
34
to Sections 16.1(a) or 16.1(g) (for which no party shall have any liability to
the other), the termination of this Agreement shall not relieve the parties for
any liability or obligation relating to their breaches of this Agreement
occurring prior to such termination, or for any liability or obligation which
survives the expiration or termination of this Agreement.
15.3 Specific Performance. In addition to any other remedies which
--------------------
Buyer may have at law or in equity, Seller hereby acknowledges that the Station
Assets are unique, and that the harm to Buyer resulting from a breach by the
Seller of its obligations to sell the Station Assets to Buyer cannot be
adequately compensated by damages. Accordingly, Seller agrees that Buyer shall
have the right to have this Agreement specifically performed by Seller and
hereby agrees not to assert any objections to the imposition of the remedy of
specific performances by any court of competent jurisdiction.
ARTICLE 16
TERMINATION RIGHTS
------------------
16.1 Termination. This Agreement may be terminated at any time prior
-----------
to Closing as follows:
(a) by the mutual consent of Buyer and Seller;
(b) by written notice of (i) Buyer to Seller if Seller breaches
in any material respect any of its representations or warranties or defaults in
any material respect in the observance or in the due and timely performance of
any of its covenants or agreements herein contained and such breach or default
shall not be cured within thirty (30) days of the date of notice of breach or
default served by Buyer, or (ii) Seller to the Buyer if Buyer breaches in any
material respect any of its representations or warranties or defaults in any
material respect in the observance or in the due and timely performance of any
of its covenants or agreements herein contained and such breach or default shall
not be cured within thirty (30) days of the notice of breach or default served
by Seller; but such notice and cure period shall not apply in the case of
Buyer's or Seller's failure to consummate the transactions in accordance with
the terms and times specified in Section 4.1 of this Agreement;
(c) by Buyer or Seller by written notice to the other, if a court
of competent jurisdiction or other Governmental Entity shall have issued an
order, decree or ruling or taken any other action (which order, decree or ruling
the parties hereto shall use their best efforts to lift, dismiss, vacate, or set
aside), in each case permanently restraining, permanently enjoining or otherwise
prohibiting the transactions contemplated by this Agreement, and such order,
decree, ruling or other action shall have become final and nonappealable;
(d) by the party whose qualifications are not at issue, if, for
any reason, the FCC denies or dismisses any of the FCC Applications and the time
for reconsideration or court review
35
under the Communications Act with respect to such denial or dismissal has
expired and there is not pending with respect thereto a timely filed petition
for reconsideration or request for review;
(e) by written notice of Buyer to Seller if the FCC Consents contain a
condition that reduces the value of this transaction to Buyer and the time for
reconsideration or court review under the Communications Act with respect to
such condition(s) has expired without the filing with respect thereto of a
timely petition for reconsideration or request for review;
(f) by written notice of Buyer to Seller, or by Seller to the Buyer,
if the Closing shall not have been consummated within nine months after
acceptance for filing of the FCC Applications; or
(g) by either party, in the event the Closing does not occur at or
before 5:00 p.m. eastern standard time on the one year anniversary of this
Agreement.
Notwithstanding the foregoing, no party hereto may effect a termination hereof
if such party is in material default or breach of this Agreement.
ARTICLE 17
RISK OF LOSS
------------
17.1 Risk of Loss. The risk of loss or damage to the Station Assets shall
------------
be upon the Seller at all times prior to the Closing Date. In the event of loss
or damage, Seller shall promptly notify Buyer thereof, and if the lost or
damaged Station Assets are capable of being replaced or repaired for an
aggregate amount less than Twenty-Five Thousand Dollars ($25,000), then Seller
shall, at its sole cost and expense, replace or repair such Station Assets prior
to the Closing Date or deliver to Buyer at the Closing an amount in cash equal
to the cost of replacement or repair of such Station Assets, as mutually agreed
in good faith by Buyer and Seller. Notwithstanding the foregoing, if the amount
required to replace or repair such Station Assets exceeds Twenty-Five Thousand
Dollars ($25,000), Seller may elect not to replace or repair such Station
Assets; provided, however, that in such event Buyer, at its option, may elect to
terminate this Agreement or agree to accept from Seller, at the Closing, an
amount in cash equal to any and all insurance proceeds with respect to such
Station Assets, and waive any default or breach with respect to the loss or
damage. Buyer may terminate this Agreement, without any additional obligation to
Buyer or Seller, if any of the Stations is off the air or operating at less than
90 percent (90%) of its licensed power for three (3) or more consecutive days or
five (5) or more days in any thirty (30) day period. Either party may extend the
Closing Date by up to 30 days in order to allow Seller to complete any repair or
replacement, required or authorized by this Section.
ARTICLE 18
MISCELLANEOUS PROVISIONS
------------------------
36
18.1 Survival of Representations and Warranties. The representations
------------------------------------------
and warranties contained in this Agreement and in any Exhibit, Schedule,
instrument or certificate delivered pursuant hereto, shall survive the Closing
until two (2) years after the Closing Date. Buyer's rights to reimbursement or
indemnification for damages resulting from any untrue or incorrect
representation or warranty of the Seller shall not be affected or waived by any
investigation made by Buyer (or anyone on Buyer's behalf) irrespective of
whether Buyer relied upon such untrue or incorrect representation or warranty.
18.2 Certain Interpretive Matters and Definitions.
--------------------------------------------
18.2.1 In General. Unless the context otherwise requires, (a) all
----------
references to Sections, Articles or Schedules are to Sections, Articles or
Schedules of or to this Agreement, (b) each term defined in this Agreement has
the meaning assigned to it, (c) each accounting term not otherwise defined in
this Agreement has the meaning assigned to it in accordance with GAAP as in
effect on the date hereof, (d) "or" is disinjunctive but not necessarily
exclusive and (e) words in the singular include the plural and vice versa.
18.2.2 Affiliate. Unless otherwise stated, the term "Affiliate"
---------
has the meaning given it in Rule 12b-2 of Regulation 12B under the Securities
Exchange Act of 1934, as amended.
18.2.3 Money. All references to "$" or dollar amounts will be to
-----
lawful currency of the United States of America.
18.2.4 Knowledge. Representations made "to the best of [a
---------
party's] knowledge" mean to the actual knowledge of that party after (a) due
inquiry of all managers, department heads, engineers or other similar employees
or agents, including counsel of that party who are responsible for or who
reasonably could be expected to have substantial knowledge about the subject
matters of the representation being made and (b) due examination of any
documents, correspondence or other items in the records of the party pertaining
to the subject matter of the representation being made.
18.3 Further Assurances. At and after the Closing, Seller shall from
------------------
time to time, at the request of and without further cost or expense to Buyer,
execute and deliver such other instruments of assignment, conveyance and
transfer and take such other actions as may reasonably be requested in order to
more effectively consummate the transactions contemplated hereby, and Buyer
shall from time to time, at the request of and without further cost or expense
to Seller, execute and deliver such other instruments and take such other
actions as may reasonably be requested in order to more effectively assume the
Assumed Liabilities. This section shall survive the expiration or termination
of this Agreement.
18.4 Financial Statements. At all times after the date hereof, Seller
--------------------
shall, and shall cause its representatives (including its independent public
accountants) to, cooperate in all reasonable respects with the efforts of Buyer
and its independent auditors to prepare such audited and interim unaudited
financial statements of the Stations as Buyer may require. Seller shall execute
and deliver
37
to Buyer's independent accountants such customary management representation
letters as they may require as a condition to their ability to sign an
unqualified report upon the unaudited financial statements of the Stations for
the periods for which such financial statements may be required. Seller shall
cause its independent public accountants to make available to Buyer and its
representatives all of their work papers related to the financial statements or
Tax Returns of Seller (to the extent they relate to the Stations), and to
provide Buyer's independent public accountants with full access to those
personnel who previously have been involved in the audit, review or compilation
of Seller's financial statements or Tax Returns. Buyer shall assume cost of all
expenses incurred in connection with this Section.
18.5 Assignment. Neither this Agreement nor any of the rights,
-----------
interests or obligations hereunder shall be assigned by any of the parties
hereto, whether by operation of law or otherwise; provided, however, that
without releasing Buyer from any of its obligations or liabilities hereunder (a)
nothing in this Agreement shall limit Buyer's ability to sell or transfer this
Agreement, or any or all of its assets (whether by sale of equity or assets, or
by merger, consolidation or otherwise) without the consent of Seller (b) nothing
in this Agreement shall limit Buyer's ability to assign the Station Licenses
(including the right to acquire the Station Licenses at the Closing) to any
subsidiary, affiliate or related entity of Buyer without the consent of Seller
and (c) nothing in this Agreement shall limit Buyer's ability to make a
collateral assignment of its rights under this Agreement to any institutional
lender that provides funds to Buyer without the consent of Seller; provided,
further, that no such assignment shall result in any (i) major change to the FCC
Applications under applicable FCC rules and regulations or (ii) delay of the
consummation of the transactions contemplated hereunder. Seller shall execute an
acknowledgment of such assignment(s) and collateral assignments in such forms as
Buyer or its institutional lenders may from time to time reasonably request;
provided, however, that unless written notice is given to Seller that any such
assignment has been consummated or any such collateral assignment has been
foreclosed upon, Seller shall be entitled to deal exclusively with Buyer as to
any matters arising under this Agreement or any of the other agreements
delivered pursuant hereto. In the event of such an assignment, the provisions of
this Agreement shall inure to the benefit of and be binding on Buyer's
successors and assigns.
18.6 Amendments. No amendment, waiver of compliance with any
----------
provision or condition hereof or consent pursuant to this Agreement shall be
effective unless evidenced by an instrument in writing signed by the party
against whom enforcement of any waiver, amendment, change, extension or
discharge is sought. No waiver by a party of any condition, term, or covenant
shall constitute that party's waiver to enforce any other condition, covenant,
term (or any default or breach thereof by the other party) at any time.
18.7 Headings. The headings set forth in this Agreement are for
--------
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
18.8 Governing Law. The construction and performance of this Agreement
--------------
shall be governed by the laws of the State of Delaware without giving effect to
the choice of law provisions thereof. Any proceedings to enforce or interpret
this Agreement shall be commenced in a court of
38
competent jurisdiction in the State of Delaware. The parties agree not to assert
nor interpose any defenses, and do hereby waive the same, to the conferral of
personal and subject matter jurisdiction, and venue by such court in any suit,
action, or proceeding. The prevailing party in any such action or proceeding
shall be entitled to recover reasonable attorneys' fees (at all levels) and
costs.
18.9 Notices. Any notice, demand or request required or permitted to
-------
be given under the provisions of this Agreement shall be in writing and shall
be deemed to have been duly delivered and received on the date of personal
delivery; on the third day after deposit in the U.S. Mail if mailed by
registered or certified mail, postage prepaid and return receipt requested; on
the day after delivery to a nationally recognized overnight courier service if
sent by an overnight delivery service for next morning delivery and shall be
addressed to the following addresses:
(i) In the case of Seller, to:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Marathon Media
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(ii) In the case of Buyer:
▇▇. ▇▇▇▇ ▇▇▇▇▇▇
NextMedia Operating, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇ & Associates, P.A.
▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
18.10 Barter and Trade. Buyer shall not assume any Trade Agreements
----------------
hereunder unless (a) Buyer obtains the value of the goods and services provided
in exchange for the advertising to be
39
broadcast and (b) those goods and services are useful to the business of the
Stations. If the value of trade, barter, and similar arrangements for the sale
of advertising time for other than cash that are assumed by Buyer under this
Agreement is $25,000 or more with respect to any of the Stations, then Seller
shall pay Buyer the excess above the first $25,000 for such Station at Closing.
18.11 Schedules. The Schedules and Exhibits attached to this
---------
Agreement and the other documents delivered pursuant hereto are hereby made a
part of this Agreement as if set forth in full herein.
18.12 Entire Agreement. This Agreement contains the entire agreement
----------------
among the parties hereto with respect to its subject matter and supersedes all
negotiations, prior discussions, agreements, letters of intent, and
understandings, written or oral, relating to the subject matter of this
Agreement, and all conditions, terms, and covenants are hereby fully merged and
integrated herein. This Agreement shall not be amended nor modified, unless by a
written instrument, duly executed by both of the parties duly authorized
representatives.
18.13 Severability. If any provision of this Agreement is held to be
------------
unenforceable, invalid, or void to any extent for any reason, that provision
shall remain in force and effect to the maximum extent allowable, and the
enforceability and validity of the remaining provisions of this Agreement shall
not be affected thereby, and shall remain in full force and effect.
18.14 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which will be deemed an original, but all of which
together shall constitute but one and the same instrument.
18.15 Authority. Buyer and Seller expressly acknowledge that the
---------
agents executing this Agreement on their behalf, possess the full agency and
authority, both actual and apparent, to fully bind their respective principals
to this Agreement. Neither party shall assert or interpose any defense in any
proceeding, which defenses are hereby waived, that said agents did not possess
the legal authority and agency to bind their respective principals to this
Agreement.
18.16 Collection of Accounts Receivable.
---------------------------------
(a) The accounts receivable of the Stations generated prior to
the TBA Commencement Date (the "Pre-Closing Receivables") shall be and remain
the property of Seller. Within five (5) business days after the TBA Commencement
Date, Seller shall furnish Buyer with a list (certified by the Chief Financial
Officer of Seller to be a true and complete list) of all accounts receivable of
Seller which remain outstanding as of the TBA Commencement Date. Buyer agrees,
with respect to any Post-Closing Receivables, to remit all amounts collected on
Seller's behalf, no less often than the fifteenth business day after the close
of each month during the Collection Period (as hereinafter defined).
40
(b) During the period commencing on the TBA Commencement Date and
ending one (1) year thereafter (the "Collection Period"), Buyer shall use
reasonable efforts, consistent with Seller's current billing and collection
practices and in the ordinary course of the business, to collect outstanding
Pre-Closing Receivables; provided, however, that notwithstanding the foregoing,
Buyer shall be under no obligation to commence litigation, employ counsel or
engage the services of a collection agency to effect collection. Buyer shall
not make any compromise, adjustment, concession or settlement of any Pre-Closing
Receivables without Seller's express written consent and Buyer shall be under no
obligation to compromise, adjust, concede or settle any accounts receivable
generated after the TBA Commencement Date or otherwise grant any credit or
allowance to effect collection of a Pre-Closing Receivable.
(c) Within fifteen days after the end of each month during the
Collection Period, Buyer shall give Seller a report of all collections of any
Pre-Closing Receivables during the preceding month.
(d) For a period of three hundred and sixty (360) days after TBA
Commencement Date, Seller agrees to remit to Buyer within five (5) days, any
amounts received by Seller which are in payment for advertising broadcast by the
Stations.
18.17 Conflict with TBA. The provisions of this Agreement are
-----------------
generally modified to amend the parties' respective liabilities, obligations,
agreements, covenants, responsibilities and warranties hereunder to the extent
that such would otherwise be inconsistent with the TBA
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed and delivered as of the date first above written.
BELVIDERE BROADCASTING, L.P., an Illinois
limited partnership
By: BELVIDERE BROADCASTING COMPANY,
L.L.C., a Illinois limited liability company,
its general partner
By: ______________________________
▇▇▇▇▇ ▇▇▇▇▇, Manager
NEXTMEDIA OPERATING, INC.,
a Delaware corporation
By: _____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secretary
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