Seller’s Pre-Closing Covenants. Seller covenants and agrees that, between the date hereof and the Closing Date, except as expressly permitted by this Agreement or with the prior written consent of Buyer, Seller shall act in accordance with the following: 9.1.1 Seller shall conduct the business and operations of the Station in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the Station, including but not limited to maintaining the independent identity of the Station. 9.1.2 Seller shall use its best efforts to preserve the operation of the Station intact and preserve the business of the Station's advertisers, customers, suppliers and others having business relations with the Station and continue to conduct financial operations of the Station, including its credit and collection and pricing policies and practices, in the ordinary course of business consistent with past practices. 9.1.3 Seller shall operate the Station in all material respects in accordance with FCC rules and regulations and the Station Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Station Licenses or other licenses, permits or authorizations listed in Schedule 7.4 to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Station Licenses, or fail to prosecute with due diligence any pending applications to the FCC. 9.1.4 Seller shall not: (a) sell, lease or dispose of or commit to sell, lease or dispose of any of the Station Assets except in the ordinary course of business and subject to the provisions of Section 1.1.2 hereof; (b) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (c) grant or agree to grant any increases in the rates of salaries or compensation payable to employees of the Station other than scheduled salary increases; (d) grant or agree to grant any bonus to any employee of the Station which will not be paid in full by Seller prior to the Closing; (e) provide for any new pension, retirement or other employment benefits for employees of the Station or any increases in any existing benefits; (f) modify, change or terminate any Contract without prior written permission of the Buyer; (g) change the advertising rates in effect as of the date hereof except in accordance with ordinary course of business pricing policies; (h) create, assume or permit to exist any mortgage, pledge, lien, or other charge or encumbrance or rights affecting any of the Station Assets, except for those in existence on the date of this Agreement and disclosed herein or in the Schedules attached hereto; (i) change the call letters of the Station; or (j) take any action which would cause any representation or warranty contained herein to be or become false or invalid or which could hinder or delay the consummation of the transactions contemplated by this Agreement. 9.1.5 Seller will provide Buyer prompt written notice of any material change in any of the information contained in the representations and warranties made in Article 7 or any Schedule. 9.1.6 In order that Buyer may have full opportunity to make such investigation as it desires of the affairs of the Station, Seller shall give or cause the Station to give Buyer and Buyer's counsel, accountants and engineers reasonable access to all of Seller's properties, books, Contracts, Trade Agreements, Time Sales Agreements, reports and records (including, without limitation, financial information and tax returns relating to the Station), real estate, buildings and equipment relating to the Station and to the Station's employees, and to furnish Buyer with information and copies of all documents and agreements relating to the Station and the operation thereof (including but not limited to financial and operating data and other information concerning the financial condition, results of operations and business of the Station) that Buyer may reasonably request. The rights of Buyer under this Section 9.1 shall not be exercised in such a manner as to interfere directly or indirectly with the business of the Station. 9.1.7 Within twenty-five (25) days of the end of each month, Seller shall deliver to Buyer an unaudited statement of revenue and expenses of Seller and a balance sheet for the month then ended (collectively, the "Interim Financial Statements"). Seller shall also furnish to Buyer any and all information customarily prepared by Seller concerning the financial condition and results of operations of the Station that Buyer may request. 9.1.8 Seller shall use all reasonable efforts to obtain any third party consents necessary for the assignment of any Contract. 9.1.9 Seller shall use all reasonable efforts to transfer to Buyer any discounts or other benefits which it enjoys under any arrangement as described in Section 7.20 of this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Seller’s Pre-Closing Covenants. Subject to Buyer's time brokering of the Citicasters Stations pursuant to the Time Brokerage Agreement, Seller covenants and agrees with respect to the Station that, between the date hereof and the Closing Date, except as expressly permitted by this Agreement or with the prior written consent of Buyer, Seller shall act in accordance with the following; provided however, that Seller and Buyer acknowledge that concurrent with the execution of this Agreement Buyer and Seller have entered into the Time Brokerage Agreement and such parties understand that any TBA Events which would cause any of Seller's covenants and agreements to be breached by Seller, shall not be deemed to result in a breach or nonperformance of such covenants and agreements by Seller:
9.1.1 Seller shall conduct the business and operations of the Station in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the Station, including but not limited to maintaining the independent identity of the Station.
9.1.2 Seller shall use its best efforts to preserve the operation of the Station intact and preserve the business of the Station's advertisers, customers, suppliers and others having business relations with the Station and continue to conduct financial operations of the Station, including its credit and collection and pricing policies and practices, Citicasters Stations in the ordinary course of business consistent with past practices.practice;
9.1.3 9.1.2 Seller shall operate the Station Citicasters Stations in all material respects in accordance with FCC rules and regulations and the Station Citicasters Stations Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Station Citicasters Stations Licenses or other licenses, permits or authorizations listed in Schedule SCHEDULE 7.4 to expire, be surrendered, adversely modifiedmodified (other than as set forth in SCHEDULE 7.4 or as specifically permitted by this Agreement), or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Station Citicasters Stations Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.3 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller will promptly notify Buyer thereof and will use its reasonable efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.4 Subject to the rights and obligations of the parties set forth in, and actions taken by the parties pursuant to the Time Brokerage Agreement, Seller shall not, and shall use its best efforts to cause Nationwide to not: (a) sell, lease or dispose of or commit to sell, lease or dispose of any of the Station Assets Stations Assets, except in the ordinary course of business and subject as permitted pursuant to the provisions of Section 1.1.2 hereof; (b) sell broadcast time on a prepaid basis with regard to the Citicasters Stations (other than in the course of existing credit practices); (c) grant or agree to grant any increases in the rates of salaries or compensation payable to employees of the Station other than scheduled salary increases; (d) grant or agree to grant any bonus to any employee of the Station which will not be paid in full by Seller prior to the Closing; (e) provide for any new pension, retirement or other employment benefits for employees of the Station or any increases in any existing benefits; (f) modify, change or terminate any Contract without prior written permission of the Buyer; (gb) change the advertising rates with regard to the Citicasters Stations in effect as of the date hereof except in accordance with ordinary course of business pricing policies; or (hc) create, assume or permit to exist any mortgage, pledge, lien, or other charge or encumbrance Liens or rights affecting any of the Station Stations Assets, except for those in existence on the date of this Agreement and disclosed herein in SCHEDULE 7.8 or in the Schedules attached hereto; (i) change the call letters of the Station; or (j) take any action which would cause any representation or warranty contained herein to be or become false or invalid or which could hinder or delay the consummation of the transactions contemplated by this AgreementSCHEDULE 7.9(a).
9.1.5 Except for changes resulting from Buyer's actions pursuant to the Time Brokering Agreement, Seller will shall provide Buyer prompt written notice of any material change in any of the information contained in the representations and warranties made in Article 7 or any Schedule.
9.1.6 In order that Buyer may have full opportunity to make such investigation as it desires of the affairs of the StationStations, Seller shall give or cause the Station Citicasters Stations to give Buyer and Buyer's counsel, accountants accountants, engineers and engineers other representatives, at Buyer's reasonable request and upon reasonable notice, full and reasonable access during normal business hours to all of Seller's personnel, properties, books, Contracts, Trade Agreements, Time Sales Agreements, reports and records (including, without limitation, financial information and tax returns relating to the StationCiticasters Stations, and environmental audits in existence with respect to the Stations Assets), real estate, buildings and equipment relating to the Station Stations and to the Station's Stations' employees, and to furnish Buyer with information and copies of all documents and agreements relating to the Station Stations and the operation thereof (including but not limited to financial and operating data and other information concerning the financial condition, results of operations and business of the StationStations) that Buyer may reasonably request. Until the Commencement Date, at Buyer's request Seller shall promptly deliver to Buyer an unaudited statement of revenue and expenses of the Stations and a balance sheet for the month then ended. The rights of Buyer under this Section 9.1 9.1.6 shall not be exercised in such a manner as to interfere directly or indirectly unreasonably with the business of the StationStations.
9.1.7 Within twenty-five (25) days of the end of each month, Seller shall deliver to Buyer an unaudited statement of revenue and expenses of Seller and a balance sheet for the month then ended (collectively, the "Interim Financial Statements"). Seller shall also furnish to Buyer any and all information customarily prepared by Seller concerning the financial condition and results of operations of the Station that Buyer may request.
9.1.8 Seller shall use all its reasonable best efforts to (i) obtain any third party consents necessary for the assignment of any Contract.
9.1.9 Contract (which shall not require any payment to any such third party except for such amounts contemplated by the Contract to be assigned, any amount then owing by Seller shall use all to such third party or the reasonable efforts to transfer to Buyer any discounts or other benefits which it enjoys under any arrangement as described expenses incurred by such third party in connection with such assignment), (ii) obtain the amendments set forth in Section 7.20 of this Agreement14.1.8, and (iii) reasonably cooperate with Buyer in negotiating with the landlord with respect to the studio lease for the current Nationwide Stations ("Studio Lease").
Appears in 1 contract
Samples: Asset Purchase Agreement (Heftel Broadcasting Corp)
Seller’s Pre-Closing Covenants. Each Seller jointly and severally covenants and agrees that, that between the date hereof of this Agreement and the Closing Date, such Seller shall (except (i) as expressly permitted by this Agreement or with the prior written consent of Buyer, Seller Buyer (which consent shall not be unreasonably withheld or delayed) or (ii) as otherwise provided under the RICH LMA) act in accordance with the following:
9.1.1 (a) Each Seller shall cause the Partnerships to conduct the business and operations of the Station Stations in the ordinary and prudent course of business consistent with past practice (without taking into account the existence of this Agreement) and with the intent of preserving the ongoing operations and assets of the StationStations, including including, but not limited to to, maintaining the independent identity of the StationStations, retaining the current format of the Stations and using its reasonable best efforts to retain the services of key employees.
9.1.2 (b) Each Seller shall cause each of the Partnerships to use its reasonable best efforts to preserve the operation of the Station Stations intact and to preserve the business of the Station's advertisers, Stations' customers, suppliers and others having business relations with the Station Stations and continue to conduct financial operations of the StationStations, including its credit and collection and pricing policies and practicespolicies, in the ordinary course of business consistent with past practicessubstantially the same effort, and to substantially the same extent and in the same manner, as in the prior conduct of the business of the Stations.
9.1.3 (c) Each Seller shall cause the Partnerships to operate the Station Stations in all material respects in accordance with FCC rules and regulations and the Station FCC Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Station FCC Licenses or other licenses, permits or authorizations listed in Schedule 7.4 to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Station Licenses, or fail to prosecute with reasonable due diligence any pending applications to the FCC.
9.1.4 (d) [INTENTIONALLY OMITTED].
(e) Each Seller shall not: , other than in the ordinary course of business or after receiving Buyer's prior written approval, (ai) sell, lease sell or dispose of or commit to sell, lease sell or dispose of any of the Station Assets except in the ordinary course of business and subject to the provisions of Section 1.1.2 hereofPartnership Assets; (b) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (cii) grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Station other than scheduled salary increasesPartnerships; (diii) grant or agree to grant any specific bonus or increase to any executive or management employee of the Station which will not be paid in full by Seller prior to the ClosingPartnerships; or (eiv) provide for any new pension, retirement or other employment benefits for employees of the Station Partnerships or any increases in any existing benefits; .
(f) modify, change or terminate any Contract without prior written permission of the Buyer; [INTENTIONALLY OMITTED].
(g) change Sellers may cause the advertising rates Partnerships to enter into or renew any Contract in effect as of the date hereof except in accordance with ordinary course of business pricing policies; (h) create, assume or permit to exist any mortgage, pledge, lien, or other charge or encumbrance or rights affecting any without taking into account the existence of the Station Assets, except for those in existence on the date of this Agreement and disclosed herein or in the Schedules attached hereto; (i) change the call letters of the Station; or (j) take any action which would cause any representation or warranty contained herein to be or become false or invalid or which could hinder or delay the consummation of the transactions contemplated by this Agreement.
9.1.5 Seller will provide (h) Sellers shall give Buyer prompt written notice of any material change in any and Buyer's counsel, accountants, engineers and other representatives, full and reasonable access during normal business hours to all of the Partnerships' personnel, properties, books, Contracts, reports and records including financial information contained and tax returns with supporting work papers relating to the Partnerships and the Stations, to all real estate buildings and equipment relating to the Partnerships and the Stations, and to the employees of the Partnerships and the Stations in the representations and warranties made in Article 7 or any Schedule.
9.1.6 In order that Buyer may have full opportunity to make such investigation as it desires of the affairs of the Station, Seller Partnerships and the Stations. Sellers shall give or cause the Station to give Buyer and Buyer's counsel, accountants and engineers reasonable access to all of Seller's properties, books, Contracts, Trade Agreements, Time Sales Agreements, reports and records (including, without limitation, financial information and tax returns relating to the Station), real estate, buildings and equipment relating to the Station and to the Station's employees, and to furnish Buyer with information and copies of all documents and agreements relating to the Station and the operation thereof (including but not limited to financial and operating data and other information concerning the financial condition, results of operations and business of the Station) Partnerships and the Stations, that Buyer may reasonably requestrequest in order to complete Buyer's due diligence examination of the Partnerships and the Stations. The rights of Buyer under this Section 9.1 shall not be exercised in such a manner as to materially interfere directly or indirectly with the business of the StationPartnerships or the Stations.
9.1.7 Within (i) The Partnerships shall spend not less than one hundred percent (100%) of the cash promotions, advertising and research expenditures the Partnerships budgeted for the Stations for the period from the date of this Agreement through the Closing Date.
(j) Sellers shall use their reasonable best efforts to maintain the employment at the Stations and to renew, in accordance with this Agreement, the existing employment Contracts of the employees listed in Section 9.13 of the Disclosure Schedule. Between the date hereof and for a period of three (3) years from the Closing Date, neither Sellers nor any executive officer of Sellers shall, directly or indirectly, through any agent or otherwise, hire or solicit the employment of any of the employees listed on Section 9.13 of the Disclosure Schedule who are hired by Buyer at or after the Closing or who are subject to non-competition agreements with Buyer (but only to the extent limited by such non-competition agreements), except as agreed to in writing by Buyer and Sellers. Notwithstanding anything to the contrary herein, the covenants and agreements contained in the immediately preceding sentence shall not constitute joint and several covenants and agreements of Sellers, but shall constitute joint and several covenants and agreements (i) by the EBF Sellers with respect to both EBF Sellers and any executive officer of such Sellers and (ii) by the KAB/ABS Sellers with respect to both KAB/ABS Sellers and any executive officer of such Sellers.
(k) Sellers shall provide Buyer with revenue pacing reports for the Stations on a weekly basis during the term of this Agreement. Additionally, within twenty-five (25) days of the end of each month, Seller Sellers shall deliver to Buyer an unaudited statement of revenue and expenses of Seller and a balance sheet the Stations for the month then ended (collectivelyended. The weekly revenue pacing reports and the monthly statements of revenue and expenses shall be certified by the managing general partners of the Partnerships, shall be true and complete in all material respects to the "Interim Financial Statements")best of Sellers' knowledge and shall fairly and accurately represent in all material respects the results of operation of the Stations for the period covered by such reports and statements. Seller Sellers shall also furnish to Buyer any and all other information at such times as is customarily prepared by Seller Sellers concerning the financial condition and results of operations of the Station that Stations as Buyer may reasonably request.
9.1.8 Seller (l) Sellers shall use all reasonable efforts to obtain any third party consents necessary for cooperate with Buyer by providing Buyer with such financial and accounting records as Buyer may reasonably request in connection with the assignment preparation of any Contractfinancial statements of the Partnerships and the Stations.
9.1.9 Seller (m) The Partnerships shall use all reasonable efforts not, and Sellers shall cause the Partnerships not to, make any Distributions other than Distributions to transfer to Buyer any discounts or other benefits which it enjoys under any arrangement as described each partner of the Partnerships for payment of such partner's federal, state and local income tax liability in Section 7.20 respect of this Agreementthe net income of the Partnerships.
Appears in 1 contract
Samples: Master Richmond Station Group Agreement (SFX Broadcasting Inc)
Seller’s Pre-Closing Covenants. Seller covenants and agrees that, with respect to the Stations that between the date hereof and the Closing Date, except as expressly permitted by this Agreement or with the prior written consent of Buyer, Seller it shall act in accordance with the following:
9.1.1 Seller shall conduct the business and operations of the Station Stations in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the StationStations, including including, but not limited to to, maintaining the independent identity of the StationStations, retaining the current format of the Stations and using its best efforts to retain the services of key employees.
9.1.2 Seller shall use its best commercially reasonable efforts to preserve the operation of the Station Stations intact and to preserve the business of the Station's advertisers, Stations' customers, suppliers and others having business relations with the Station Stations and continue to conduct financial operations of the StationStations, including its credit and collection and pricing policies and practicespolicies, in the ordinary course of business consistent with past practicessubstantially the same effort, and to substantially the same extent and in the same manner, as in the prior conduct of the business of the Stations.
9.1.3 Seller shall operate the Station Stations in all material respects in accordance with FCC rules Rules and regulations Regulations and the Station Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Station Licenses or other licenses, permits or authorizations listed in Schedule 7.4 to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Station Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller shall not: (a) sell, lease or dispose of or commit promptly notify Buyer thereof and shall use its reasonable efforts to sell, lease or dispose of take such steps as may be necessary to remove any of such impediment to the Station Assets except transactions contemplated by this Agreement. [NYCORP] 35907.1
9.1.5 Seller shall not other than in the ordinary course of business and subject to the provisions of Section 1.1.2 hereof; (b) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (c) grant or agree to grant any increases in the rates of salaries or compensation payable to employees of the Station other than scheduled salary increases; (d) grant or agree to grant any bonus to any employee of the Station which will not be paid in full by Seller prior to the Closing; (e) provide for any new pension, retirement or other employment benefits for employees of the Station or any increases in any existing benefits; (f) modify, change or terminate any Contract without prior written permission of the Buyer; (g) change the advertising rates in effect as of the date hereof except in accordance with ordinary course of business pricing policies; (h) create, assume or permit to exist any mortgage, pledge, lien, or other charge or encumbrance or rights affecting any of the Station Assets, except for those in existence on the date of this Agreement and disclosed herein or in the Schedules prepared budgets attached hereto; (i) change the call letters of the Station; or (j) take any action which would cause any representation or warranty contained herein to be or become false or invalid or which could hinder or delay the consummation of the transactions contemplated by this Agreementhereto as Schedule 9.
9.1.5 Seller will provide Buyer prompt written notice of any material change in any of the information contained in the representations and warranties made in Article 7 or any Schedule.
9.1.6 In order that Buyer may have full opportunity to make such investigation as it desires of the affairs of the Station, Seller shall give or cause the Station to give Buyer and Buyer's counsel, accountants and engineers reasonable access to all of Seller's properties, books, Contracts, Trade Agreements, Time Sales Agreements, reports and records (including, without limitation, financial information and tax returns relating to the Station), real estate, buildings and equipment relating to the Station and to the Station's employees, and to furnish Buyer with information and copies of all documents and agreements relating to the Station and the operation thereof (including but not limited to financial and operating data and other information concerning the financial condition, results of operations and business of the Station) that Buyer may reasonably request. The rights of Buyer under this Section 9.1 shall not be exercised in such a manner as to interfere directly or indirectly with the business of the Station.
9.1.7 Within twenty-five (25) days of the end of each month, Seller shall deliver to Buyer an unaudited statement of revenue and expenses of Seller and a balance sheet for the month then ended (collectively, the "Interim Financial Statements"). Seller shall also furnish to Buyer any and all information customarily prepared by Seller concerning the financial condition and results of operations of the Station that Buyer may request.
9.1.8 Seller shall use all reasonable efforts to obtain any third party consents necessary for the assignment of any Contract.
9.1.9 Seller shall use all reasonable efforts to transfer to Buyer any discounts or other benefits which it enjoys under any arrangement as described in Section 7.20 of this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Triathlon Broadcasting Co)
Seller’s Pre-Closing Covenants. Seller covenants and agrees that, with respect to the Stations that between the date hereof and the Closing Date, except as expressly permitted by this Agreement or with the prior written consent of Buyer, Seller it shall act in accordance with the following:
9.1.1 Seller shall conduct the business and operations of the Station Stations in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the StationStations, including including, but not limited to to, maintaining the independent identity of the StationStations, retaining the current format of the Stations and using its best efforts to retain the services of key employees.
9.1.2 Seller shall use its best commercially reasonable efforts to preserve the operation of the Station Stations intact and to preserve the business of the Station's advertisers, Stations' customers, suppliers and others having business relations with the Station Stations and continue to conduct financial operations of the StationStations, including its credit and collection and pricing policies and practicespolicies, in the ordinary course of business consistent with past practicessubstantially the same effort, and to substantially the same extent and in the same manner, as in the prior conduct of the business of the Stations.
9.1.3 Seller shall operate the Station Stations in all material respects in accordance with FCC rules Rules and regulations Regulations and the Station Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Station Licenses or other licenses, permits or authorizations listed in Schedule 7.4 to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Station Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller shall not: promptly notify Buyer thereof and shall use its reasonable efforts to take such steps as may be necessary to remove any such impediment to the transactions contemplated by this Agreement.
9.1.5 Seller shall not other than in the ordinary course of business or in accordance with prepared budgets attached hereto as Schedule 9.1.5 or after receiving Buyer's prior written approval (ai) sell, lease sell or dispose of or commit to sell, lease sell or dispose of any of the Station Assets except in the ordinary course of business and subject to the provisions of Section 1.1.2 hereofAssets; (b) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (cii) grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Station other than scheduled salary increasesStations; (diii) grant or agree to grant any specific bonus or increase to any executive or management employee of the Station which will not be paid in full by Seller prior to the ClosingStations; or (eiv) provide for any new pension, retirement or other employment benefits for employees of the Station Stations or any increases in any existing benefits; (f) modify, change or terminate any Contract without prior written permission of the Buyer; (g) change the advertising rates in effect as of the date hereof except in accordance with ordinary course of business pricing policies; (h) create, assume or permit to exist any mortgage, pledge, lien, or other charge or encumbrance or rights affecting any of the Station Assets, except for those in existence on the date of this Agreement and disclosed herein or in the Schedules attached hereto; (i) change the call letters of the Station; or (j) take any action which would cause any representation or warranty contained herein to be or become false or invalid or which could hinder or delay the consummation of the transactions contemplated by this Agreement.
9.1.5 9.1.6 Seller will shall provide Buyer prompt written notice of any material change in any of the information contained in the representations and warranties made in Article 7 hereof or any ScheduleExhibits or Schedules herein or attached hereto.
9.1.6 In 9.1.7 Seller may enter into or renew any contract, agreement, commitment or other understanding or arrangement in the ordinary course of business, provided, however, that except with respect to contracts for the sale of time for cash and except for Trade Agreements, the liability under said contracts to be assumed by Buyer at Closing shall not exceed Five Thousand Dollars ($5,000) per contract or Fifty Thousand Dollars ($50,000) in the aggregate, without the written approval of the Buyer.
9.1.8 The Seller shall give the Buyer and the Buyer's counsel, accountants, engineers and other representatives, full and reasonable access during normal business hours to all of the Stations' personnel, properties, books, contracts, reports and records including financial information and tax returns with supporting work papers relating to the Stations, to all real estate buildings and equipment relating to the Stations, and to the Stations' employees in order that the Buyer may have full opportunity to make such investigation as it desires of the affairs of the Station, Stations. Seller shall give or cause the Station to give Buyer and Buyer's counsel, accountants and engineers reasonable access to all of Seller's properties, books, Contracts, Trade Agreements, Time Sales Agreements, reports and records (including, without limitation, financial information and tax returns relating to the Station), real estate, buildings and equipment relating to the Station and to the Station's employees, and to furnish Buyer with information and copies of all documents and agreements relating to the Station and the operation thereof (including but not limited to financial and operating data and other information in its possession concerning the financial condition, results of operations and business of the Station) Seller and the Stations, that the Buyer may reasonably requestrequest in order to complete the Buyer's due diligence examination of the Stations. The rights of the Buyer under this Section 9.1 shall not be exercised in such a manner as to materially interfere directly or indirectly with the business of the StationStations.
9.1.7 Within 9.1.9 Notwithstanding anything in this Agreement to the contrary, Seller may enter into any contract without the consent of Buyer, but if any such contract is outside the scope of the restrictions set forth in this Section 9.1, Buyer shall not be obligated to accept and assume such contract at Closing.
9.1.10 Seller shall use its reasonable best efforts, consistent with past practice, to complete all obligations owing by Seller under Trade Agreements prior to the Closing.
9.1.11 Seller shall spend not less than one hundred percent (100%) of the cash promotions, advertising and research expenditures Seller budgeted for the Stations for the period from the date of this Agreement through the Closing Date, such budget is attached hereto as Disclosure Schedule 9.1.11.
9.1.12 Seller shall use its best efforts to maintain the employment at the Stations and to renew, in accordance with this Agreement, the existing employment contracts of the employees listed in Section 7.1 4 of the Disclosure Schedule. Between the date hereof and for a period of three (3) years from the Closing Date, neither the Seller nor any executive officer of Seller shall, directly or indirectly, through any agent or otherwise, hire or solicit the employment of any of the employees listed on Section 7.14 of the Disclosure Schedule who are hired by Buyer at or after the Closing or who are subject to non-competition agreements with Buyer (but only to the extent limited by such non-competition agreements), except as agreed to in writing by Buyer and Seller.
9.1.13 Seller shall provide Buyer with revenue pacing reports for the Stations on a weekly basis during the term of this Agreement. Additionally, within twenty-five (25) days of the end of each month, Seller shall deliver to Buyer an unaudited statement of revenue and expenses of Seller and a balance sheet the Stations for the month then ended (collectivelyended. The weekly revenue pacing reports and the monthly statements of revenue and expenses shall be certified by the Chairman or Chief Financial Officer of Seller, shall be true and complete to the "Interim Financial Statements")best of Seller's knowledge and shall fairly and accurately represent the results of operation of the Stations for the period covered by such reports and statements. Seller shall also furnish to Buyer any and all other information at such times as is customarily prepared by Seller concerning the financial condition and results of operations of the Station that Stations as Buyer may reasonably request.
9.1.8 9.1.14 The Seller shall use all reasonable efforts to obtain any third party consents necessary for cooperate with the assignment Buyer by providing the Buyer with such financial and accounting records as Buyer may reasonably request in connection with the preparation of any Contractfinancial statements of the Stations.
9.1.9 Seller shall use all reasonable efforts to transfer to Buyer any discounts or other benefits which it enjoys under any arrangement as described in Section 7.20 of this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Seller’s Pre-Closing Covenants. Subject to Buyer's time brokering of the Station pursuant to the Time Brokerage Agreement, Seller covenants and agrees with respect to the Station that, between the date hereof and the Closing Date, except as expressly permitted by this Agreement or with the prior written consent of Buyer, Seller shall act in accordance with the following; provided however, that American, American License and Buyer acknowledge that concurrent with the execution of this Agreement Buyer, American and American License have entered into the Time Brokerage Agreement and such parties understand that any TBA Events which would cause any of American's or American License's covenants and agreements to be breached by American or American License, shall not be deemed to result in a breach or nonperformance of such covenants and agreements by American or American License:
9.1.1 Seller shall conduct the business and operations of the Station in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the Station, including but not limited to maintaining the independent identity of the Station, retaining the current format and programming (including the content thereof) of the Station and using its commercially reasonable efforts to retain the services of all active employees, consultants and agents.
9.1.2 Seller shall use its best commercially reasonable efforts to preserve the operation of the Station intact and use commercially reasonable efforts to preserve the business of the Station's advertisers, customers, suppliers and others having business relations with the Station and continue to conduct financial operations of the Station, including its their credit and collection and pricing policies and practices, in the ordinary course of business consistent with past practices.
9.1.3 Seller shall operate the Station in all material respects in accordance with FCC rules and regulations and the Station Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Station Licenses or other licenses, permits or authorizations listed in Schedule 7.4 to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Station Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller will promptly notify Buyer thereof and will use its commercially reasonable efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.5 Except as set forth on Schedule 9.1.5 and in Section 10.7, Seller shall not: (a) sell, lease or dispose of or commit to sell, lease or dispose of any of the Station Assets Assets, except as permitted pursuant to Section 1.1.2 hereof and except in the ordinary course of business and subject to the provisions of Section 1.1.2 hereofconnection with any American Sale); (b) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (c) except as required by applicable law, grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Station other than scheduled salary increasesStation; (d) grant or agree to grant any specific bonus or increase in compensation to any executive or management employee of the Station which will not be paid in full by Seller prior to the ClosingStation; (e) provide for any new pension, retirement or other employment benefits for employees of the Station or any increases in any existing benefits; (f) modify, change or terminate any Contract without prior written permission of the BuyerContract; (g) change the advertising rates in effect as of the date hereof except in accordance with ordinary course of business pricing policies; (h) create, assume or permit to exist any mortgage, pledge, lien, or other charge or encumbrance Liens or rights affecting any of the Station Assets, except for those in existence on the date of this Agreement and disclosed herein in Schedule 7.7 or in the Schedules attached heretoSchedule 7.8 which shall be released at Closing, and Permitted Liens; (i) change the call letters of the Station; or (j) take any action which would cause any representation or warranty contained herein to be or become false or invalid or which could hinder or delay the consummation of the transactions contemplated by this Agreement.
9.1.5 9.1.6 Except for changes resulting from the Time Brokerage Agreement, Seller will shall provide Buyer prompt written notice of any material change in any of the information contained in the representations and warranties made in Article 7 or any Schedule.
9.1.6 9.1.7 In order that Buyer may have full opportunity to make such investigation as it desires of the affairs of the Station, including the right to audit the Financial Statements and Interim Financial Statements of Seller, Seller shall give or cause the Station to give Buyer and Buyer's counsel, accountants accountants, engineers and engineers other representatives, at Buyer's reasonable request and upon reasonable notice, full and reasonable access during normal business hours to all of Seller's personnel, properties, books, Contracts, Trade Agreements, Time Sales Agreements, reports and records (including, without limitation, financial information and tax returns relating to the Station, and environmental audits in existence with respect to the Station Assets), real estate, buildings and equipment relating to the Station and to the Station's employees, and to furnish Buyer with information and copies of all documents and agreements relating to the Station and the operation thereof (including but not limited to financial and operating data and other information concerning the financial condition, results of operations and business of the Station) that Buyer may reasonably request. The rights of Buyer under this Section 9.1 9.1.7 shall not be exercised in such a manner as to interfere directly or indirectly unreasonably with the business of the Station. Any investigation by Buyer in accordance with the foregoing shall not diminish or negate, in any way, any of the representations or warranties of Seller set forth in this Agreement or in connection herewith.
9.1.7 Within twenty-five 9.1.8 Until the Effective Date, within thirty (2530) days of the end of each calendar month, Seller shall deliver to Buyer an unaudited statement of revenue profit and expenses loss statements of Seller and a balance sheet for the month then ended (collectively, the "Interim Financial Statements"). Seller shall also furnish to Buyer any and all information customarily prepared by Seller concerning the financial condition and results of operations of the Station that Buyer may requestStation.
9.1.8 9.1.9 Seller shall cooperate and shall permit Buyer's independent accountants to prepare, at Buyer's expense, audited financial statements for the Station for the most recently completed fiscal year-end.
9.1.10 Seller shall use all its commercially reasonable efforts to obtain (i) any third party consents necessary for the assignment of any ContractContract (which shall not require any payment to any such third party except for such amounts contemplated by the Contract to be assigned, any amount then owing by Seller to such third party or the reasonable expenses incurred by such third party in connection with such assignment), (ii) Estoppel Certificates, in the form of Exhibit G, from any and all lessors who are party to the Real Estate Contracts, and the tower lease by and between the County of Santa Xxxxx, as lessor, and Seller, as lessee (the "Tower Lease"), and (iii) Subordination and Non-Disturbance Agreement, if any, in the form of Exhibit H, obtained from all secured parties and/or mortgage holders with: (a) an interest in the real estate subject to the Real Estate Contracts, or (b) an interest in the Real Estate Contracts ("SNDA");.
9.1.9 9.1.11 Seller shall use all its commercially reasonable efforts to transfer to Buyer any discounts or other benefits which it enjoys under any arrangement as described in Section 7.20 7.9 of this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Seller’s Pre-Closing Covenants. Seller covenants and agrees that, between From the date hereof through the Closing, unless Purchaser otherwise agrees in writing, the Seller Parties shall, and shall cause the Closing DateWater Companies, except as expressly permitted by this Agreement to:
(a) Cooperate with Purchaser in good faith and take such actions necessary or with desirable to promptly cause the prior written consent conditions to Purchaser’s obligations to close to be satisfied.
(b) Promptly inform Purchaser in writing of: (i) any event that could reasonably be expected to result in a breach of Buyerthe representations, warranties or covenants of the Seller Parties hereunder; or (ii) events or conditions which could reasonably be expected to result in a Material Adverse Change to the Assets, though no such notification shall act cure any such breach or Material Adverse Change.
(c) Maintain and preserve all of the Assets and other properties which are necessary for the conduct of the Business and preserve its present business relationships (including its customer relationships), and continue to compensate its agents in accordance with past custom and practice.
(d) Afford the following:
9.1.1 Seller shall conduct representatives of Purchaser and its affiliates complete access at all reasonable times to (i) the business Assets for the purpose of inspecting the same, (ii) the officers, employees, agents, attorneys, accountants, properties, Books and operations Records, and Financial Statements of the Station in Seller Parties and the ordinary Water Companies, and prudent course of business consistent with past practice shall furnish Purchaser and with the intent of preserving the ongoing operations its representatives all financial, operating and assets of the Stationother data and information as Purchaser, through its representatives, may reasonably request, including but not limited to maintaining Tax Returns for the independent identity Pre-Closing Tax Period. All of such matters shall be referred to herein as the Purchaser’s “Due Diligence.” 953484.15
(e) Not (i) initiate or encourage the submission of any third party proposal relating to the acquisition of the Station.
9.1.2 Seller shall use its best efforts to preserve Assets, or the operation equity of the Station intact and preserve the business of the Station's advertisersSeller, customersor (ii) participate in any discussions regarding, suppliers and others having business relations furnish any information with the Station and continue to conduct financial operations of the Stationrespect to, including its credit and collection and pricing policies and practicesassist or participate in, in the ordinary course of business consistent with past practices.
9.1.3 Seller shall operate the Station in all material respects in accordance with FCC rules and regulations and the Station Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit otherwise facilitate any effort by any act, third party to do or failure to act, seek any of the Station Licenses foregoing. Seller will promptly notify Purchaser if any third party makes any such proposal or other licenses, permits or authorizations listed in Schedule 7.4 contact with respect to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Station Licenses, or fail to prosecute with due diligence any pending applications to the FCCforegoing.
9.1.4 Seller shall not: (a) sell, lease or dispose of or commit to sell, lease or dispose of any of the Station Assets except in the ordinary course of business and subject to the provisions of Section 1.1.2 hereof; (b) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (c) grant or agree to grant any increases in the rates of salaries or compensation payable to employees of the Station other than scheduled salary increases; (d) grant or agree to grant any bonus to any employee of the Station which will not be paid in full by Seller prior to the Closing; (e) provide for any new pension, retirement or other employment benefits for employees of the Station or any increases in any existing benefits; (f) modify, change or terminate any Contract without prior written permission of the Buyer; (g) change the advertising rates in effect as of the date hereof except in accordance with ordinary course of business pricing policies; (h) create, assume or permit to exist any mortgage, pledge, lien, or other charge or encumbrance or rights affecting any of the Station Assets, except for those in existence on the date of this Agreement and disclosed herein or in the Schedules attached hereto; (i) change the call letters of the Station; or (j) take any action which would cause any representation or warranty contained herein to be or become false or invalid or which could hinder or delay the consummation of the transactions contemplated by this Agreement.
9.1.5 Seller will provide Buyer prompt written notice of any material change in any of the information contained in the representations and warranties made in Article 7 or any Schedule.
9.1.6 In order that Buyer may have full opportunity to make such investigation as it desires of the affairs of the Station, Seller shall give or cause the Station to give Buyer and Buyer's counsel, accountants and engineers reasonable access to all of Seller's properties, books, Contracts, Trade Agreements, Time Sales Agreements, reports and records (including, without limitation, financial information and tax returns relating to the Station), real estate, buildings and equipment relating to the Station and to the Station's employees, and to furnish Buyer with information and copies of all documents and agreements relating to the Station and the operation thereof (including but not limited to financial and operating data and other information concerning the financial condition, results of operations and business of the Station) that Buyer may reasonably request. The rights of Buyer under this Section 9.1 shall not be exercised in such a manner as to interfere directly or indirectly with the business of the Station.
9.1.7 Within twenty-five (25) days of the end of each month, Seller shall deliver to Buyer an unaudited statement of revenue and expenses of Seller and a balance sheet for the month then ended (collectively, the "Interim Financial Statements"). Seller shall also furnish to Buyer any and all information customarily prepared by Seller concerning the financial condition and results of operations of the Station that Buyer may request.
9.1.8 Seller shall use all reasonable efforts to obtain any third party consents necessary for the assignment of any Contract.
9.1.9 Seller shall use all reasonable efforts to transfer to Buyer any discounts or other benefits which it enjoys under any arrangement as described in Section 7.20 of this Agreement.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Empire Water CORP)
Seller’s Pre-Closing Covenants. Seller covenants and agrees that, between From the date hereof through the Closing, unless Purchaser otherwise agrees in writing, the Seller Parties shall, and shall cause the Closing DateWater Companies, except as expressly permitted by this Agreement to:
(a) Cooperate with Purchaser in good faith and take such actions necessary or with desirable to promptly cause the prior written consent conditions to Purchaser’s obligations to close to be satisfied.
(b) Promptly inform Purchaser in writing of: (i) any event that could reasonably be expected to result in a breach of Buyerthe representations, warranties or covenants of the Seller Parties hereunder; or (ii) events or conditions which could reasonably be expected to result in a Material Adverse Change to the Assets, though no such notification shall act cure any such breach or Material Adverse Change.
(c) Maintain and preserve all of the Assets and other properties which are necessary for the conduct of the Business and preserve its present business relationships (including its customer relationships), and continue to compensate its agents in accordance with past custom and practice.
(d) Afford the following:
9.1.1 Seller shall conduct representatives of Purchaser and its affiliates complete access at all reasonable times to (i) the business Assets for the purpose of inspecting the same, (ii) the officers, employees, agents, attorneys, accountants, properties, Books and operations Records, and Financial Statements of the Station in Seller Parties and the ordinary Water Companies, and prudent course of business consistent with past practice shall furnish Purchaser and with the intent of preserving the ongoing operations its representatives all financial, operating and assets of the Stationother data and information as Purchaser, through its representatives, may reasonably request, including but not limited to maintaining Tax Returns for the independent identity Pre-Closing Tax Period. All of such matters shall be referred to herein as the Purchaser’s “Due Diligence.”
(e) Not (i) initiate or encourage the submission of any third party proposal relating to the acquisition of the Station.
9.1.2 Seller shall use its best efforts to preserve Assets, or the operation equity of the Station intact and preserve the business of the Station's advertisersSeller, customersor (ii) participate in any discussions regarding, suppliers and others having business relations furnish any information with the Station and continue to conduct financial operations of the Stationrespect to, including its credit and collection and pricing policies and practicesassist or participate in, in the ordinary course of business consistent with past practices.
9.1.3 Seller shall operate the Station in all material respects in accordance with FCC rules and regulations and the Station Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit otherwise facilitate any effort by any act, third party to do or failure to act, seek any of the Station Licenses foregoing. Seller will promptly notify Purchaser if any third party makes any such proposal or other licenses, permits or authorizations listed in Schedule 7.4 contact with respect to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Station Licenses, or fail to prosecute with due diligence any pending applications to the FCCforegoing.
9.1.4 Seller shall not: (a) sell, lease or dispose of or commit to sell, lease or dispose of any of the Station Assets except in the ordinary course of business and subject to the provisions of Section 1.1.2 hereof; (b) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (c) grant or agree to grant any increases in the rates of salaries or compensation payable to employees of the Station other than scheduled salary increases; (d) grant or agree to grant any bonus to any employee of the Station which will not be paid in full by Seller prior to the Closing; (e) provide for any new pension, retirement or other employment benefits for employees of the Station or any increases in any existing benefits; (f) modify, change or terminate any Contract without prior written permission of the Buyer; (g) change the advertising rates in effect as of the date hereof except in accordance with ordinary course of business pricing policies; (h) create, assume or permit to exist any mortgage, pledge, lien, or other charge or encumbrance or rights affecting any of the Station Assets, except for those in existence on the date of this Agreement and disclosed herein or in the Schedules attached hereto; (i) change the call letters of the Station; or (j) take any action which would cause any representation or warranty contained herein to be or become false or invalid or which could hinder or delay the consummation of the transactions contemplated by this Agreement.
9.1.5 Seller will provide Buyer prompt written notice of any material change in any of the information contained in the representations and warranties made in Article 7 or any Schedule.
9.1.6 In order that Buyer may have full opportunity to make such investigation as it desires of the affairs of the Station, Seller shall give or cause the Station to give Buyer and Buyer's counsel, accountants and engineers reasonable access to all of Seller's properties, books, Contracts, Trade Agreements, Time Sales Agreements, reports and records (including, without limitation, financial information and tax returns relating to the Station), real estate, buildings and equipment relating to the Station and to the Station's employees, and to furnish Buyer with information and copies of all documents and agreements relating to the Station and the operation thereof (including but not limited to financial and operating data and other information concerning the financial condition, results of operations and business of the Station) that Buyer may reasonably request. The rights of Buyer under this Section 9.1 shall not be exercised in such a manner as to interfere directly or indirectly with the business of the Station.
9.1.7 Within twenty-five (25) days of the end of each month, Seller shall deliver to Buyer an unaudited statement of revenue and expenses of Seller and a balance sheet for the month then ended (collectively, the "Interim Financial Statements"). Seller shall also furnish to Buyer any and all information customarily prepared by Seller concerning the financial condition and results of operations of the Station that Buyer may request.
9.1.8 Seller shall use all reasonable efforts to obtain any third party consents necessary for the assignment of any Contract.
9.1.9 Seller shall use all reasonable efforts to transfer to Buyer any discounts or other benefits which it enjoys under any arrangement as described in Section 7.20 of this Agreement.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Basin Water, Inc.)
