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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made this 20th day
of February, 1996 by and among: (A) CHESAPEAKE SECURITIES, INC., a Delaware
corporation ("Buyer"); (B) NOBLE BROADCAST OF SAN DIEGO, INC., a California
corporation ("Noble San Diego"); (C) SPORTS RADIO, INC., a California
corporation ("Sports Radio"); and (D) NOBLE BROADCAST CENTER, INC., a California
corporation ("Broadcast Center"). Noble San Diego, Sports Radio and Broadcast
Center are each sometimes referred to herein as a "Seller", and Noble San Diego,
Sports Radio and Broadcast Center are sometimes referred to collectively herein
as "Sellers".
RECITALS
WHEREAS, Sellers own and employ various assets in connection with the
provision of programming to, and the sale of advertising time for broadcast by,
radio stations XETRA-AM and XETRA-FM (together the "Stations" and each
individually a "Station") owned by Radiodifusora Del Xxxxxxxx, X.X. ("R.D.P.");
and
WHEREAS, Sellers desire to sell, and Buyer desires to purchase,
substantially all of the assets and assume certain obligations associated with
R.D.P.'s operation of the Stations, 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 terms and subject to the
conditions hereof and subject to Section 1.2, Sellers hereby sell, assign,
transfer, convey and deliver to Buyer, and Buyer hereby purchases and assumes
from Sellers, all of the right, title and interest of Sellers in and to
substantially all of the assets, properties, interests and rights of Sellers of
whatsoever kind and nature, real and personal, tangible and intangible, owned or
leased by Sellers as the case may be, wherever situated, which are associated
with the provision of programming to, and the sale of advertising time for
broadcast by, the Stations (the "Stations Assets"), including but not limited to
all of Sellers' right, title and interest in and to the assets, properties,
interests and rights described in this Section 1.1:
1.1.1 all equipment, office furniture and fixtures, office
materials and supplies, inventory, spare parts and all other tangible personal
property of every kind and description, and
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Sellers' rights therein, owned, leased or held by Sellers and used or useful in
connection with the operations of the Stations;
1.1.2 the following contracts (together, the "Operations
Contracts"): (A) all agreements for the sale of advertising time on the
Stations; (B) all contracts which are for consideration other than cash, such as
merchandise, services or promotional consideration arising in the ordinary
course of business consistent with the past practices of Sellers (including
without limitation, the trade agreement pursuant to which Noble San Diego
occupies Suites 280G and 280H at the Airport Executive Suites in Orange County,
California); and (C) miscellaneous contracts entered into in the ordinary course
of the Sellers business of providing programming to, and the sale of advertising
time for broadcast by, the Stations or owning the real property described in
Section 1.1.11 below;
1.1.3 all of the employment agreements for the employees of
Sellers;
1.1.4 the following real estate leases (the "Real Estate
Contracts"): (A) that certain Lease Agreement between Broadcast Media Center and
Noble San Diego, dated August 15, 1995, with respect to which Noble San Diego is
granted a subleasehold interest in certain office and studio space located at
0000 Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx; (B) Standard Industrial
Lease between Noble Broadcast Center, Inc. as Landlord and Noble Broadcast
Group, Inc. as Tenant, dated January 1, 1996, for three offices suites on the
second floor at 0000 Xxxxxxx Xxxxxxx, Xxx Xxxxx, Xxxxxxxxxx; (C) Standard
Industrial Lease dated December 30, 1991 between Noble Broadcast Center, Inc. as
Landlord and Noble Broadcast of San Diego, Inc. as Tenant, for the first floor
(excluding conference room and lobby) for offices at 0000 Xxxxxxx Xxxxxxx, Xxx
Xxxxx, Xxxxxxxxxx; (D) Standard Sublease dated December 30, 1991 between Noble
Broadcast of San Diego, Inc. as Sublessor and Sports Radio, Inc. as Sublessee,
for approximately 1,926 sq.ft. on the first and second floor of the office
building located at 0000 Xxxxxxx Xxxxxxx, Xxx Xxxxx, Xxxxxxxxxx; and (E)
Standard Industrial Lease dated January 1, 1996 between Noble Broadcast Center,
Inc. as Landlord and Nova Marketing Group, Inc. as Tenant, dated January 1,
1996, for 2 rooms and 2 offices on the second floor at 0000 Xxxxxxx Xxxxxxx, Xxx
Xxxxx, Xxxxxxxxxx.
1.1.5 the following contracts (collectively,the "Major
Contracts"): (A) Exclusive Sales Agency Agreement, dated May 12, 1978, between
R.D.P. and Noble San Diego (f/k/a Noble Multimedia Communications, Inc.), as
successor in interest to X-TRA Radio America, Inc., as amended by a certain
Amendment to Exclusive Sales Agency Agreement, dated as of November 1, 1986, by
and between R.D.P. and Noble San Diego (the "Sales Agency Agreement"); (B)
Option Agreement, dated January 13, 1986, by and among Xxx X. Xxxxx, Xxxxxx X.
Xxxxx, Xx., Xxxxxx X. Xxxxx, Xxxxxx Xxxxx da Villabolos and Xxxxxxx Xxxxxxxxxx,
as Shareholders, and Xxxx X.
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Xxxxx, as Optionee; Xxxx X. Xxxxx assigned his rights in such Option Agreement
to Noble San Diego pursuant to an Assignment of Option Agreement, dated August
18, 1995; (C) Radio Broadcast Agreement, dated as of September 10, 1994, by and
between Sports Radio, Inc. and LAK Acquisition Corp. (the "Kings Contract"); (D)
Radio Broadcast/Sports Marketing Agreement, dated July 18, 1995, between Noble
Broadcast Group dba Cardinal Marketing Group and The Board of Trustees of The
Xxxxxx Xxxxxxxx Junior University (the "Stanford Contract"); (E) Agreement,
dated as of June 1, 1994, between Sports Radio, Inc. and The Regents of the
University of California; (F) Agreement, dated September 10, 1986, as amended on
November 15, 1987, December 31, 1990 and March 18, 1993, between Chargers
Football Company and Sports Radio, Inc. as successor in interest to Noble
Broadcast of San Diego, Inc. (G) Program License Agreement, dated as of January
27, 1995, by and between Sagittarius Broadcasting Corporation, One Twelve, Inc.
and Noble Broadcast Group, Inc. (the "Xxxxx Contract"); (H) Memorandum from Xxxx
Xxxxxxxxxxx to Xxxxx Xxxxxxxx, Esq., dated September 28, 1994 regarding the Xxx
Xxxx Show (Van Smack, Inc.); and (I) Skystar Channel Service Agreement between
GTE Spacenet Corporation and Noble Broadcast of San Diego, Inc., dated February
9, 1989, as amended by an Amendment No. 1 (letter dated February 2, 1989) and an
Amendment No. 2 dated September 22, 1992 (the "Skystar Contract"). The
Operations Contracts, the Employment Contracts, the Real Estate Contracts and
the Major Contracts are referred to collectively herein as the "Contracts" and
sometimes each individually as a "Contract."
1.1.6 all accounts receivable arising prior to the Closing Date
(as defined in Section 4.1) in connection with the operation of the Stations,
including but not limited to accounts receivable for advertising revenues for
programs and announcements performed prior to the Closing Date and other
broadcast revenues for services performed prior to the Closing Date (the
"Accounts Receivable");
1.1.7 all of Seller's rights in and to any call letters,
trademarks, trade names, service marks, franchises, copyrights, including
registrations and applications for registration of any of them, computer
software, programs and programming material of whatever form or nature, jingles,
slogans, the Stations' logos and all other logos or licenses to use same and all
other intangible property rights of Sellers, which are used or useful in
connection with the operation of the Stations;
1.1.8 all of Sellers' rights in and to all the files,
documents, records, and books of account relating to the operation of the
Stations or to the Stations Assets, including, without limitation, the Stations'
local public files, programming information and studies, technical information
and engineering data, news and advertising studies or consulting reports,
marketing and demographic data, sales correspondence, lists of advertisers,
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promotional materials, credit and sales reports and filings with any federal,
state, local or foreign governmental or administrative agency, court, or other
authority (each, a "Governmental Entity" and collectively, "Governmental
Entities"), all written Contracts to be assigned hereunder, logs, software
programs and books and records relating to employees, financial, accounting and
operation matters (other than duplicate copies of such files, records, books of
account, written contracts, logs, software programs and books and records
relating to employees, financial, accounting and operational matters which
Seller may elect to retain ("Duplicate Records")), but excluding records
relating solely to any Excluded Asset (as hereinafter defined);
1.1.9 all of Seller's rights under manufacturers' and vendors'
warranties relating to items included in the Stations Assets and all similar
rights against third parties relating to items included in the Stations Assets;
1.1.10 all insurance proceeds or claims for insurance proceeds
made by Sellers relating to Stations Assets purchased by Buyer hereunder and
which proceeds have not been applied to the repair, replacement or restoration
of such Stations Assets by Sellers prior to the Closing Date (as hereinafter
defined);
1.1.11 all real property owned in fee by Sellers together with
all appurtenant easements thereunto and all structures, fixtures and
improvements located thereon, and which property includes only that real
property commonly known as 0000 Xxxxxxx Xxxxxxx, Xxx Xxxxx, Xxxxxxxxxx;
1.1.12 all goodwill associated with the operation of the
Stations; and
1.1.13 except for Excluded Assets, such other assets,
properties, interests and rights owned by Sellers that are used or useful in
connection with the operation of the Stations.
Sellers agree that the Stations Assets are being
transferred to Buyer hereby free and clear of all debts, security interests,
mortgages, trusts, claims, pledges or other liens, liabilities, encumbrances
or rights of third parties whatsoever except liens for taxes not yet due and
payable and rights of third parties under the Contracts.
1.2 Excluded Assets. Notwithstanding anything to the contrary
contained herein, it is expressly understood and agreed that the Stations Assets
do not include the following assets along with all rights, title and interest
therein (the "Excluded Assets"):
1.2.1 all cash and cash equivalents of Sellers on hand and/or
in banks;
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1.2.2 with respect to each Seller, their 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
such Seller as well as any other records or materials relating to such Seller
generally and not involving or relating to the Stations Assets or the operation
or operations of the Stations;
1.2.3 contracts of insurance;
1.2.4 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 Sellers;
1.2.5 any shares of stock of Sports Radio and Nobro S.C., a
Mexican corporation ("Nobro") owned by Noble San Diego;
1.2.6 any shares of stock of Nobro S.C. and Sports Radio
Broadcasting, Inc., a California corporation owned by Sports Radio;
1.2.7 any permits issued by the Federal Communications
Commission pursuant to Section 325(c) of the Communications Act of 1934, as
amended ("Section 325(c) Permit") and held by Sellers; and
1.2.8 any Duplicate Records.
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
2.1 Assumption of Obligations. Buyer hereby assumes the
obligations of Sellers arising or to be performed on or after the Closing Date
(except to the extent such obligations arise out of activities, events or
transactions occurring, or conditions existing, on or prior to the Closing Date)
under: (A) the Operations Contracts; (B) the Employment Contracts; (C) the Real
Estate Contracts; and (D) the Major Contracts. All of the foregoing liabilities
and obligations shall be referred to herein collectively as the "Assumed
Liabilities."
2.2 Retained Liabilities. Notwithstanding anything contained in
this Agreement to the contrary, Buyer expressly does not, and shall not, assume
or agree to pay, satisfy, discharge or perform and will not be deemed by virtue
of the execution and delivery of this Agreement or any agreement, instrument or
document delivered pursuant to or in connection with this Agreement or otherwise
by reason of or in connection with the consummation of the transactions
contemplated hereby or thereby, to have assumed or to have agreed to pay,
satisfy, discharge or perform, any liabilities, obligations or commitments of
Sellers of any nature whatsoever whether accrued, absolute, contingent or
otherwise and whether or
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not disclosed to Buyer (including without limitation any intercompany
indebtedness), other than the Assumed Liabilities. Sellers will retain and pay,
satisfy, discharge and perform in accordance with the terms thereof, all
liabilities and obligations of Sellers, other than the Assumed Liabilities,
including but not limited to, the obligation to assume, perform, satisfy or pay
any liability, obligation, agreement, debt, charge, claim, judgment or expense
incurred by or asserted against Sellers related to taxes (except as expressly
provided for in the Stock Agreement (as defined in Article 5 hereof)),
environmental matters, employment contracts (other than the "Employment
Contracts), employee benefits, severance of employees (except as expressly
provided for in the Stock Agreement), product liability or warranty, negligence,
contract breach or default, or other obligations, claims or judgments asserted
against Buyer as successor in interest to Sellers. All of such liabilities,
obligations and commitments of Sellers described in this Section 2.2 shall be
referred to herein collectively as the "Retained Liabilities."
ARTICLE 3
CONSIDERATION
3.1 Delivery of Consideration. In consideration for the sale of
the Stations Assets to Buyer, in addition to the assumption of certain
obligations of Sellers pursuant to Section 2.1 above, Buyer shall, at the
Closing (as hereinafter defined), deliver to Sellers Forty Three Million Five
Hundred Thousand Dollars ($43,500,000) (the "Purchase Price"), which includes
amounts paid for the Accounts Receivable. The Purchase Price shall be payable by
wire transfer of immediately available funds.
3.2 Proration of Income and Expenses; Trade Agreements Adjustment.
3.2.1 Except as otherwise provided herein, all prepaid and
deferred income and expenses relating to the Stations Assets or the Assumed
Liabilities and arising from the conduct of the business and operations of the
Stations shall be prorated between Buyer and Sellers in accordance with
generally accepted accounting principles as of 11:59 p.m., San Diego, California
time, on the date immediately preceding the Closing Date. Such prorations shall
include, without limitation, all ad valorem, real estate and other property
taxes, business and license fees, music and other license fees, utility
expenses, amounts due under the Operations Contracts, the Employment Contracts,
the Real Estate Contracts and the Major Contracts, rents and similar prepaid and
deferred items. Real estate taxes shall be apportioned on the basis of taxes
assessed for the preceding year, with a reapportionment as soon as the new tax
rate and valuation can be ascertained.
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3.2.2 Except as otherwise provided herein, the prorations and
adjustments contemplated by this Section 3.2, 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 ninety (90) calendar days of the Closing Date. In the event of any
disputes between the parties as to such prorations and adjustments, the amounts
not in dispute shall nonetheless be paid at the Closing and such amounts in
dispute shall be determined 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 Sellers and one-half by Buyer.
3.3 Allocation of Purchase Price. The Purchase Price shall be
allocated among the Assets in a manner determined by Buyer based upon an
appraisal prepared by an appraiser selected by Buyer. Sellers and Buyer agree to
use the allocations determined by Buyer for all tax purposes, including without
limitation, those matters subject to Section 1060 of the Internal Revenue Code
of 1986, as amended.
ARTICLE 4
CLOSING
4.1 Closing. The consummation of the transactions contemplated
hereby (the "Closing") is being held simultaneously with the execution hereof on
the date first written above (the "Closing Date") commencing at 8:00 a.m.
eastern time in the offices of Xxxxxxx, Head & Xxxxxxx in Cincinnati, Ohio.
4.2 Time Brokerage Agreement. At the Closing, Buyer and Noble
San Diego and Sports Radio (together, "Permittee") shall enter into a mutually
acceptable Time Brokerage Agreement (the "Time Brokerage Agreement") pursuant to
which Permittee shall deliver Buyer's programming for broadcast by the Stations
during the term thereof. Permittee shall cooperate fully with Buyer, and shall
fully perform their obligations under the Time Brokerage Agreement during the
term thereunder.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLERS
Simultaneously with the execution hereof and at the Closing, Jacor
Communications, Inc. (the parent company of Buyer) ("Jacor") and Noble Broadcast
Group, Inc. (the ultimate parent company of each of Sellers) ("Noble"), among
others, are entering into a certain Stock Purchase and Stock and Warrant
Redemption Agreement (the "Stock Agreement") providing for, among other things,
the purchase by Jacor of all of the issued and outstanding capital stock of
Noble. Each Seller acknowledges and agrees that Buyer is entering into this
Agreement in reliance upon the "Sellers
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Representations and Warranties" and the "Company's Representations and
Warranties" each as defined and set forth in the Stock Agreement. In order to
further induce Buyer to enter into this Agreement, Sellers jointly and severally
make all of the representations and warranties that Noble makes to Jacor in the
Stock Agreement, as the same may be qualified, as indicated in the Stock
Agreement, by information disclosed in the Disclosure Letter (as defined in the
Stock Agreement) (the "Sellers Representations and Warranties"). The Sellers
Representations and Warranties shall be true and correct in all respects as of
the date hereof subject to the provisions hereof regarding the expiration
thereof.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer acknowledges and agrees that Sellers are entering into this
Agreement in reliance upon the "Buyer's Representations and Warranties" as
defined and set forth in the Stock Agreement. In order to further induce Sellers
to enter into this Agreement, Buyer hereby makes all of the Buyer's
Representations and Warranties to Sellers (the "Buyer's Representations and
Warranties"). The Buyer's Representations and Warranties shall be true and
correct in all respects as of the date hereof subject to the provisions hereof
regarding the expiration thereof.
ARTICLE 7
GOVERNMENTAL CONSENTS
7.1 Required Filings and Approvals. From and after the Closing,
Buyer and Sellers shall cooperate with each other in promptly making any filings
and seeking any approvals, if any, required to be made with or obtained from any
federal, state, local or foreign governmental or administrative agency, court,
or other authority (each, a "Governmental Entity" and collectively,
"Governmental Entities") in connection with the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby and in
promptly making all such filings and promptly seeking the related consents,
approvals, permits or authorizations from such Governmental Entities.
ARTICLE 8
FURTHER AGREEMENTS
8.1 Confidentiality. Except as expressly provided in the Stock
Agreement, no party hereto shall make any press releases, public statements or
announcements concerning the transactions contemplated hereby.
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8.2 Accounts Receivable. Sellers acknowledge that all Accounts
Receivable are being sold by Sellers to Buyer hereunder. From and after the
Closing Date, Sellers agree to use reasonable efforts to assist Buyer in
collection of the Accounts Receivable in the normal and ordinary course of
business. Neither Sellers nor their agents shall make any direct solicitation of
any account debtor for collection purposes or institute litigation for the
collection of amounts due without the prior consent of Buyer. Sellers shall be
immediately turn over to Buyer any amounts relating to the Accounts Receivable
that are paid directly to Sellers. Buyer agrees to promptly apply amounts
received upon collection of the Accounts Receivable to the payment of Sellers'
accounts payable arising in connection with the operation of the Stations prior
to the Closing Date.
8.3 Consents to Assignment. At the Closing, Sellers are
delivering to Buyer consents to the assignment by Sellers to Buyer of the Xxxxx
Contract and the Skystar Contract. As of the Closing, no consents have yet been
obtained with respect to the assignment to Buyer of any of the other Contracts,
and Sellers represent that no such consents are required other than for
assignment of the Kings Contract and Stanford Contract. Nonetheless, to the
extent that any such Contract is not capable of being sold, assigned,
transferred, conveyed or delivered without the consent, release or waiver of any
third person (including any Governmental Entity), or if such sale, assignment,
transfer, conveyance or delivery or attempted sale, assignment, transfer,
conveyance or delivery would constitute a breach thereof or a violation of any
law or regulation, this Agreement and any assignment executed pursuant hereto
shall not constitute a sale, assignment, transfer, conveyance or delivery or an
attempted sale, assignment, transfer, conveyance or delivery thereof; rather, in
such cases, this Agreement and any assignment executed pursuant hereto, to the
extent permitted by law, shall constitute an equitable assignment by Sellers to
Buyer of all of Sellers' rights, benefits, title and interest in and to such
Contract, and where necessary or appropriate, Buyer shall be deemed to be
Sellers' agent for the purpose of completing, fulfilling and discharging all of
Sellers' rights and liabilities arising after the Closing Date thereunder.
Sellers shall use their best efforts to provide Buyer with the financial and
business benefits of any such Contract (including, without limitation,
permitting Buyer to enforce any rights of Sellers arising thereunder), and Buyer
shall, to the extent Buyer is provided with the benefits thereof, assume and
perform and in due course pay and discharge all debts, obligations and
liabilities of Sellers thereunder to the extent that Buyer was to assume those
obligations pursuant to the terms hereof. Sellers and Buyer together shall use
their best efforts to obtain any third party consents necessary for the
assignment of any such Contract.
8.4 Transfer Taxes and Similar Charges. All costs of transferring the
Stations Assets in accordance with this Agreement,
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including recordation, transfer and documentary taxes and fees, and any excise,
sales or use taxes, shall be paid by Buyer.
8.5 Governmental Filing or Grant Fees. Any filing or grant fees
imposed by any Governmental Entity the consent of which or the filing with which
is required for the consummation of the transactions contemplated hereby shall
be paid as provided in Section 8.1 of the Stock Agreement.
8.6 Indemnification and Escrow Agreement. Simultaneously with
the execution hereof and at the Closing, Jacor and Noble, among others, are
entering into a certain Indemnification and Escrow Agreement (the
"Indemnification and Escrow Agreement") providing for, among other things, the
terms, conditions and procedures applicable to all claims for indemnity arising
out of any Buyer Escrow Indemnified Claim, Buyer Non-Escrow Indemnified Claim or
Seller Indemnified Claim (each as defined in the Indemnification and Escrow
Agreement); all such claims arising under this Agreement shall be determined
solely pursuant to the provisions of the Indemnification and Escrow Agreement,
and no separate claim or cause of action arising out of any Buyer Escrow
Indemnified Claim, Buyer Non-Escrow Indemnified Claim or Seller Indemnified
Claim may be maintained.
8.7 Survival of Representations, Etc. It is the express
intention and agreement of the parties to this Agreement that: (A) all covenants
and agreements (together, "Agreements") and all representations and warranties
(together, "Warranties") made by Buyer and Sellers in this Agreement shall
survive (regardless of any knowledge, investigation, audit or inspection at any
time made by or on behalf of Buyer or any Seller) as follows:
8.7.1 The Agreements shall survive the Closing without
limitation.
8.7.2 The Warranties shall only survive the Closing for a
period of twelve (12) months from the Closing Date.
8.7.3 The right of any party to recover Damages (as defined in
the Indemnification and Escrow Agreement) as to any specific matter for which
indemnification is sought shall not be affected by the expiration of any
Warranties as set forth herein, provided that a Claim Notice (as defined in the
Indemnification and Escrow Agreement) with respect to such matter has been given
by the indemnified party to the indemnifying party prior to such expiration and
prior to the expiration of the indemnifying parties' obligations under the
Indemnification and Escrow Agreement and subject to the terms of the
Indemnification and Escrow Agreement.
8.7.4 Notwithstanding any provision hereof to the contrary,
there shall be no contractual time limit in which Buyer or Sellers may bring any
action for actual fraud (a "Fraud
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Action"), regardless of whether such actual fraud also included a breach of any
Agreement or Warranty; provided, however, that any Fraud Action must be brought
within the period of the applicable statute of limitations plus any extensions
or waivers granted or imposed with respect thereto.
ARTICLE 9
DOCUMENTS TO BE DELIVERED AT CLOSING
9.1 Sellers Documents. At the Closing, Sellers are delivering or
causing to be delivered to Buyer the following:
9.1.1 Such certificates, bills of sale, general warranty
deeds, assignments, documents of title and other instruments of conveyance,
assignment and transfer (including without limitation any necessary consents
to conveyance, assignment or transfer of the Xxxxx Contract and Skystar
Contract), and lien releases, all in form satisfactory to Buyer and
Buyer's counsel, as shall be effective to vest in Buyer good, marketable and
insurable title in and to the Assets, free, clear and unencumbered.
9.1.2 Originals and all copies of all records required to be
maintained by any Governmental Entity with respect to the Stations and Stations
Assets shall be left at the Stations and thereby delivered to Buyer;
9.1.3 The Time Brokerage Agreement;
9.1.4 A satisfactory legal opinion from Xxxx, Xxxx, Xxxx &
Freidenrich; and
9.1.5 Such additional information, materials, agreement,
documents and instruments as Buyer and its counsel may reasonably request.
9.2 Buyer's Documents. At the Closing, Buyer is delivering or causing
to be delivered to Sellers the following:
9.2.1 The Time Brokerage Agreement;
9.2.2 A satisfactory legal opinion from Xxxxxxx, Head &
Xxxxxxx;
9.2.3 The Purchase Price in accordance with Section 3.1
hereof; and
9.2.4 Such additional information, materials, agreement,
documents and instruments as Sellers and their counsel may reasonably request.
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ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 Certain Interpretive Matters and Definitions. Unless the
context otherwise requires: (a) all references to Sections, Articles, Schedules
or Exhibits are to Sections, Articles, Schedules or Exhibits of or to this
Agreement; (b) each term defined in this Agreement has the meaning assigned to
it; (c) each accounting term not otherwise defined in this Agreement has the
meaning assigned to it in accordance with generally accepted accounting
principles as in effect on the date hereof; (d) "or" is disjunctive but not
necessarily exclusive; (e) words in the singular include the plural and vice
versa; (f) the term "Affiliate" has the meaning given it in Rule 12b-2 of
Regulation 12B under the Securities Exchange Act of 1934, as amended; and (g)
all references to "$" or dollar amounts will be to lawful currency of the United
states of America.
10.2 Further Assurances. If at any time, and from time to time,
after the Closing, any party reasonably determines that any further conveyance,
assignment or other document or any further action is necessary or desirable to
carry out the purposes of and to make effective the transactions contemplated by
this Agreement, the parties agree to execute and deliver all such instruments
and take all such actions as may be reasonably necessary or advisable for such
purpose.
10.3 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 hereto, except for any assignment to an Affiliate of Buyer in
which case Buyer shall remain obligated hereunder as an assignor.
10.4 Amendments. This Agreement may be modified or amended only
by a writing duly executed by Buyer and Sellers, which modification or amendment
shall be binding upon all of the parties hereto.
10.5 Waivers. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a continuing waiver, and no waiver
shall be binding unless executed in writing by the party making the waiver.
10.6 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.
10.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio (but not including
the choice-of-laws rules thereof).
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10.8 Sellers Representative. Each Seller hereby appoints Xxxx
X. Xxxxx as their agent and representative (the "Sellers Representative") for
the purposes of acting for and binding such Seller for all purposes of this
Agreement, including, without limitation: (i) amending, restating,
supplementing, terminating or otherwise modifying this Agreement or any
Ancillary Document or making any waivers on behalf of Sellers pursuant hereto or
thereto; and (ii) settling of any controversies or disagreements between Buyer
and/or Sellers hereunder; and (iii) receiving or giving any notices to or from
Sellers hereunder; and (iv) communicating on behalf of Sellers with the Buyer as
to any matters relating to this Agreement. Buyer shall be entitled to
presumptively rely without further inquiry upon all acts of, and communications
from, Sellers Representative as being the authorized actions and communications
of the Sellers Representative as approved by Sellers.
10.9 Notices. All notices, demands or other communications
which may be or are required to be given by any party to any other party
pursuant to this Agreement, shall be in writing and shall be mailed by certified
mail, return receipt requested, postage prepaid, or transmitted by hand
delivery, national overnight express, telegram or facsimile transmission,
addressed as follows:
10.9.1 If to Buyer:
Jacor Communications, Inc.
1300 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx, Head & Xxxxxxx
0000 Xxxxx Xxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
10.9.2 If to Sellers, Sellers Representative as follows:
Xxxx X. Xxxxx
0000 Xxx Xxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
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with a copy (which shall not constitute notice) to:
Xxxx, Xxxx, Xxxx & Freidenrich
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: J. Xxxxxxx X'Xxxxxx, Esq.
Fax: (000) 000-0000
until such time as either party notifies the other of a change of address. Each
notice or other communication which shall be mailed, delivered or transmitted in
the manner described above shall be deemed sufficiently given and received for
all purposes at such time as it is delivered to the addressee (with the return
receipt, the delivery receipt, or the affidavit of messenger or telefax
transmission log being deemed conclusive evidence of such delivery) or at such
time as delivery is refused by the addressee upon presentation.
10.10 Counterparts. This Agreement may be executed in as many
counterparts as may be required, and each such counterpart hereof shall be
deemed to be an original instrument, but all such counterparts together shall
constitute but a single agreement.
10.11 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.
10.12 Severability. Wherever possible, each provision of this
Agreement will be interpreted so as to be effective and valid under applicable
law, but if any provision of this Agreement is prohibited by or invalid under
such law, such provision will be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
CHESAPEAKE SECURITIES, INC.
By:___________________________
Its:__________________________
NOBLE BROADCASTING OF SAN DIEGO, INC.
By:___________________________
Its:__________________________
SPORTS RADIO, INC.
By:___________________________
Its:__________________________
BROADCAST CENTER, INC.
By:___________________________
Its:__________________________
SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT
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