EXHIBIT 10.92
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made and entered into as of
August 9, 1996 (this "Agreement"), by and among and AMERICAN RADIO SYSTEMS
LICENSE CORP., a Delaware corporation ("License Corp."), AMERICAN RADIO SYSTEMS
CORPORATION, a Delaware corporation ("ARS") (License Corp. and ARS shall be
referred to collectively herein as "Seller"), and MEGA BROADCASTING CORPORATION,
A New Jersey corporation, or its assignee ("Buyer"):
WITNESSETH:
WHEREAS, License Corp. is the licensee of and operates radio
station WNEZ(AM), New Britain, Connecticut (the "Station") pursuant to licenses
issued by the Federal Communications Commission (the "FCC") and ARS owns all the
assets used and useful in connection with the Station; and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to
purchase from Seller, substantially all of the assets used and useful in
connection with the operation of the Station, all on the terms and subject to
the conditions set forth herein.
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
1.1 Transfer of Assets. On the Closing Date (as hereinafter defined),
subject to the conditions contained herein, Seller shall sell, assign, transfer
and convey to Buyer, and Buyer shall purchase from Seller, all of the assets,
properties, interests and rights of Seller of whatsoever kind and nature, real
and personal, tangible and intangible, which are used and useful in connection
with the operation of the Station (collectively, the "Station Assets"),
including, but not limited to, the following (but excluding the Excluded Assets
specified in Section 1.2 hereof:
(a) All licenses, permits and other authorizations relating to
the Station issued to License Corp. by the FCC or any other governmental
authority on or prior to the Closing Date, together with renewals or
modifications thereof, including, without limitation, the licenses, permits and
authorizations listed on Schedule l.l(a) attached hereto (the licenses, permits
and authorizations
issued by the FCC collectively are referred to herein as the "FCC Licenses"; the
FCC Licenses and the licenses, permits and other authorizations issued by any
other governmental authority collectively are referred to herein as the "Station
Licenses");
(b) All equipment, office furniture and fixtures, office
materials and supplies, inventory and other tangible personal property, of every
kind and description, owned or used by Seller with respect to the Station on the
date hereof, together with any additions thereto made between the date hereof
and the Closing Date, and less any retirements or dispositions thereof made in
the ordinary course of business between the date hereof and the Closing Date,
including, without limitation, the property listed on Schedule 1.1 (b) attached
hereto, (collectively, the "Tangible Personal Property");
(c) All of Seller's right, title and interest in and to each
contract, agreement and lease, written or oral, relating to the operation of the
Station listed in Schedule 1.1 (c) hereto, together with all contracts,
agreements and leases entered into or acquired by Seller between the date hereof
and the Closing Date which Buyer agrees in writing to assume (as hereinafter
defined) (collectively, the "Contracts");
(d) All of Seller's right, title and interest in and to the
call letters "WNEZ" and all trademarks, trade names, service marks, franchises,
copyrights, including registrations and applications for registration of any of
them, jingles, logos and slogans used in the conduct of the business and
operation of the Station and either owned by Seller or licensed to Seller on the
date hereof, together with any associated goodwill and any additions thereto
between the date hereof and the Closing Date, including but not limited to those
described on Schedule 1.1 (d) attached hereto (collectively, the "Intellectual
Property"), to the extent Seller has assignable rights therein;
(e) All of the real property, including transmission towers,
owned by Seller and used in connection with the Station on the date hereof and
Seller's right, title and interest in and to any buildings, fixtures,
improvements, transmission towers and other real property owned or leased by
Seller in connection with the Station, together with any additions thereto
between the date hereof and the Closing Date, including but not limited to those
described on Schedule l.l(e) attached hereto (collectively, the "Real
Property");
(f) All files, records, and books of account relating to, or
which are located at the premises of, the Station, including, without
limitation, 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, copies of all
written contracts to be assigned hereunder, logs, the public inspection file and
all software programs used in connection with the operation of the Station.
The Station Assets shall be transferred to Buyer free and
clear of all liens, encumbrances, debts, security interests, mortgages, trusts,
claims, pledges, conditional sales agreements, charges, covenants, conditions or
restrictions of any kind (collectively, "Liens"), except for (i) rights of
lessors, co-lessees or sublessees which are reflected in the leases listed in
Schedule 1.1 (e), (ii) current taxes or governmental assessments, charges, or
claims, the payment of which are not yet due and payable, (iii) statutory liens
of landlord and liens of carriers, warehousemen,
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materialmen and other similar persons and other similar persons and other
imposed by applicable law, rule or regulation incurred in the ordinary course of
business for sums not yet delinquent; (iv) liens relating to deposits made in
the ordinary course of business in connection with worker's compensation or
employment insurance and other types of social security; and (v) liens incurred
in the ordinary course of business (e.g., equipment lease encumbrances and
installment sale contract liens) ("Permitted Liens"), all of which are listed in
Schedule 1.1.
1.2 Excluded Assets. Notwithstanding anything to the contrary contained
herein, it is expressly understood and agreed that the Station Assets shall not
include the following assets along with all right, title and interest therein
(collectively, the "Excluded Assets"):
(a) All cash, cash equivalents or similar type investments of
Seller, such as certificates of deposit, Treasury bills and other marketable
securities on hand and/or in banks;
(b) All contracts or agreements to which Seller is a party
that (i) have been terminated in accordance herewith, (ii) have expired prior to
the Closing Date, or (iii) Buyer has not assumed pursuant to the terms of
Section 2.1 hereof;
(c) Seller's corporate seal, minute books, charter documents,
corporate stock record books and such other books and records as pertain to the
organization, existence or share capitalization of Seller and duplicate copies
of such records as are necessary to enable Seller to file its tax returns and
reports as well as any other records or materials relating to Seller generally
and not involving the Station's operations;
(d) All pension, profit sharing or cash or deferred (Section
401 (k)) plans and trusts and the assets thereof and any other employee benefit
plan or arrangement and the assets thereof, if any maintained by Seller;
(e) Contracts of insurance and all insurance proceeds or
claims made by Seller relating to property or equipment repaired, replaced or
restored by Seller prior to the Closing Date;
(f) Any and all claims made by Seller with respect to
transactions prior to the Closing Date and the proceeds thereof, except claims
with respect to obligations to be assumed by Buyer pursuant to Section 2.1
hereof;
(g) All trade or barter agreements, but only to the extent
they have a negative trade or barter balance in excess of $1,000 in the
aggregate;
(h) All accounts receivable relating to or arising out of the
operation of the Station prior to the Closing Date;
(i) All other rights, interests or intangible assets of Seller
which are not used in the operation of the Station; and
(j) Any books and records relating to any of the foregoing,
except to the extent that Buyer wishes to make, at its expense, a duplicate copy
of such materials in order to facilitate its operation of the Station and
conduct of its business.
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ARTICLE 2
ASSUMPTION OF OBLIGATIONS
2.1 Assumption of Obligations. Subject to the provisions of this
Section 2.1, Section 2.2 and Section 3.5, on the Closing Date, Buyer shall
assume and undertake to pay, satisfy or discharge the liabilities, obligations
and commitments of Seller arising or to be performed on or after the Closing
Date under the Contracts, except obligations which arise or result from a breach
by Seller of, or a default by Seller under, any Contract prior to the Closing
Date. All of the foregoing assumed liabilities and obligations shall be referred
to herein collectively as the "Assumed Liabilities."
2.2 Retained Liabilities. Except as set forth in Section 2.1 hereof,
Buyer expressly does not, and shall not, assume or be deemed to assume, under
this Agreement or otherwise by reason of the transactions contemplated hereby,
any liability, obligation, commitment, undertaking, expense or agreement of
Seller of any nature whatsoever, whether known or unknown or absolute or
contingent. All of such liabilities and obligations shall be referred to herein
collectively as the "Retained Liabilities." Without limiting the generality of
the foregoing, it is understood and agreed that Buyer is not agreeing to assume,
and shall not assume, any liability or obligation of Seller to Seller's
employees, including without limitation any such liability or obligation in
respect of wages, salaries, bonuses, accrued vacation or sick pay.
ARTICLE 3
CONSIDERATION
3.1 Purchase Price
In consideration for the transfer of the Station Assets, Buyer
shall pay the sum of SEVEN HUNDRED AND FIFTY THOUSAND DOLLARS ($750,000) (the
"Purchase Price") to Seller, plus or minus any adjustment to be made pursuant to
Section 3.5 hereof, and assume the Assumed Liabilities.
3.2 Deposit.
(a) Buyer has deposited with First Liberty Bank located in
Washington, D.C. ("Escrow Agent"), pursuant to a mutually agreeable escrow
agreement, the sum of SEVENTY FIVE THOUSAND DOLLARS ($75,000), in immediately
available funds, as a credit against the Purchase Price (the "Deposit").
(b) If this Agreement is terminated pursuant to Section 13 .1
(d), and Seller is not then in default of this Agreement, Seller shall be
entitled to the Deposit, and all interest accrued thereon, as liquidated
damages. It is understood and agreed that such liquidated damage amount
represents the parties' reasonable estimate of actual damages and does not
constitute a penalty. Recovery of liquidated damages shall be the sole and
exclusive remedy of Seller if Buyer fails to
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perform or breaches any of its obligations, representations, warranties or
duties under this Agreement and shall be applicable regardless of the actual
amount of damages sustained.
(c) In the event this Agreement is terminated for any reason
other than as set forth in Section 13.1 (d), Escrow Agent shall immediately
return the Deposit, plus all interest earned thereon, to Buyer.
(d) In the event Buyer consummates the transactions
contemplated hereby, the Deposit shall be applied to the Purchase Price at
Closing and all interest earned thereon shall be released to Buyer.
3.3 Payment of Purchase Price. At Closing, Buyer shall pay the Purchase
Price as follows:
(a) Buyer shall instruct the Escrow Agent to release the
Deposit to Seller, less all interest earned thereon which shall be returned to
Buyer.
(b) Buyer shall pay to Seller Six Hundred and Seventy Five
Thousand Dollars ($675,000), by wire transfer of immediately available funds,
plus or minus any adjustment to be made pursuant to Section 3.5 hereof
3.4 Allocation of Purchase Price. The Purchase Price shall be allocated
as mutually agreed upon by Buyer and Seller as depicted on Schedule 3.4 hereof
3.5 Proration of Income and Expenses/Trade Agreements.
(a) Except as otherwise provided herein, all income and
expenses arising from the conduct of the business and operation of the Station
shall be prorated between Buyer and Seller in accordance with generally accepted
accounting principles as of 11:59 p.m., Connecticut time, on the date
immediately preceding the Closing Date. Such prorations shall include, without
limitation, all ad valorem, real estate and other property taxes (but excluding
taxes arising by reason of the transfer of the Station Assets as contemplated
hereby, which, shall be paid as set forth in Article 11 of this Agreement),
business and license fees, music and other license fees, utility expenses, rents
and similar prepaid and deferred items attributable to the ownership and
operation of the Station. Revenues, expenses, taxes, costs and liabilities
earned or incurred in connection with particular programs and announcements
shall be allocated to the time of performance of such programs and announcements
without regard to the date of payment therefor. Salaries, wages, sales
commissions, fringe benefit accruals and termination or severance pay for
Seller's employees shall not be pro-rated but shall be the sole responsibility
of Seller.
(b) The prorations and adjustments contemplated by this
Section, to the extent practicable, shall be made on the Closing Date. As to
those prorations and adjustments not capable of being ascertained on the Closing
Date, an adjustment and proration shall be made within sixty (60) days of the
Closing Date. In the event of any disputes between the parties as to such
adjustments, the amounts not in dispute shall nonetheless be paid at such time
and such disputes shall be resolved by an independent certified public
accountant mutually acceptable to the parties, and the fees and expenses of such
accountant shall be paid one-half by Seller and one-half by Buyer.
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The decision of such accountant shall be conclusive and binding on the parties.
All prorations and adjustments made on the Closing Date shall be paid in the
form of an increase or decrease of the amount payable by Buyer at the Closing.
All prorations and adjustments made after the Closing shall be paid within five
(5) business days of receipt of notice of the determination thereof.
(c) If on the Closing Date Seller has any obligation to air
announcements or pre-paid programming on the Station after the Closing under
trade or other agreements executed by Seller prior to the Closing, the Purchase
Price shall be reduced by an amount equal to the remaining face amount of said
agreements but only to the extent such amount exceeds $1,000 in the aggregate.
ARTICLE 4
GOVERNMENTAL CONSENTS
4.1 FCC Consent. It is specifically understood and agreed by Buyer and
Seller that consummation of the transactions contemplated hereby is expressly
conditioned on and is subject to the prior consent and approval of the FCC ("FCC
Consent") without the imposition of any conditions on the transfer of the FCC
Licenses which would require Buyer to sell any radio station or which otherwise
reasonably is expected to have a material adverse effect on the results of
operations of Buyer.
4.2 FCC Application. Within five (5) business days after execution of
this Agreement, the parties shall file with the FCC an application for
assignment of the FCC Licenses ("FCC Application") from License Corp. to Buyer.
The parties shall thereafter prosecute the FCC Application with all reasonable
diligence and otherwise use commercially reasonable efforts to obtain the grant
of the FCC Application as expeditiously as practicable (but no party shall have
any obligation to satisfy complainants or the FCC by taking any steps which
would have a material adverse effect on the results of operations of a party or
any affiliated entity). If the FCC Consent imposes any condition on a party
hereto, such party shall use commercially reasonable efforts to comply with such
condition; provided, however, that no party shall be required hereunder to
comply with any condition that would have a material adverse effect on the
results of operations of such party or any affiliated entity. If reconsideration
or judicial review is sought with respect to the FCC Consent, the party affected
shall use commercially reasonable efforts to oppose such efforts for
reconsideration or judicial review; provided, however, such party shall not be
required to take any action which would have a material adverse effect on the
results of operations of such party or any affiliated entity. Nothing in this
Section 4.2 shall be construed to limit a party's right to terminate this
Agreement pursuant to Article 13 hereof.
ARTICLE 5
CLOSING
5.1 Closing Date. Except as otherwise mutually agreed upon by Seller
and Buyer, the consummation of the transactions contemplated herein (the
"Closing") shall occur within ten (10) business days after the FCC Consent shall
have become a Final Order (as hereinafter defined) (the "Closing Date"). As used
herein, the term "Final Order" means a written action or order issued by
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the FCC setting forth the FCC Consent and (a) which has not been reversed,
stayed, enjoined, set aside, annulled or suspended, and (b) with respect to
which (i) no requests have been filed for administrative or judicial review,
reconsideration, appeal or stay, and the time for filing any such requests and
for the FCC to set aside the action on its own motion (whether upon
reconsideration or otherwise) has expired, or (ii) in the event of review,
reconsideration or appeal, the time for further review, reconsideration or
appeal has expired. Notwithstanding the foregoing, Buyer may elect to proceed
with the Closing upon public notice of the grant of FCC Consent but prior to the
date on which the FCC Consent shall have become a Final Order upon ten ( 10)
days written notice to Seller. All actions taken at the Closing will be
considered as having been taken simultaneously and no such actions will be
considered to be completed until all such actions have been completed.
5.2 Closing Place. The Closing shall be held at such place as the
parties hereto may agree.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SELLER
License Corp. and ARS, jointly and severally, represent and warrant to
Buyer as follows:
6.1 Organization and Qualifications. Both License Corp. and ARS are
corporations duly organized, validly existing and in good standing under the
laws of the State of Delaware and have the requisite corporate power to carry on
their business as it is now being conducted.
6.2 Authority.
(a) License Corp. and ARS have full corporate power and
authority to execute and deliver this Agreement and all other agreements,
documents, certificates and instruments delivered or to be delivered hereunder
by Seller (this Agreement and such other agreements, documents, certificates and
instruments are referred to herein collectively as the "Seller Documents"), to
perform its obligations thereunder, and to consummate the transactions
contemplated thereby. The execution and delivery of the Seller Documents by
Seller and the consummation by Seller of the transactions contemplated thereby
have been, or will be prior to the Closing, as the case may be, duly authorized
by all necessary corporate action on the part of each Seller. Each of the Seller
Documents has been, or at or prior to the Closing will be, as the case may be,
duly executed and delivered by each Seller and constitute, or will constitute at
the Closing, as the case may be, a valid and binding obligation of Seller,
enforceable against Seller in accordance with its respective terms.
(b) The execution and delivery by Seller of the Seller
Documents does not or will not, and the consummation of the transactions
contemplated thereby will not, (i) conflict with, or result in a violation of,
any provision of the Articles of Incorporation or Bylaws of either Seller, (ii)
constitute or result in a breach of or default (or an event which with notice or
lapse of time, or both, would constitute a default) under, or result in the
termination or suspension of, or accelerate the performance required by, or
result in a right of termination, cancellation or acceleration of any Contract,
(iii) create any Lien upon any of the Station Assets, or (iv) constitute, or
result in, a
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violation of any judgment, ruling, order, writ, injunction, decree, statute,
law, rule or regulation applicable to Seller or any of their properties or
assets.
(c) No consent, approval, order or authorization of, notice
to, or registration, declaration of filing with, any governmental entity is
necessary in connection with the execution and delivery of the Seller Documents
by Seller or the consummation of the transactions contemplated thereby by
Seller, except for filing required documents with the FCC.
6.3 [INTENTIONALLY LEFT BLANK]
6.4 Station Licenses. Schedule l.l (a) hereto contains a true and
complete list of the Station Licenses. License Corp. is the authorized legal
holder of the Station Licenses. The Station Licenses are in good standing and in
full force and effect. The Station Licenses are all of the licenses, permits or
other authorizations from governmental and regulatory authorities necessary to
operate the Station. License Corp. is operating the Station and its facilities
in material accordance with the Station Licenses, the FCC's rules and policies
and good engineering practices. No proceedings are pending or threatened, nor do
any facts exist which may result in the revocation, modification, non-renewal or
suspension of any of the Station Licenses, the denial of any of License Corp.'s
pending applications, the issuance of any cease and desist order, the imposition
of any administrative actions by the FCC with respect to the FCC Licenses or
which may affect Buyer's ability to operate the Station in accordance with the
Station Licenses and the FCC's rules and regulations. The Station's tower and
transmitting facilities are in good repair and structurally sound, and possess
all necessary lighting and markings to comply with applicable rules of the FCC.
6.5 Tangible Personal Property. Schedule l.l(b) hereto contains a true
and complete list of the Tangible Personal Property. The Tangible Personal
Property which is leased is identified as such on Schedule 1.1 (b). The Tangible
Personal Property is all of the tangible personal property necessary to operate
the Station in the manner in which it is presently operated. Seller (a) is the
lawful owner of all of the Tangible Personal Property it purports to own, (b)
has valid leasehold interests in the Tangible Personal Property it purports to
lease, and (iii) has valid license rights (whether as a licensor or licensee) in
the Tangible Personal Property it purports to license, in all cases free and
clear of any Liens, except for Permitted Liens and Liens disclosed in Schedule
6.5 attached hereto. Seller has delivered to Buyer a true, accurate and complete
copy of each lease, license or sublicense regarding any Tangible Personal
Property leased, licensed or sublicensed by Seller. The transmitting and tower
facilities of the Station included in the Tangible Personal Property are
currently maintained and shall be maintained in accordance with good engineering
practice and in material compliance with applicable FCC rules and regulations.
The Station currently complies with and shall continue to comply with all
material engineering requirements as set forth in its FCC authorizations, and
Seller shall take all material steps necessary to insure continued compliance
therewith.
6.6 Contracts. Schedule 1.l(c) hereto contains a true and complete list
of all of the Contracts. Seller is not in violation or breach of, nor has Seller
received in writing any claim or threat that it has breached any of the terms
and conditions of, any Contract. Neither Seller nor, to their knowledge, any
other party to any Contract is in default thereunder or in breach of a material
provision thereof. Seller has delivered to Buyer a true, accurate and complete
copy of each Contract, including all amendments, supplements or modifications
thereto or waivers thereunder. Except as
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set forth on Schedule 6.6 attached hereto, neither the execution and delivery by
Seller of this Agreement nor the consummation by Seller of the transactions
contemplated under this Agreement requires the consent of any party to a
Contract.
6.7 Intellectual Property. Schedule I.I(d) hereto contains a true and
complete list of all Intellectual Property (excluding intellectual property
included in the Excluded Assets and referred to in Section 1.2). None of the
Intellectual Property was granted to Seller pursuant to any licensing or
sublicensing agreement under which Seller is the licensee or the sublicensee.
Except for the fact that the Station is operated together with stations WACH and
WZMX, which are not being assigned to Buyer, the Intellectual Property is all of
the intellectual property necessary to operate the Station in the manner it
currently is operated. No person has a right to receive a royalty or similar
payment in respect of any Intellectual Property pursuant to any contractual
arrangements entered into by Seller. Seller has not granted to any other person
any right to use the Intellectual Property pursuant to any licensing or
sublicensing agreement. Seller's use of the Intellectual Property does not
infringe upon or otherwise violate the rights of any third party in or to such
Intellectual Property or the asserted proprietary rights of others, and no
notices have been received by Seller that Seller's use of the Intellectual
Property infringes upon or otherwise violates any rights of a third party in or
to the Intellectual Property or the proprietary rights of others. The
Intellectual Property owned by Seller is free and clear of any Liens, except for
Permitted Liens and the Liens described in Schedule 6.5 attached hereto.
6.8 Employee and Labor Relations.
(a) Insofar as the Station is concerned, Seller is not a party
to any contract with any labor organization, nor has Seller agreed to recognize
any union or other collective bargaining unit, nor has any union or other
collective bargaining unit been certified as representing any of Seller's
employees. There are no organizational efforts currently being made or
threatened by or on behalf of any labor union with respect to employees of
Seller at the Station. There are no present or threatened work stoppages or
labor difficulties relating to the employees of Seller at the Station.
(b) Seller has not promised to any employee of either Seller
that Buyer will be hiring any such employee or otherwise made any offer of
employment to any employee of the either Seller on behalf of Buyer.
(c) Seller hereby covenants that all employees of the Seller
at the Station shall be terminable, without liability to Buyer, on and as of the
Closing Date, and that Buyer will have no liability to any present or past
employee of the Station for retirement, pension, bonus, termination, vacation,
or other pay, or for hospitalization, major medical, life or other insurance or
other employee benefits.
6.9 Compliance With Law. The Station Assets and the operation of the
Station are in material compliance with all applicable statutes, laws,
ordinances, regulations, rules or orders of any foreign, federal, state or local
government, governmental department or agency, including, without limitation,
all foreign, federal, state and local energy, public utility, zoning, building
code, health, employee safety, and OSHA requirements.
6.10 Brokers. Seller has not retained any broker in connection with
this transaction.
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6.11 No Litigation. There is no litigation, proceeding or investigation
pending or, to Seller's knowledge, threatened against it in any federal, state
or local court or before any administrative agency or arbitrator, or before any
other tribunal duly authorized to resolve disputes, or which seeks to enjoin any
action taken or to be taken pursuant in connection with this Agreement.
6.12 Real Properties.
(a) Schedule 1.1 (e) attached hereto is a true and complete
list of all Real Property. Seller has delivered to Buyer a true and complete
copy of the leases for the leased Real Property.
(b) Seller has good and marketable title in fee simple
absolute to the Real Property it purports to own and valid leasehold interests
in the Real Property it purports to lease, free and clear of all Liens, except
for Permitted Liens and liens described in Schedule 6.5 attached hereto.
(c) No Real Property lies in an area which is, or, to the
knowledge of Seller, will be, subject to zoning, use, or building code
restrictions which would prohibit the continued effective leasing or use of such
Real Property in the radio broadcasting business. Seller enjoys peaceful and
material undisturbed possession under all leases of leased Real Property and all
of such leases are valid and in full force and effect. To Seller's knowledge, no
other party to any lease for the Real Property is in default thereunder or
breach thereof.
(d) To the best of Seller's knowledge, there are no pending or
threatened condemnation proceedings relating to any Real Property.
6.13 Termination of Business Relationships. No supplier of Seller and
no person presently a customer, agent, independent contractor, licensor or
licensee of Seller, has notified Seller of any intention to cancel or otherwise
terminate its business relationship with Seller relating to the Station.
6.14 Environmental Matters.
(a) The term "Hazardous Materials" shall mean any substance,
material, liquid or gas defined or designated as hazardous or toxic (or by any
similar term) under any Environmental Law, including, without limitation,
petroleum products and friable materials containing more than one percent (1.0%)
asbestos by weight.
(b) "Environmental Law" shall mean any federal, state, or
local law, ordinance, order, rule, or regulation relating to pollution,
protection of the environment, or actual or threatened releases, discharges, or
emissions into the environment.
(c) The term "Environmental Condition" shall refer to any
contamination or damage to the environment caused by or relating to the use,
handling, storage, treatment, recycling, generation, transportation, release,
spilling, leaking, pumping, pouring, emptying, discharging, injection, escaping,
leaching, disposal, dumping or threatened release of Hazardous Materials by
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Seller or its predecessors in interest. With respect to claims by employees,
Environmental Condition also includes the exposure of persons to Hazardous
Materials at a work place of Seller.
(d) The term "Environmental Noncompliance" shall mean any
violation of any Environmental Law.
(e) To the best of Seller's knowledge, there are no
investigations, inquiries, administrative proceedings, actions, suits, claims,
legal proceedings or any other proceedings pending or threatened against Seller
relating to the Station or the Real Property that involves, or relates to,
Environmental Conditions, Environmental Noncompliance or the release, use or
disposal of any Hazardous Materials on any Real Property.
(f) There are no Hazardous Materials being stored or otherwise
held on, under or about the Real Property and the Real Property has been
maintained by Seller in substantial compliance with all Environmental Laws.
Notwithstanding this or any other provision of this Agreement, transformers or
other equipment which contain dielectric fluid containing levels of
polychlorinated biphenyl ("PCBs") in excess of Federal or Connecticut safety
guidelines, whichever are more stringent, are expressly excluded from all
references to (a) Hazardous Material and (b) violations of or compliance with
Environmental Laws or laws, ordinances, rules, regulations, restrictions and
resolutions related thereto. However, to Seller's knowledge, no such PCBs exist.
6.15 Taxes. Seller has filed or caused to be filed all federal income
tax returns and all other federal, state, county, local or city tax returns
which are required to be filed, and it has paid or caused to be paid all taxes
shown on those returns or on any tax assessment received by it to the extent
that such taxes have become due, or has set aside on its books adequate reserves
(segregated to the extent required by generally accepted accounting principles)
with respect thereto. To Seller's knowledge, there are no governmental
investigations or other legal, administrative, or tax proceedings pursuant to
which Seller is or could be made liable for any taxes, penalties, interest or
other charges, the liability for which could extend to Buyer as transferee of
the business of the Station, and no event has occurred that could impose on
Buyer any transferee liability for any taxes, penalties or interest due or to
become due from Seller.
6.16 Insurance. All of the Station Assets which are of any insurable
character are insured by reputable insurance companies against loss or damage by
fire and other risks to the full extent and in the manner customary for
properties and assets of that nature.
6.17 No Other Agreements to Sell the Station. Seller has no legal
obligation, absolute or contingent, to any other person or firm to sell the
Station Assets (whether through a merger, reorganization, time brokerage
agreement, or sale of stock or otherwise) or to enter into any agreement with
respect thereto.
6.18 Disclosure. The representations and warranties of Seller herein or
in any document, exhibit, statement, certificate or schedule furnished by or on
behalf of Seller to Buyer as required by this Agreement do not contain nor will
contain any untrue statement of a material fact or omits or will omit to state
any material fact necessary in order to make the statements herein or therein,
in light of the circumstances under which they were made, not misleading.
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ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
7.1 Organization. Standing and Power. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New Jersey and has the requisite corporate power to carry on its business as it
is now being conducted, and will on the Closing Date, be authorized to do
business in the State of Connecticut.
7.2 Authority. Buyer has full corporate power and authority to execute
and deliver this Agreement and all other agreements, documents, certificates and
instruments delivered or to be delivered hereunder by Buyer (the "Buyer
Documents"), to perform its obligations thereunder and to consummate the
transactions contemplated thereby. The execution and delivery of the Buyer
Documents by Buyer and the consummation by Buyer of the transactions
contemplated thereby have been duly authorized by all necessary action on the
part of Buyer. Each of the Buyer Documents has been, or will be at the Closing,
as the case may be, duly executed and delivered by Buyer and constitutes, or
will constitute at the Closing, as the case may be, a valid and binding
obligation of Buyer, enforceable against Buyer in accordance with its respective
terms.
7.3 Qualification. To its knowledge, there are no facts which, under
the Communications Act of 1934, as amended, or the existing rules and
regulations of the FCC, would disqualify Buyer as an assignee of the FCC
Licenses.
7.4 Brokers. Buyer has not retained any broker in connection with this
transaction.
7.5 No Litigation. There is no litigation, proceeding or investigation
pending or, to Buyer's knowledge, threatened against it in any federal, state or
local court or before any administrative agency or arbitrator, or before any
other tribunal duly authorized to resolved disputes, which seeks to enjoin or to
prohibit or otherwise to question the validity of any action taken or to be
taken pursuant to or in connection with this Agreement.
7.6 FCC Qualifications. Buyer is legally, financially and otherwise
duly qualified to become licensee of the Station under the Communications Act of
1934, as amended, the rules and regulations of the FCC and Section 5301 of the
Anti-Drug Abuse Act of 1988, as amended.
7.7 Disclosure. The representations and warranties of Buyer herein or
in any document, exhibit, statement, certificate or schedule furnished by or on
behalf of Buyer to Seller as required by this Agreement do not contain, nor will
contain any untrue statement of a material fact or omits or will omit to state
any material fact necessary in order to make the statements herein or therein,
in light of the circumstances under which they were made, not misleading.
ARTICLE 8 COVENANTS
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8.1 Covenants of Seller. Between the date of this Agreement and the
Closing Date:
8.1.1 Operation of Business. Seller shall:
(a) preserve and protect all of the Station Assets in
good repair and condition, normal wear and tear excepted;
(b) maintain the Station's books of account and
records in the usual and ordinary manner, and in conformity with past practices;
(c) maintain its present insurance in full force and
effect, with policy limits and scope of coverage not less than is now provided
by its present insurance;
(d) maintain and preserve License Corp.'s rights
under the Station Licenses;
(e) operate the Station in material accordance with
the FCC rules and regulations and the Station Licenses;
(f) maintain the Station towers in good repair and in
material accordance with FCC rules and good engineering. By way of amplification
and not limitation, prior to Closing, Seller shall paint the Station's towers to
the reasonable satisfaction of Buyer or, alternatively, the Purchase Price for
the Station shall be reduced by the reasonable cost to Buyer of having the
Station's towers painted after Closing;
(g) conduct the Station's business in the ordinary
course consistent with past practices or as required by this Agreement. By way
of amplification and not limitation, without the prior written consent of Buyer,
which shall not be unreasonably withheld or delayed, Seller shall not:
(i) enter into any agreement, contract,
lease or commitment in excess of $1,500 each, or $5,000 in the aggregate, other
than agreements cancelable without penalty prior to the Closing Date;
(ii) place or allow to be placed on any of
the assets or properties relating to the Station any Lien, other than Permitted
Liens without notifying Buyer, which Liens will be released prior to Closing;
(iii) sell or otherwise dispose of any of
the Station's Assets, except for dispositions in the ordinary course of business
in accordance with Section 1.1;
(iv) commit any act or omit to do any act
which will cause a material breach of any Contract;
(v) violate any law, statute, rule,
governmental regulation or order of any court or governmental or regulatory
authority (whether Federal, State or local) which would have a material adverse
effect on the Station or the Assets;
- 13 -
(vi) cause or permit by any act, or
intentional failure to act, any of the Station Licenses 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;
(vii) terminate any Contract, except as such
Contract may expire by its own terms; or
(viii) increase the salary, benefits or
other compensation payable to any Station employee, except to the extent
consistent with existing practice. Seller shall immediately notify Buyer upon
taking any such action.
8.1.2 No Other Bids. Seller shall not, and shall not authorize
or permit any officer, director or employee of either Seller, or any investment
banker, attorney, accountant or other advisor or representative retained by
Seller to, solicit, initiate, encourage (including by way of furnishing
information), endorse or enter into any agreement with respect to, or take any
other action to facilitate, any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any proposal to purchase,
directly or indirectly, or time broker the Station. Upon a violation of this
Section, in addition to any other remedies available hereunder or at law, Buyer
shall be entitled to injunctive relief, both pendente lite and permanently,
without the need to post a bond or other security or prove actual damages.
8.1.3 Access to Information.
(a) Seller shall afford, and shall cause its
respective officers, directors, employees and agents to afford, to Buyer and the
officers, employees and agents of Buyer access at all reasonable times to
Seller's officers, employees, independent contractors, agents, properties,
books, records and contracts, and shall furnish Buyer all financial,
operating and other data and information relating to the Station as Buyer,
through its respective officers, employees or agents, may reasonably request,
provided however, that no rights granted to Buyer herein shall be exercised in
such a manner so as to interfere with the operation of the business of the
Seller.
(b) No investigation pursuant to Section 8.1.3(a)
shall affect any representations or warranties of the parties herein or the
conditions to the obligations of the parties hereto.
8.1.4 Confidentiality.
(a) Each party shall hold, and shall cause its
officers, employees and agents and representatives, including, without
limitation, attorneys, accountants, consultants and financial advisors ~its
"Agents") who obtain such information to hold, in confidence, and not use for
any purpose other than evaluating the transactions contemplated by this
Agreement, any Confidential Information of another party. Confidential
Information shall include all information (written or oral) which heretofore has
been or hereafter is disclosed by a party or its Agents in
- 14 -
connection with the transactions contemplated hereunder and which is not in the
public domain, but shall not include any information which (i) is or becomes
generally available to the public other than as a result of disclosure by the
party which alleges the information is confidential or its affiliates, (ii)
becomes available to a party on a nonconfidential basis from a source, other
than the party which alleges the information is confidential or its affiliates,
which has represented that such source is entitled to disclose it, or (iii) was
known to a party on a nonconfidential basis prior to its disclosure to such
party hereunder. If this Agreement is terminated, each party shall deliver, and
cause its Agents who obtain Confidential Information of another party hereunder
to deliver to such other party all such Confidential Information that is written
(including copies or extracts thereof), whether such confidential information
was obtained before or after the execution hereof.
(b) If a party or a person to whom a party transmits
confidential information of another party is requested or becomes legally
compelled (by oral questions, interrogatories, requests for information or
documents, subpoena, criminal or civil investigative demand or similar process)
to disclose any of such confidential information, such party or person will
provide the other applicable party with prompt written notice so that such party
may seek a protective order or other appropriate remedy or waive compliance with
Section 8.1 .4(a). If such protective order or other remedy is not obtained, or
if the applicable party waives compliance with Section 8.1.4(a), the party
subject to the request will furnish only that portion of such confidential
information which is legally required and will exercise its best efforts to
obtain reliable assurance that confidential treatment will be accorded such
confidential information.
8.1.5 Notification of Certain Matters.
(a) Seller shall give prompt notice to Buyer, and
Buyer shall give prompt notice to either Seller, of (i) any material inaccuracy
in any representation or warranty made by it or them, as the case may be,
herein, or (ii) any material failure of Buyer or Seller to comply with or
satisfy any covenant, condition or agreement to be complied with or satisfied by
it or them, as the case may be, under this Agreement; provided, however, that no
such notification shall affect the representations or warranties or covenants or
agreements of the parties or the conditions to the obligations of the parties
hereunder.
(b) Seller shall give prompt notice to Buyer of any
change or event having, or which could reasonably be expected to have, a
material adverse effect on the operations or financial condition of the Station.
8.1.6 Consents and Approvals. Seller shall use commercially
reasonable efforts to obtain any and all consents, transfers, authorizations, or
approvals required for the consummation of the transactions contemplated by this
Agreement.
8.1.7 Control of Station. Buyer shall not, directly or
indirectly, control, supervise or direct the operation of the Station. Such
operation, including complete control and supervision of all Station programs,
employees and policies, shall be the responsibility of License Corp.
8.1.8 News Releases. Any news releases pertaining to the
transactions contemplated hereby shall be reviewed and approved by Buyer and
Seller, or their respective representatives, and shall be acceptable to them
prior to the dissemination thereof
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8.2 Covenants of Buyer. Buyer covenants and agrees that between the
date of this Agreement and the Closing Date, Buyer shall:
8.2.1 Actions Necessary For Transactions. Use commercially
reasonable efforts to obtain any and all consents, transfers, authorizations, or
approvals required for the consummation of the transactions contemplated by this
Agreement.
8.2.2 FCC Qualifications. Refrain from knowingly doing any act
which would disqualify Buyer from being the licensee of the Station.
ARTICLE 9
CONDITIONS
9.1 Conditions Precedent to Obligations of Buyer. The obligations of
Buyer to consummate the transactions contemplated by this Agreement are subject
to the fulfillment, prior to or at the Closing, of each of the following
conditions, except to the extent Buyer shall have waived in writing satisfaction
of such condition:
(a) The representations and warranties made by each Seller in
this Agreement shall be true and correct in all material respects as of the date
of this Agreement and on the Closing Date as though such representations and
warranties were made on such date.
(b) Seller shall have performed and complied in all material
respects with all covenants, agreements, representations, warranties and
undertakings required by this Agreement to be performed or complied with by
Seller prior to the Closing.
(c) No action, suit or proceeding before any court or any
governmental or regulatory authority shall have been commenced, no investigation
by any governmental or regulatory authority shall have been commenced, and no
action, suit or proceeding by any governmental or regulatory authority shall
have been threatened against any party hereto, seeking to restrain, enjoin,
rescind, prevent or change the transactions contemplated hereby or questioning
the validity or legality of any of such transactions or seeking damages in
connection with any of such transactions.
(d) Seller shall have delivered to Buyer all of the documents
required by Section 10.1 hereof.
(e) The FCC Consent shall have become a Final Order.
(f) Seller shall have obtained and shall have delivered to
Buyer all third-party consents to the assignment of the Contracts which consents
shall not have as a condition thereof any modifications to the terms thereof or
any payment by-Buyer to consummate the assignment.
(g) There shall have been no material adverse change since the
date of this Agreement in the Station Assets or the operations of the Station.
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9.2 Conditions Precedent to Obligations of Seller. The obligations of
Seller to consummate the transactions contemplated by this Agreement are subject
to the fulfillment, prior to or at the Closing, of each of the following
conditions, except to the extent Seller shall have waived in writing
satisfaction of such condition:
(a) The representations and warranties made by Buyer in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and on the Closing Date as though such representations and
warranties were made on such date.
(b) Buyer shall have performed and complied in all material
respects with all covenants, agreements, representations, warranties and
undertakings required by this Agreement to be performed or complied with by it
prior to the Closing.
(c) No action, suit or proceeding before any court or any
governmental or regulatory authority shall have been commenced, no investigation
by any governmental or regulatory authority shall have been commenced, and no
action, suit or proceeding by any governmental or regulatory authority shall
have been threatened against any party hereto, seeking to restrain, enjoin,
rescind, prevent or change the transactions contemplated hereby or questioning
the validity or legality of any such transactions or seeking damages in
connection with any of such transactions.
(d) Buyer shall have delivered to Seller all of the documents
required by Section
10.2 hereof.
ARTICLE 10
CLOSING DELIVERIES
10.1 Seller's Deliveries. At the Closing, Seller shall deliver or cause
to be delivered to Buyer the following:
(a) Bills of Sale, assignments and other good and sufficient
instruments of conveyance, transfer and assignment, all in form and substance
reasonably satisfactory to counsel for Buyer, as shall be effective to vest in
Buyer or its permitted assignee, good and marketable title in and to the Station
Assets.
(b) A certificate, executed by officers of each Seller in such
detail as Buyer shall reasonably request, certifying that all the
representations and warranties of Seller stated herein are true and correct as
of the Closing Date and to the fulfillment or satisfaction of the conditions set
forth in this Agreement. The delivery of such certificate shall constitute a
representation and warranty of Seller as to the statements set forth therein.
(c) Resolutions of the Board of Directors of each Seller
authorizing the execution, delivery and performance of the Seller Documents by
Seller, certified by the secretaries of each Seller.
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(d) Updated Schedules reflecting any changes necessary to
render the information contained therein true and accurate on the Closing Date.
(e) Originals or copies of all program, operations,
transmissions, or maintenance logs and all other records required to be
maintained by the FCC with respect to the Station, including the Station's
public file, shall be left at the Station and thereby delivered to Buyer.
(f) A signed agreement in form mutually agreeable to Buyer and
Seller granting to Buyer the right to air certain sporting events on the
Station, including games of the Hartford Whalers and the Boston Celtics.
10.2 Buyer's Deliveries.
(a) At the Closing, Buyer shall deliver or cause to be
delivered to Seller the following:
(i) The payments required under Section 3.3 hereof.
(ii) An Assignment and Assumption Agreement
reasonably satisfactory in form and substance to counsel to Seller effecting the
assumption of the Assumed Liabilities on the terms and conditions hereof.
(iii) A certificate, executed by an officer of Buyer,
in such detail as Seller shall reasonably request, certifying to the fulfillment
or satisfaction by Buyer of the conditions set forth in this Agreement. The
delivery of such certificate shall constitute a representation and warranty of
Buyer as to the statements set forth therein.
(iv) Resolutions of the Board of Directors of Buyer
authorizing the execution, delivery and performance of the Buyer's Documents by
Buyer, certified by the secretary of Buyer.
(v) A signed agreement in form mutually agreeable to
Buyer and Seller granting to Buyer the right to air certain sporting events on
the Station, including games of the Hartford Whalers and the Boston Celtics.
ARTICLE 11
TRANSFER TAXES, FEES AND EXPENSES
11.1 Expenses. Except as set forth in Sections 11.2 and 11.3 hereof,
each party hereto shall be solely responsible for all costs and expense incurred
by it in connection with the negotiation and preparation of the Agreement and
the transactions contemplated thereby.
11.2 Transfer Taxes and Similar Charges. Seller and Buyer each shall be
responsible for one-half of all recordation, transfer and documentary taxes and
fees, and any excise, sales or use taxes imposed by reason of the transfer of
the Station Assets in accordance with this Agreement.
- 18 -
11.3 Governmental Filing or Grant Fees. Any filing or grant fees
imposed by any governmental authority the consent of which is required to the
transactions contemplated hereby shall be borne equally by Buyer and Seller.
ARTICLE 12
INDEMNIFICATION
12.1 Survival of Representations and Warranties. All representations
and warranties made in this Agreement shall survive the Closing for a period of
twelve ( 12) months from the Closing Date; provided, however, the
representations and warranties regarding tax matters shall survive the Closing
Date until the expiration of all applicable statutes of limitations. The right
of any party to recover Damages (as defined in Section 12.2 hereof) on any claim
shall not be affected by the termination of any representations and warranties
as set forth above provided that notice of the existence of such claim has been
given by the Indemnified Party (as hereinafter defined) to the Indemnifying
Party (as hereinafter defined) prior to such termination.
12.2 Indemnification of Buyer by Seller. License Corp. and ARS, jointly
and severally, shall indemnify and hold Buyer and its attorneys, affiliates,
representatives, agents, partners, successors or assigns harmless from and
against any liability, loss, cost, expense, judgment, order, settlement,
obligation, deficiency, claim, suit, proceeding (whether formal or informal),
investigation, Lien or other damage, including, without limitation, attorney's
fees and expenses, (all of the foregoing items for purposes of this Agreement
are referred to as "Damages"), resulting from, arising out of or incurred with
respect to:
(a) A breach of any representation, warranty, covenant or
agreement of Seller contained herein, subject to notice of a claim being given
before the expiration of the applicable period specified in Section 12.1 hereof
with respect to the representations or warranties by Seller contained herein;
(b) The Retained Liabilities; or
(c) Any and all claims, liabilities or obligations of any
nature, absolute or contingent, relating to the business and operation of the
Station prior to the Closing Date.
The term "Damages" as used in this Agreement is not limited to matters asserted
by third-parties against a party, but includes Damages incurred or sustained by
a party in the absence of third party claims.
12.3 Indemnification of Seller by Buyer. Buyer shall indemnify and hold
Seller and its respective attorneys, affiliates, representatives, agents,
officers, directors, successors or assigns, harmless from and against any
Damages resulting from, arising out of, or incurred with respect to:
(a) A breach of any representation, warranty, covenant or
agreement by Buyer contained herein, subject to notice of a claim being given
before the expiration of the applicable period specified in Section 12.1 hereof
with respect to the representations and warranties made by Buyer herein;
- 19 -
(b) The Assumed Liabilities; or
(c) Any and all claims, liabilities or obligations of any
nature, absolute or contingent, relating to the business and operation of the
Station as conducted by Buyer on and after the Closing Date.
12.4 Procedures.
(a) Promptly after the receipt by any party (the "Indemnified
Party") of notice of (a) any claim or (b) the commencement of any action or
proceeding which may entitle such party to indemnification under this Section,
such party shall give the other party (the "Indemnifying Party") written notice
of such claim or the commencement of such action or proceeding and shall permit
the Indemnifying Party to assume the defense of any such claim or any litigation
resulting from such claim. The failure to give the Indemnifying Party timely
notice under this subsection shall not preclude the Indemnified Party from
seeking indemnification from the Indemnifying Party unless, and then only to the
extent, such failure has materially prejudiced the Indemnifying Party's ability
to defend the claim or litigation. If such claim does not arise from the claim
of a third party, the Indemnifying Party shall have 30 days after such notice to
cure the conditions giving rise to such claim to the Indemnified Party's
satisfaction. Failure by the Indemnifying Party to notify an Indemnified Party
of its election to defend any such claim or action by a third party within 30
days after notice thereof shall have been given to the Indemnifying Party shall
be deemed a waiver by the Indemnifying Party of its rights to defend such claim
or action.
(b) If the Indemnifying Party assumes the defense of any such
claim or litigation resulting therefrom with counsel reasonably acceptable to
the Indemnified Party, the Indemnifying Party shall take all steps necessary in
the defense or settlement of such claim or litigation resulting therefrom and
hold the Indemnified Party harmless from and against any Damages caused by or
arising out of any settlement approved by the Indemnifying Party or any judgment
in connection with such claim or litigation resulting therefrom; however, the
Indemnified Party may participate, at its expense, in the defense of such claim
or litigation provided that the Indemnifying Party shall direct and control the
defense of such claim or litigation. The Indemnified Party shall cooperate and
make available all books and records reasonably necessary and useful in
connection with the defense. Except with the prior written consent of the
Indemnified Party, the Indemnifying Party shall not, in the defense of such
claim or any litigation resulting therefrom, consent to the entry of any
judgment (other than a judgment of dismissal on the merits without cost) or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or the plaintiff to the Indemnified Party of
a release from all Damages in respect of such claim or litigation.
(c) If the Indemnifying Party shall not assume the defense of
any such claim or litigation resulting therefrom, the Indemnified Party may, but
shall have no obligation to, defend against such claim or litigation in such
manner as it may deem appropriate, and the Indemnified Party may compromise or
settle such claim or litigation without the Indemnifying Party's consent. Within
30 days of written request, the Indemnifying Party shall promptly reimburse the
Indemnified Party for the amount of all Damages incurred by the Indemnified
Party in connection with the defense against or settlement of such claim or
litigation. If no settlement of the claim or litigation is made, the
Indemnifying Party shall promptly reimburse the Indemnified Party for the amount
of any judgment rendered with respect to such claim or in such litigation.
- 20 -
12.5 Indemnity Payments. The parties agree that any payments made
pursuant to this Article 12 will be treated by the parties on all applicable tax
returns as an adjustment to the Purchase Price.
ARTICLE 13
TERMINATION RIGHTS
13.1 Termination. This Agreement may be terminated, by written notice
given by any party (provided such party is not in breach of any of its material
obligations, representations, warranties or duties hereunder) to the other party
hereto, at any time prior to the Closing Date as follows, and in no other
manner.
(a) By mutual written consent of the parties;
(b) By either Buyer, on the one hand, or either Seller, on the
other hand, if a court of competent jurisdiction or governmental, regulatory or
administrative agency or commission shall have issued an order, decree or ruling
or taken any other action, in each case permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement and such
order, decree, ruling or other action shall have become final and nonappealable;
(c) By Buyer, if either Seller fails to perform or breaches
any of its material obligations, representations, warranties or duties under
this Agreement, and Seller has not cured such failure to perform or breach
within 15 days after delivery of written notice from Buyer;
(d) By either Seller, if Buyer fails to perform or breaches
any of its material obligations, representations, warranties or duties under
this Agreement, and Buyer has not cured such failure to perform or breach within
thirty (30) days after delivery of written notice from Seller;
(e) By any party, if the FCC denies the FCC Application;
(f) By any party, if the FCC Consent has not been obtained
within one (1) year of the date hereof.
13.2 Liability. Upon termination, (i) if neither party is in breach of
a material provision of this Agreement, the parties hereto shall have no further
obligations to each other, except as provided in Section 8.1.4.
(Confidentiality) hereof; (ii) if Buyer is in breach of a material provision of
this Agreement, Seller, provided they are not then in default of this Agreement,
shall be entitled only to liquidated damages as provided in Section 3.2(b)
hereof; or (iii) if either Seller is in breach of a material provision of this
Agreement, Buyer, provided it is not then in default of this Agreement, shall be
entitled to the return of the Deposit, together with all earnings accrued
thereon, plus any other remedies that are available to the Buyer.
ARTICLE 14
MISCELLANEOUS PROVISIONS
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14.1 Specific Performance. Seller and Buyer each recognize and
acknowledge that, in the event that Seller shall fail to perform its obligations
to consummate the transaction contemplated hereby, money damages alone will not
be adequate to compensate Buyer for its injury. Seller and Buyer therefore each
agree and acknowledge that, in the event of either Seller's failure to perform
its obligation to consummate the transaction contemplated hereby, Buyer shall be
entitled to specific performance of the terms of this Agreement and of Seller's
obligation to consummate the transaction contemplated hereby, provided Buyer is
not in material default hereunder.
14.2 Risk of Loss. The risk of loss or damage to any of the Station
Assets prior to the Closing Date, by whatever cause, shall be upon Seller. In
the event of such loss or damage, Seller shall notify Buyer of the same within
five (5) days and shall promptly restore, repair or replace such loss or damage
with items of equivalent quality and value. Buyer may renegotiate the purchase
price or terminate this Agreement if the loss or damage results in a material
reduction in the value of the Station. Alteratively, at the election of the
Buyer, Buyer may reduce the price to be paid by Buyer by the amount it would
cost to fully restore, replace or repair such loss or damage or Buyer may elect
to pay the Purchase Price and accept an assignment of Seller's insurance
proceeds from the loss.
14.3 Benefit and Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. No party may voluntarily or involuntarily assign its
interest under this Agreement without the prior written consent of the other
parties, which consent shall not be unreasonably withheld or delayed.
14.4 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.
14.5 Governing Law. This Agreement and the rights of the parties hereto
shall be governed, construed and interpreted in accordance with the laws of the
State of Connecticut without giving effect to the choice of law principles
thereof.
14.6 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
14.7 Severability. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
14.8 Attorneys' Fees. Should any party hereto institute any action or
proceeding at law or in equity to enforce any provision of this Agreement,
including an action for declaratory relief, or for damages by reason of an
alleged breach of any provision of this Agreement, or otherwise in connection
with this Agreement, or any provision hereof, the prevailing party shall be
entitled to recover from the losing party or parties reasonable attorneys' fees
and costs for services rendered to the prevailing party in such action or
proceeding.
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14.9 Multiple Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
14.10 Notices. Unless applicable law requires a different method of
giving notice, any and all notices, demands or other communications required or
desired to be given hereunder by any party shall be in writing. Assuming that
the contents of a notice meet the requirements of the specific Section of this
Agreement which mandates the giving of that notice, a notice shall be validly
given or made to another party if served either personally or if deposited in
the United States mail, certified or registered, postage prepaid, or if sent by
overnight courier service, and if addressed to the applicable party as set forth
below. If such notice, demand or other communication is served personally,
service shall be conclusively deemed given at the time of such personal service.
If such notice, demand or other communication is given by mail, service shall be
conclusively deemed given seventy-two (72) hours after the deposit thereof in
the United States mail. If such notice, demand or other communication is given
by overnight courier, service shall be conclusively deemed given at the time of
confirmation of delivery. The addresses for the parties are as follows:
If to Buyer:
Xxxxxxx Xxxxxx
Mega Broadcasting Corporation
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx Xxxxxx, XX 00000
With a copy to:
Xxxxxxxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxxx Leader & Xxxxxxxx, L.L.P.
0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
and
If to Seller:
Xxxxxxx X. Xxxxxx, Esq.
Vice President/Secretary
American Radio Systems Corporation
000 Xxxxxxxxxx Xxx.
Xxxxxx, Xxxxxxxxxxxxx 00000
With a copy to:
Xxxxxx X. Xxxxx, Esq.
Rosenrnan & Colin
0000 x0xx Xxxxxx, X.X.
- 00 -
Xxxxxxxxxx, X.X. 00000
Any party hereto may change its or his address for the purpose of receiving
notices, demands and other communications as herein provided, by a written
notice given in the aforesaid manner to the other parties hereto.
14.11 Incorporation by Reference. All Exhibits and Schedules attached
hereto or to be delivered in connection herewith are incorporated herein by this
reference.
14.12 Choice of Forum. No claim, demand, action, proceeding,
litigation, hearing, motion or lawsuit arising here from or with respect hereto
shall be commenced or prosecuted in any jurisdiction other than the State of
Connecticut, and each party hereby irrevocably consents to the jurisdiction of
the state and federal courts in the State of Connecticut seated in Hartford
County.
14.13 Waivers. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver constitute a continuing waiver.
No waiver shall be binding unless executed in writing by the party making the
waiver.
14.14 No Third Party Beneficiaries. Nothing herein expressed or implied
is intended or shall be construed to confer upon or give to any person or entity
other than the parties hereto and their successors or permitted assigns, any
rights or remedies under or by reason of this Agreement.
14.15 Entire Agreement. This Agreement, the Schedules and Exhibits
attached hereto and the ancillary documents provided for herein, constitute the
entire agreement and understanding of the parties hereto relating to the matters
provided for herein and supersede any and all prior agreements, arrangements,
negotiations, discussions and understandings relating to the matters provided
for herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first above written.
MEGA BROADCASTING CORPORATION
By:_____________________________
Xxxxxxx Xxxxxx, President
AMERICAN RADIO SYSTEMS LICENSE
CORP.
By:______________________________
Its:_____________________________
AMERICAN RADIO SYSTEMS
CORPORATION
By:______________________________
Its:_____________________________
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
MEGA BROADCASTING CORPORATION
By:_____________________________
Xxxxxxx Xxxxxx, President
AMERICAN RADIO SYSTEMS LICENSE
CORP.
By:_____________________________
Its:____________________________
AMERICAN RADIO SYSTEMS
CORPORATION
By:_____________________________
Its:____________________________
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