ASSET PURCHASE AGREEMENT
BY AND BETWEEN
SEACOAST RADIO COMPANY, LLC
AND
CUMULUS BROADCASTING, INC.
AND
CUMULUS LICENSING CORP.
October 9, 1997
TABLE OF CONTENTS
Page
1. Basic Transaction..................................................1
(a) Purchase and Sale of Assets.................................1
(b) Assumption of Liabilities...................................1
(c) Purchase Price..............................................1
(d) The Closing.................................................2
(e) Deliveries at the Closing...................................2
(f) Allocation..................................................2
2. Representations and Warranties of the Seller.......................2
(a) Organization of the Seller..................................3
(b) Authorization of Transaction................................3
(c) Noncontravention............................................3
(d) Title to Acquired Assets....................................3
(e) Financial Statements........................................3
(f) Events Subsequent to .......................................4
(g) Tax Matters.................................................6
(h) Tangible Assets.............................................6
(i) Intellectual Property.......................................6
(j) Contracts...................................................8
(k) Commission Licenses and Compliance with
Commission Requirements....................................9
(l) Insurance...................................................9
(m) Litigation.................................................10
(n) Employees..................................................10
(o) Employee Benefits..........................................11
(q) Brokers' Fees..............................................11
(r) Advertising Contracts......................................11
(s) Disclosure.................................................12
3. Representations and Warranties of the Buyers......................12
(a) Organization of the Buyers.................................12
(b) Authorization of Transaction...............................12
(c) Noncontravention...........................................12
(d) Brokers' Fees..............................................13
4. Pre-Closing Covenants.............................................13
(a) General....................................................13
(b) Assignment Applications....................................13
(c) Employment Offers..........................................13
(d) Notices and Consents.......................................14
-i-
(e) Operation of Business......................................14
(f) Advertising Obligations....................................14
(g) Operating Statements.......................................14
(h) Contracts..................................................14
(i) Operation of Station.......................................14
(j) Credit and Receivables.....................................15
(k) Preservation of Business...................................15
(l) Full Access................................................15
(m) Notice of Developments.....................................15
(n) Exclusivity................................................15
(p) Control of Station.........................................15
(q) Risk of Loss...............................................16
5. Conditions to Obligation to Close.................................16
(a) Conditions to Obligation of the Buyers.....................16
(b) Conditions to Obligation of the Seller.....................18
6. Post-Closing Covenants............................................19
(a) General....................................................19
(b) Litigation Support.........................................19
(c) Adjustments................................................19
(d) Collection of Accounts Receivable..........................19
7. Remedies for Breaches of this Agreement...........................20
(a) Survival...................................................20
(b) Indemnification Provisions for the Benefit of the Buyers...20
(c) Indemnification Provisions for the Benefit of the Seller...21
(d) Specific Performance.......................................21
(e) Liquidated Damages.........................................21
(f) Matters Involving Third Parties............................22
(g) Other Indemnification Provisions...........................22
8. Definitions.......................................................22
9. Termination.......................................................27
(a) Termination of Agreement...................................27
(b) Effect of Termination......................................28
10. Miscellaneous....................................................28
(a) Survival...................................................28
(b) Press Releases and Announcements...........................28
(c) No Third Party Beneficiaries...............................28
(d) Entire Agreement...........................................28
-ii-
(e) Succession and Assignment..................................28
(f) Counterparts...............................................28
(g) Headings...................................................29
(h) Notices....................................................29
(i) Governing Law..............................................29
(j) Amendments and Waivers.....................................30
(k) Severability...............................................30
(l) Expenses...................................................30
(m) Construction...............................................30
(n) Incorporation of Exhibits and Schedules....................30
(o) Submission to Jurisdiction.................................30
-iii-
EXHIBITS
Exhibit A--Form of Xxxxxxx Money Escrow Agreement
Exhibit B--Forms of Assignments
Exhibit C--Form of Assumption
Exhibit D--Form of Postclosing Agreement
Exhibit E--Allocation Schedule
Exhibit F--Form of Opinion of Counsel to the Seller
Exhibit G--Form of Lease Agreement
SCHEDULES
Description of Schedule Section
----------------------- -------
Financial Statements 2(e)
Events Subsequent to January 1, 1997 2(f)
Tangible Assets 2(h)
Intellectual Property 2(i)
Contracts 2(j)
Commission Licenses and Compliance with Commission Requirements 2(k)
Insurance 2(l)
Litigation 2(m)
Employees 2(n)
Employee Benefits 2(o)
Advertising Contracts 2(r)
-iv-
ASSET PURCHASE AGREEMENT
This Agreement ("Agreement") is entered into as of October 9, 1997, by and
between Seacoast Radio Company, LLC, a South Carolina limited liability company
(the "Seller"), Cumulus Broadcasting, Inc., a Nevada corporation (the "Operating
Company"), and Cumulus Licensing Corp., a Nevada corporation (the "Licensing
Company"). The Operating Company and the Licensing Company are collective
referred to herein as the "Buyers." The Buyers and the Seller are collectively
referred to herein as the "Parties." Capitalized terms used in this Agreement
are defined in Section 8 hereof.
This Agreement contemplates a transaction in which the Buyers will
purchase substantially all of the assets (and assume certain of the liabilities)
of the Seller that are used or useful in the operation of radio station WDAI-FM,
licensed to operate in Pawleys Island, South Carolina in return for Cash.
Now, therefore, in consideration of the above premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
1. Basic Transaction.
(a) Purchase and Sale of Assets. On and subject to the terms and
conditions of this Agreement, the Buyers agree to purchase from the Seller, and
the Seller agrees to sell, transfer, convey, and deliver to the Buyers, all of
the Acquired Assets at the Closing for the consideration specified below in this
Section 1.
(b) Assumption of Liabilities. On and subject to the terms and conditions
of this Agreement, the Buyers agree to assume and become responsible for all of
the Assumed Liabilities at the Closing. The Buyers will not assume or have any
responsibility, however, with respect to any other obligation or Liability of
the Seller not included within the definition of Assumed Liabilities.
(c) Purchase Price. The Buyers agree to pay to the Seller Three Million
and no/100 Dollars ($3,000,000.00) (the "Purchase Price") payable as follows:
(i) on the date of this Agreement, the Buyers will deposit with the
Escrow Agent the amount of One Hundred Fifty Thousand and no/100 Dollars
($150,000.00) (the "Xxxxxxx Money Deposit") by delivery of either (A) Cash
payable by wire transfer or delivery of other immediately available funds
or (B) a letter of credit issued by NationsBank of Texas, N.A. naming
Escrow Agent as beneficiary; and
(ii) on the Closing Date, the Buyers shall pay to the Seller the
amount of Two Million Eight Hundred Fifty Thousand and 00/100 Dollars
($2,850,000.00) by delivery of Cash payable by wire transfer or delivery
of other immediately available funds.
The Xxxxxxx Money Deposit referenced in this Section 1(c) shall be placed
in escrow with the Escrow Agent pursuant to an escrow agreement in the form
attached hereto as Exhibit A (the "Xxxxxxx Money Escrow Agreement"), which
requires that such Xxxxxxx Money Deposit shall, if other than pursuant to
Section 1(c)(B), be deposited by the Escrow Agent with a federally insured
financial institution in an interest bearing account. Interest earned on the
Xxxxxxx Money Deposit, if any, shall accrue to the benefit of the Buyers (with
the use of the Buyers' federal tax identification number), and, together with
the principal amount of the Xxxxxxx Money Deposit, shall be payable to the
Seller and credited against the Purchase Price on the Closing Date. If this
Agreement is terminated without Closing of the transaction contemplated herein,
the Xxxxxxx Money and any accrued interest shall be paid to the Buyers or the
Seller as provided in the Xxxxxxx Money Escrow Agreement.
(d) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of the Station in
Pawleys Island, South Carolina, commencing at 9:00 a.m. local time on the date
set by the Buyers not earlier than the fifth business day or later than the
tenth business day after the FCC approval of the Assignment Application becomes
a Final Order, by which date all other conditions to the obligations of the
Parties to consummate the transactions contemplated hereby will have been
satisfied or waived or such other date as the Parties may mutually determine
(the "Closing Date"); provided, however, that the Closing Date shall be no
earlier than January 5, 1998 and no later than two hundred seventy (270) days
from the date of this Agreement.
(e) Deliveries at the Closing. At the Closing, (i) the Seller will deliver
to the Buyers the various certificates, instruments, and documents referred to
in Section 5(a) below; (ii) the Buyers will deliver to the Seller the various
certificates, instruments, and documents referred to in Section 5(b) below;
(iii) the Seller will execute, acknowledge (if appropriate), and deliver to the
Buyers (A) assignments (including Intellectual Property transfer documents) in
the forms attached hereto as Exhibit B and (B) such other instruments of sale,
transfer, conveyance, and assignment as the Parties may determine are
applicable; (iv) the Buyers will execute, acknowledge (if appropriate), and
deliver to the Seller (A) an assumption in the form attached hereto as Exhibit C
and (B) such other instruments of assumption as the Parties may determine are
applicable; and (v) the Buyers will deliver to the Seller the consideration
specified in Section 1(c) above.
(f) Allocation. The Parties agree to allocate the Purchase Price (and all
other capitalizable costs) among the Acquired Assets for all purposes (including
financial accounting and tax purposes) in accordance with an allocation schedule
to be attached hereto as Exhibit E.
2. Representations and Warranties of the Seller. The Seller represents and
warrants to the Buyers that the statements contained in this Section 2 are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section 2),
except as set forth in the lettered and numbered paragraphs contained in the
disclosure schedule
-2-
accompanying this Agreement and initialed by the Parties (the "Disclosure
Schedule") corresponding to the lettered and numbered sections of this Section
2.
(a) Organization of the Seller. The Seller is a limited liability company
duly organized, validly existing, and in good standing under the laws of the
jurisdiction of South Carolina. The Seller does not have any Subsidiaries.
(b) Authorization of Transaction. The Seller has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. Without limiting the
generality of the foregoing, the managers, and members of the Seller have duly
authorized the execution, delivery, and performance of this Agreement by the
Seller. This Agreement constitutes the valid and legally binding obligation of
the Seller, enforceable in accordance with its terms and conditions.
(c) Noncontravention. To the Knowledge of the Seller, neither the
execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby (including the assignments and assumptions
referred to in Section 1 above), will (i) violate any statute, regulation, rule,
judgment, order, decree, stipulation, injunction, charge, or other restriction
of any government, governmental agency, or court to which the Seller is subject
or any provision of the charter or operating agreement of the Seller; or (ii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any contract, lease, sublease, license,
sublicense, franchise, permit, indenture, agreement or mortgage for borrowed
money, instrument of indebtedness, Security Interest, or other arrangement to
which the Seller is a party or by which it is bound or to which any of its
assets is subject (or result in the imposition of any Security Interest upon any
of its assets). Other than with respect to the transfer of the FCC Licenses, the
Seller does not need to give any notice to, make any filing with, or obtain any
Licenses, consent, or approval of any government or governmental agency in order
for the Parties to consummate the transactions contemplated by this Agreement
(including the assignments and assumptions referred to in Section 1 above).
(d) Title to Acquired Assets. Seller has good and marketable title to all
of the Acquired Assets, and will convey the Acquired Assets free and clear of
any Security Interest or restriction on transfer.
(e) Financial Statements. Included in Section 2(e) of the Disclosure
Schedules are the following financial statements (collectively the "Financial
Statements"): (i) unaudited balance sheets and statements of income, changes in
stockholders' equity, and cash flow as of and for the fiscal years ended
December 31, 1993, December 31, 1994, December 31, 1995 and December 31, 1996,
for the Seller; and (ii) unaudited statements of income, as of and for each
month during 1995 and 1996 and the months ended January 31 and February 28,
March 31, April 30, and May 31, 1997 for the Seller (the "Most Recent Financial
Statements"). The Financial Statements have been prepared in accordance with
GAAP applied on a consistent basis throughout the periods covered
-3-
thereby, are correct and complete, and are consistent with the books and records
of the Seller (which books and records are correct and complete). Without
limiting the generality of the foregoing, all material revenues and expenses of
the Seller and the Station (A) are properly reflected in the Financial
Statements, (B) have arisen in the Ordinary Course of Business, (C) are valid
and subject to no counterclaims, and (D) will be or have been collected or paid
at their recorded amounts subject only to the reserve for bad debts set forth on
the face of the Most Recent Financial Statements.
(f) Events Subsequent to January 1, 1997. Since January 1, 1997, except as
set forth in Section 2(f) of the Disclosure Schedules, there has not been any
adverse change in the assets, Liabilities, business, financial condition,
operations, results of operations, or to the Knowledge of the Seller, or future
prospects of the Seller with respect to the operation of the Station. Without
limiting the generality of the foregoing and with respect to the operation of
the Station since that date:
(i) the Seller has not sold, leased, transferred, or assigned any of
its material assets, tangible or intangible, other than for a fair
consideration in the Ordinary Course of Business;
(ii) the Seller has not entered into any contract, lease, sublease,
license, or sublicense (or series of related contracts, leases, subleases,
licenses, and sublicenses) outside the Ordinary Course of Business;
(iii) no party has accelerated, terminated, modified, or cancelled
any contract, lease, sublease, license, or sublicense (or series of
related contracts, leases, subleases, licenses, and sublicenses) involving
more than $5,000 to which the Seller is a party or by which it is bound
other than in the Ordinary Course of Business;
(iv) no Security Interest has been imposed upon any of its assets,
tangible or intangible not disclosed in the Financial Statements or in
writing to the Buyers;
(v) the Seller has not made any capital expenditure (or series of
related capital expenditures) outside the Ordinary Course of Business;
(vi) the Seller has not made any capital investment in, any loan to,
or any acquisition of the securities or assets of any other person (or
series of related capital investments, loans, and acquisitions) outside
the Ordinary Course of Business;
(vii) the Seller has not created, incurred, assumed, or guaranteed
any indebtedness (including capitalized lease obligations) outside the
Ordinary Course of Business;
(viii) the Seller has not delayed or postponed (beyond its normal
practice) the payment of accounts payable and other Liabilities;
-4-
(ix) the Seller has not cancelled, compromised, waived, or released
any right or claim (or series of related rights and claims) outside the
Ordinary Course of Business;
(x) the Seller has not granted any license or sublicense of any
rights under or with respect to any Intellectual Property;
(xi) the Seller has not experienced any damage, destruction, or loss
(whether or not covered by insurance) to its property or any action
adversely affecting the FCC Licenses or the Station;
(xii) the Seller has not made any loan to, or entered into any other
transaction with, any of its directors, officers, and employees outside
the Ordinary Course of Business giving rise to any claim or right on its
part against the person or on the part of the person against it;
(xiii) the Seller has not entered into any employment contract,
consulting contract or severance agreement or collective bargaining
agreement, written or oral, or modified the terms of any existing such
contract or agreement;
(xiv) the Seller has not granted any increase outside the Ordinary
Course of Business in the base compensation of any of its directors,
officers, and employees;
(xv) the Seller has not adopted any (A) bonus, (B) profit-sharing,
(C) incentive compensation, (D) pension, (E) retirement, (F) medical,
hospitalization, life, or other insurance, (G) severance, or (H) other
plan, contract, or commitment for any of its directors, officers, and
employees, or modified or terminated any existing such plan, contract, or
commitment;
(xvi) the Seller has not made any other change in employment terms
for any of its directors, officers, and employees;
(xvii) the Seller has not made or pledged to make any charitable or
other capital contribution outside the Ordinary Course of Business;
(xviii) the Seller has not paid any amount to any third party with
respect to any Liability or obligation (including any costs and expenses
the Seller has incurred or may incur in connection with this Agreement or
any of the transactions contemplated hereby) which would not constitute an
Assumed Liability if in existence as of the Closing;
(xix) there has not been any other occurrence, event, incident,
action, failure to act, or transaction outside the Ordinary Course of
Business involving the Seller;
(xx) the Seller has not altered its credit and collection policies
or its accounting policies;
-5-
(xxi) the Seller has not materially altered the programming, format
or call letters of the Station, or its promotional and marketing
activities;
(xxii) the Seller has not applied to the FCC for any modification of
the FCC Licenses or failed to take any action necessary to preserve the
FCC Licenses and has operated the Station in compliance therewith and with
all FCC rules and regulations;
(xxiii) there has been no adverse change in the market share (to the
Knowledge of the Seller) or Cash flow of the Station; and
(xxiv) the Seller has not committed to any of the foregoing.
(g) Tax Matters. The Seller has filed and will file all Tax Returns that
it was required to file and may be required to file. All such Tax Returns that
were filed were correct and complete in all respects, and all such Tax Returns
that will be filed will be correct and complete in all respects. All Taxes owed
by the Seller (whether or not shown on any Tax Return) have been paid. The
Seller has withheld and paid all Taxes required to have been withheld and paid
in connection with amounts paid or owing to any employee, creditor, independent
contractor, or other third party. The Sellers have not waived any statute of
limitations with respect to Taxes or agreed to any extension of time with
respect to a Tax assessment or deficiency. The Seller is not a party to a
pending Tax audit and is aware of no threatened Tax audit. No claim has ever
been made by an authority in a jurisdiction where the Seller does not file Tax
Returns that it is or may be subject to taxation by that jurisdiction. There are
no Security Interests on any of the assets of the Seller that arose in
connection with any failure (or alleged failure) to pay any Tax.
(h) Tangible Assets. Section 2(h) of the Disclosure Schedule sets forth a
listing of all transmitter and station equipment, vehicles and other tangible
personal property used in conducting the operation and business of the Station.
The Seller owns or leases all tangible assets necessary for the conduct of the
operation and business of the Station as presently conducted and as presently
proposed to be conducted. Each such tangible asset has been maintained in
accordance with normal industry practice, is in good operating condition and
repair (subject to normal wear and tear) and in the opinion of the Seller is
suitable for the purpose for which it is presently used. To the Knowledge of the
Seller, no such tangible asset is in need of replacement.
(i) Intellectual Property. The Seller owns or has the right to use
pursuant to license, sublicense, agreement, or permission the Intellectual
Property identified on Section 2(i) of the Disclosure Schedule. Each item of
Intellectual Property identified in Section 2(i) of the Disclosure Schedule will
be owned or available for use by the Buyers on identical terms and conditions
immediately subsequent to the Closing hereunder. The Seller has taken all
necessary or desirable action to protect each item of Intellectual Property that
it owns or uses.
-6-
(i) To the Knowledge of the Seller, the Seller has not interfered
with, infringed upon, misappropriated, or otherwise come into conflict
with any Intellectual Property rights of third parties, and the Seller has
never received any charge, complaint, claim, or notice alleging any such
interference, infringement, misappropriation, or violation. To the
Knowledge of the Seller, no third party has interfered with, infringed
upon, misappropriated, or otherwise come into conflict with any
Intellectual Property rights of the Seller.
(ii) Section 2(i) of the Disclosure Schedule identifies each patent,
trademark or copyright registration which has been issued to the Seller
with respect to any of its Intellectual Property, identifies each pending
patent, trademark or copyright application for registration which the
Seller has made with respect to any of its Intellectual Property, and
identifies each license, agreement, or other permission which the Seller
has granted to any third party with respect to any of its Intellectual
Property (together with any exceptions). The Seller has delivered to the
Buyers correct and complete copies of all such patents, trademarks or
copyright registrations, applications, licenses, agreements, and
permissions (as amended to date) and has made available to the Buyers
correct and complete copies of all other written documentation evidencing
ownership and prosecution (if applicable) of each such item. With respect
to each item of Intellectual Property identified in Section 2(i) of the
Disclosure Schedule:
(A) the Seller possesses all right, title, and interest in and
to the item;
(B) the item is not subject to any outstanding judgment,
order, decree, stipulation, injunction, or charge;
(C) no charge, complaint, action, suit, proceeding, hearing,
investigation, claim, or demand is pending or, to the Knowledge of
the Seller, is threatened which challenges the legality, validity,
enforceability, use, or ownership of the item; and
(D) the Seller has not ever agreed to indemnify any person or
entity for or against any interference, infringement,
misappropriation, or other conflict with respect to the item.
(iii) Section 2(i) of the Disclosure Schedule also identifies each
item of Intellectual Property that any third party owns and that the
Seller uses pursuant to license, sublicense, agreement, or permission
including, but not limited to the call letters of the Station. The Seller
has supplied the Buyers with correct and complete copies of all such
licenses, sublicenses, agreements, and permissions (as amended to date).
With respect to each such item of used Intellectual Property:
(A) no party to the license, sublicense, agreement, or
permission is in breach or default (or has repudiated any provision
thereof), and no event has occurred which
-7-
with notice or lapse of time would constitute a breach or default or
permit termination, modification, or acceleration thereunder;
(B) with respect to each sublicense, the representations and
warranties set forth in subsection (A) above are true and correct
with respect to the underlying license;
(C) the underlying item of Intellectual Property is not
subject to any outstanding judgment, order, decree, stipulation,
injunction, or charge;
(D) no charge, complaint, action, suit, proceeding, hearing,
investigation, claim, or demand is pending, or, to the Knowledge of
the Seller, is threatened which challenges the legality, validity,
or enforceability of the underlying item of Intellectual Property;
(E) the Seller has not agreed to indemnify any person or
entity for or against any interference, infringement,
misappropriation, or other conflict with respect to the underlying
item of Intellectual Property; and
(F) the Seller has not granted any sublicense or similar right
with respect to the license, sublicense, agreement, or permission.
(j) Contracts. Other than Advertising Contracts, Section 2(j) of the
Disclosure Schedule lists the contracts, agreements, and other written
arrangements to which the Seller is a party and either involving payment in
excess of One Thousand Dollars ($1,000) per year or not entered into in the
Ordinary Course of Business. The Seller has delivered to the Buyers a correct
and complete copy of each written arrangement listed in Section 2(j) of the
Disclosure Schedule (as amended to date). With respect to each written
arrangement so listed to the Knowledge of the Seller:
(i) the written arrangement is legal, valid, binding, enforceable,
and in full force and effect;
(ii) the written arrangement will continue to be legal, valid,
binding, and enforceable and in full force and effect on identical terms
following the Closing;
(iii) no party is in breach or default, and no event has occurred
which with notice or lapse of time would constitute a breach or default or
permit termination, modification, or acceleration, under the written
arrangement; and
(iv) no party has repudiated any provision of the written
arrangement.
The written arrangement listed in Section 2(j) of the Disclosure Schedule are
all of the written arrangements necessary for the conduct of the operation and
business of the Station as presently
-8-
conducted and are included within the definition of Acquired Assets. The Seller
is not a party to any verbal contract, agreement, or other arrangement which, if
reduced to written form, would be required to be listed in Section 2(j) of the
Disclosure Schedule under the terms of this Section 2(j).
(k) Commission Licenses and Compliance with Commission Requirements.
(i) All licenses, permits, authorizations, franchises, certificates
of compliance, and consents of governmental bodies, including, without
limitation, the FCC Licenses, used or useful in the operation of the
Station as they are now being operated (A) are in full force and effect,
(B) are unimpaired by any acts or omissions of the Seller or the Seller's
employees or agents, (C) are free and clear of any restrictions which
might limit the full operation of the Station as it is now operating, and
(D) are detailed in Section 2(k) of the Disclosure Schedules. With respect
to the licenses, permits, authorizations, franchises, certificates of
compliance and consents referenced in the preceding sentence, Section 2(k)
of the Disclosure Schedules also sets forth, without limitation, the date
of the last renewal, the expiration date thereof, and any conditions or
contingencies related thereto. Except as set forth in Section 2(k) of the
Disclosure Schedules, no condition exists or event has occurred that
permits, or after notice or lapse of time, or both, would permit, the
revocation or termination of any such license, permit, consent, franchise,
or authorization (other than pursuant to their express expiration date) or
the imposition of any material restriction or limitation upon the
operation of the Station as now conducted. Except as set forth in Section
2(k) of the Disclosure Schedules, the Seller is not aware of any reason
why the FCC licenses might not be renewed in the ordinary course or
revoked.
(ii) The Station is in compliance with the FCC's policy on exposure
to radio frequency radiation. No renewal of any FCC License would
constitute a major environmental action under the FCC's rules or policies.
Access to the Station's transmission facilities is restricted in
accordance with the policies of the FCC.
(iii) Except as set forth in Section 2(k) of the Disclosure
Schedule, to the Knowledge of the Seller, the Seller is not the subject of
any FCC or other governmental investigation or any notice of violation or
order, or any material complaint, objection, petition to deny, or
opposition issued by or filed with the FCC or any other governmental
authority in connection with the operation of or authorization for the
Station, and there are no proceedings (other than rulemaking proceedings
of general applicability) before the FCC or any other governmental
authority that could adversely affect any of the FCC Licenses or the
authorizations listed in Section 2(k) of the Disclosures Schedule.
(iv) Seller has filed with the FCC and all other governmental
authorities having jurisdiction over the Station all material reports,
applications, documents, instruments, and other information required to be
filed, and will continue to make such filings through the Closing Date.
-9-
(l) Insurance. Section 2(l) of the Disclosure Schedule sets forth the
following information with respect to each insurance policy (including policies
providing property, casualty, liability, and workers' compensation coverage and
bond and surety arrangements) to which the Seller is a party, a named insured,
or otherwise the beneficiary of coverage:
(i) the name, address, and telephone number of the agent;
(ii) the name of the insurer, the name of the policyholder, and the
name of each covered insured;
(iii) the policy number and the period of coverage;
(iv) the scope (including an indication of whether the coverage was
on a claims made, occurrence, or other basis) and amount (including a
description of how deductibles and ceilings are calculated and operate) of
coverage; and
(v) a description of any retroactive premium adjustments or other
loss-sharing arrangements.
With respect to each such insurance policy and to the Knowledge of the Seller:
(A) the policy is legal, valid, binding, and enforceable and in full force and
effect; (B) neither the Seller nor any other party to the policy is in breach or
default (including with respect to the payment of premiums or the giving of
notices), and no event has occurred which, with notice or the lapse of time,
would constitute such a breach or default or permit termination, modification,
or acceleration, under the policy; and (C) no party to the policy has repudiated
any provision thereof. The Seller has been covered during the past three (3)
years by insurance in scope and amount customary and reasonable for the
businesses in which it has engaged during that three-year period. Section 2(l)
of the Disclosure Schedule describes any self-insurance arrangements affecting
the Seller.
(m) Litigation. Section 2(m) of the Disclosure Schedule sets forth each
instance in which the Seller: (i) is subject to any unsatisfied judgement,
order, decree, stipulation, injunction, or charge; or (ii) is a party or, to the
Knowledge of the Seller, is threatened to be made a party to any charge,
complaint, action, suit, proceeding, hearing, or investigation of or in any
court or quasijudicial or administrative agency of any federal, state, local, or
foreign jurisdiction or before any arbitrator. None of the charges, complaints,
actions, suits, proceedings, hearings, and investigations set forth in Section
2(m) of the Disclosure Schedule could result in any adverse change in the
assets, Liabilities, business, financial condition, operations, results of
operations, or future prospects of the Seller or the Station taken as a whole.
The Seller has no reason to believe that any such charge, complaint, action,
suit, proceeding, hearing, or investigation may be brought or threatened against
the Seller.
(n) Employees. Section 2(n) of the Disclosure Schedule sets forth a
listing of the names, positions, job descriptions, salary or wage rates and all
other forms of compensation paid for work
-10-
at the Station of each employee of Seller. The Seller is not a party to or bound
by any collective bargaining agreement, nor has it experienced any strikes,
grievances, claims of unfair labor practices, or other collective bargaining
disputes. The Seller has not committed any unfair labor practice. The Seller has
no Knowledge of any organizational effort presently being made or threatened by
or on behalf of any labor union with respect to employees of the Seller.
(o) Employee Benefits. Section 2(o) of the Disclosure Schedule lists all
Employee Benefit Plans and other executive compensation plans that the Seller
maintains or to which the Seller contributes for the benefit of any current or
former employee of the Seller. Each Employee Benefit Plan (and each related
trust or insurance contract) complies in form and in operation in all respects
with the applicable requirements of ERISA and the Code. The Seller does not
contribute to, ever has contributed to, or ever has been required to contribute
to any Multiemployer Plan. The Seller has not incurred and has no reason to
expect that it will incur any Liability to the PBGC (other than PBGC premium
payments) or otherwise under Title IV of ERISA (including any withdrawal
liability) or under the Code with respect to any Employee Pension Benefit Plan
that the Seller maintains or ever has maintained or to which it contributes,
ever has contributed, or ever has been required to contribute. The Seller does
not maintain and has not maintained, contributed or been required to contribute
to any Employee Welfare Benefit Plan providing health, accident, or life
insurance benefits to former employees, their spouses, or their dependents
(other than in accordance with Code Sec. 4980B).
(p) Legal Compliance.
(i) To the Knowledge of the Seller, the Seller has complied with
all laws (including rules and regulations thereunder) of
federal, state, and local governments (and all agencies
thereof) and no charge, compliant, action suit, proceeding,
hearing, investigation, claim, demand, or notice has been
filed or commenced against the Seller alleging any failure to
comply with any such law or regulation, including those
relating to the employment of labor, employee civil rights,
and equal employment opportunities and relating to antitrust
matters.
(ii) To the Knowledge of the Seller, the Seller has filed in a
timely manner all reports, documents, and other materials it
was required to file (and the information contained therein
was correct and complete in all respects) under all applicable
laws (including rules and regulations thereunder). The Seller
has possession of all records and documents it was required to
retain under all applicable laws (including rules and
regulations thereunder).
(q) Brokers' Fees. Other than the payment of Forty Six Thousand Eight
Hundred Seventy Five and No/100 ($46,875.00) Dollars payable to the Xxxxxxx
Agency at Closing, the Seller has no Liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement.
-11-
(r) Advertising Contracts. Section 2(r) of the Disclosure Schedule lists
those Advertising Contracts and the daily value of such Advertising in Contracts
as of the Closing Date. Other than to employees of the Seller or the Station or
as disclosed in Section 2(r) of the Disclosure Schedule, no commission or other
form of renumeration is paid by the Seller with respect to Advertising Contracts
and any renumeration so listed shall be paid by Seller at or prior to Closing.
Other then in the Ordinary Course of Business, no party to an Advertising
Contract has indicated to the Seller within the past year that it will stop or
decrease the rate of advertising.
(s) Disclosure. The representations and warranties contained in this
Section 2 do not contain any untrue statement of a fact or to the Knowledge of
the Seller, omit to state any fact necessary in order to make the statements and
information contained in this Section 2 not misleading.
3. Representations and Warranties of the Buyers. The Buyers represent and
warrant to the Seller that the statements contained in this Section 3 are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section 3),
except as set forth in the Disclosure Schedule. The Disclosure Schedule will be
arranged in paragraphs corresponding to the lettered and numbered paragraphs
contained in this Section 3.
(a) Organization of the Buyers. The Operating Company is a corporation
duly organized, validly existing, and in good standing under the laws of the
state of Nevada. The Licensing Company is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Nevada.
(b) Authorization of Transaction. The Buyers have full power and authority
to execute and deliver this Agreement and to perform the Buyers' obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of each the Buyers, enforceable in accordance with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to in Section 1 above), will
(i) violate any statute, regulation, rule, judgment, order, decree, stipulation,
injunction, charge, or other restriction of any government, governmental agency,
or court to which either of the Buyers are subject or any provision of either of
the Buyers' articles of organization or (ii) conflict with, result in a breach
of, constitute a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or cancel, or require any
notice under any contract, lease, sublease, license, sublicense, franchise,
permit, indenture, agreement or mortgage for borrowed money, instrument of
indebtedness, Security Interest, or other arrangement to which either of the
Buyers are a party or by which either of the Buyers are bound or to which any of
the Buyers' assets are subject. The Buyers do not need to give any notice to,
make any filing with, or obtain any authorization, consent, or approval of any
government or governmental
-12-
agency in order for the Parties to consummate the transactions contemplated by
this Agreement (including the assignments and assumptions referred to in Section
1 above).
(d) Brokers' Fees. Other than the payment of Forty Six Thousand Eight
Hundred Seventy Five and No/100 ($46,875.00) Dollars payable to the Xxxxxxx
Agency at Closing, the Buyers have no Liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Seller could become liable or
obligated.
4. Pre-Closing Covenants. The Parties agree as follows with respect to the
period between the execution of this Agreement and the Closing.
(a) General. Each of the Parties will use its reasonable best efforts to
take all action and to do all things necessary, proper, or advisable to
consummate and make effective the transactions contemplated by this Agreement
(including satisfying the closing conditions set forth in Section 5 below).
(b) Assignment Applications. Within ten (10) business days after the
execution of this Agreement, the Seller and the Licensing Company shall jointly
file with the FCC an application for assignment of the FCC Licenses, permits and
authorizations pertaining to the Station from the Seller to the Licensing
Company (the "Assignment Application"). The costs of the FCC filing fees in
connection with the Assignment Application shall be paid by Licensing Company.
The Licensing Company shall pay all attorneys' fees relating to the Assignment
Application. The Seller and the Licensing Company shall thereafter prosecute the
Assignment Application with all reasonable diligence and otherwise use the
commercially reasonable efforts to obtain the grant of the Assignment
Application as expeditiously as practicable (but neither the Seller nor the
Licensing Company shall have any obligation to satisfy complainants or the FCC
by taking any steps which would have material adverse effect upon the Station or
upon any Affiliate). If the FCC imposes any condition on either party to the
Assignment Application, such party shall use commercially reasonable efforts to
comply with such condition, provided, that neither party shall be required
hereunder to comply with any condition that would have a material adverse effect
upon the Station or any Affiliate. The Seller and the Licensing Company shall
jointly oppose any requests for reconsideration or judicial review of FCC
approval of the Assignment Application and shall jointly request from the FCC
extension of the effective period of FCC approval of the Assignment Application
if the Closing shall not have occurred prior to the expiration of the original
effective period of the FCC Consent. Nothing in this Section 4(b) shall be
construed to limit either the Seller's or the Buyer's right to terminate this
Agreement pursuant to Section 9 of this Agreement.
(c) Employment Offers. Upon notice to the Seller, and at mutually
agreeable times, the Seller will permit the Buyers to meet with its employees
prior to the Closing Date. The Buyers may, at the Buyers' option and upon the
Buyers' terms and conditions, extend offers of employment to all or any of the
Seller's employees effective on the Closing Date. The Seller will not take any
action
-13-
to preclude or discourage any of the Seller's employees from accepting any offer
of employment extended by the Buyers.
(d) Notices and Consents. The Seller will give any notices to third
parties, and the Seller will use its commercially reasonable efforts to obtain
any third party consents, that the Buyers reasonably may request in connection
with the matters pertaining to the Seller disclosed or required to be disclosed
in the Disclosure Schedule. Each of the Parties will file any notification and
report forms and related material that it may be required to file with the
Federal Trade Commission and the Antitrust Division of the United States
Department of Justice under the Xxxx-Xxxxx-Xxxxxx Act, will use its best efforts
to obtain an early termination of the applicable waiting period, and will make
any further filings pursuant thereto that may be necessary, proper, or
advisable. Each of the Parties will take any additional action that may be
necessary, proper, or advisable in connection with any other notices to, filings
with, and authorizations, consents, and approvals of governments, governmental
agencies, and third parties that it may be required to give, make, or obtain.
(e) Operation of Business. The Seller will not engage in any practice,
take any action, embark on any course of inaction, or enter into any transaction
outside the Ordinary Course of Business. Without limiting the generality of the
foregoing, the Seller will not engage in any practice, take any action, embark
on any course of inaction, or enter into any transaction of the sort described
in Section 2(f) above.
(f) Advertising Obligations. The Seller shall satisfy its air time
obligations for goods or services under its Advertising Contracts in the
Ordinary Course of Business. On the Closing Date, the Seller shall deliver to
the Operating Company a schedule, certified by an officer of the Seller,
reflecting all such Advertising Contracts and the daily value thereof and
outstanding balances thereunder in existence as of the Closing Date.
(g) Operating Statements. The Seller shall deliver to Buyers, for Buyers'
informational purposes only, monthly unaudited statements of operating revenues
and operating expenses of the Station within ten (10) days after each such
statement is prepared by or for the Seller.
(h) Contracts. Seller will not without the prior written consent of the
Operating Company amend, change, or modify any of the contracts listed on
Section 2(j) of the Disclosure Schedule in any material respect. The Seller will
not without prior written consent of the Operating Company enter into any new
contracts respecting the Station or their properties, except (i) contracts for
the sale of time on the Station for cash, goods or services which comply with
the representations and warranties pertaining to such contracts set forth in
Section 2(j) above, and (ii) contracts entered into in the Ordinary Course of
Business.
(i) Operation of Station. The Seller shall operate the Station in
compliance with the FCC Licenses and the rules and regulations of the FCC, and
the FCC Licenses shall at all times remain in full force and effect. The Seller
shall file with the FCC all material reports, applications,
-14-
documents, instruments and other information required to be filed in connection
with the operation of the Station.
(j) Credit and Receivables. The Seller will follow its usual and customary
policies with respect to extending credit for sales of air time and advertising
on the Station and with respect to collecting accounts receivable arising from
such extension of credit.
(k) Preservation of Business. The Seller will keep its business and
properties substantially intact, including its present operations, physical
facilities, working conditions, relationships with lessors, licensers,
advertisers, suppliers, customers, and employees, all of the confidential
information, call letters and trade secrets of the Station, and the FCC
Licenses. The Seller will continue to make expenditures for advertising,
programming, sales, technical and administrative support at a level consistent
with the past practices of the Seller.
(l) Full Access and Consultation. The Seller will permit representatives
of the Buyers to have full access at all reasonable times, and in a manner so as
not to interfere with the normal business operations of the Station, to all
premises, properties, assets, books, records, contracts, Tax records, and
documents of or pertaining to the Acquired Assets or the Seller. The Seller will
consult with the Buyers' management with a view to informing Buyers' management
as to the operations, management and business of the Station.
(m) Notice of Developments. The Seller will give prompt written notice to
the Buyers of any material development affecting the assets, Liabilities,
business, financial condition, operations, results of operations, or future
prospects of the Seller. Each Party will give prompt written notice to the other
of any material development affecting the ability of the Parties to consummate
the transactions contemplated by this Agreement. No disclosure by any party
pursuant to this Section 4(m), however, shall be deemed to amend or supplement
the Disclosure Schedule or to prevent or cure any misrepresentation, breach of
warranty, or breach of covenant.
(n) Exclusivity. The Seller will not (i) solicit, initiate, or encourage
the submission of any proposal or offer from any person relating to any (A)
liquidation, dissolution, or recapitalization, (B) merger or consolidation, (C)
acquisition or purchase of securities or assets, or (D) similar transaction or
business combination involving the Seller or the Station; or (ii) participate in
any discussions or negotiations regarding, furnish any information with respect
to, assist or participate in, or facilitate in any other manner any effort or
attempt by any person to do or seek any of the foregoing.
(o) Environmental Assessments. The Operating Company may, obtain with
respect to each parcel of real estate that the Seller owns a current Phase I
environmental site assessment from an environmental consultant or engineer which
shall not disclose or recommend any action with respect to any condition to be
remediated or investigated or any contamination on the site assessed. The Buyers
shall pay the cost and expense associated with any environmental assessment
initiated pursuant to this Section 4(o).
-15-
(p) Control of Station. The transactions contemplated by this Agreement
shall not be consummated until after the FCC has given its consent and approval
to the Assignment Application. Between the date of this Agreement and the
Closing Date, the Operating Company and its employees or agents shall not
directly or indirectly control, supervise, or direct, or attempt to control,
supervise, or direct, the operation of the Station, and such operation shall be
the sole responsibility of and in the control of the Seller.
(q) Risk of Loss. The risk of loss, damage, or destruction to any of the
Acquired Assets shall remain with the Seller until the Closing. In the event of
any such loss, damage, or destruction the Seller will promptly notify the Buyers
of all particulars thereof, stating the cause thereof (if known) and the extent
to which the cost of restoration, replacement and repair of the Acquired Assets
lost, damaged or destroyed will be reimbursed under any insurance policy with
respect thereto. The Seller will repair or replace such Acquired Assets as soon
as possible after loss, damage or destruction thereof and shall use its best
efforts to restore as promptly as possible transmissions as authorized in the
FCC Licenses. The Closing Date shall be extended (with FCC consent, if
necessary) for up to sixty (60) days to permit such repair or replacement. If
repair or replacement cannot be accomplished within sixty (60) days of the date
of the Seller's notice to the Buyers, and the Buyers determine that the Seller's
failure to repair or replace, alone or in the aggregate, would have a material
adverse effect on the operation of the Station:
(i) The Buyers may elect to terminate this Agreement; or
(ii) The Buyers may postpone the Closing Date until such time
as the property has been repaired, replaced or restored in a manner and to an
extent reasonably satisfactory to the Buyers, unless the same cannot be
reasonably effected within ninety (90) days of the date of the Seller's notice
to Buyers, in which case either party may terminate this Agreement; or
(iii) The Buyers may choose to accept the Acquired Asset in
their "then" condition, together with the Seller's assignment to Buyers all
rights under any insurance claims covering the loss, damage or destruction and
payment over to Buyers any proceeds under any such insurance policies,
previously received by the Seller with respect thereto.
In the event the Closing Date is postponed pursuant to this Section 4(p),
the Parties hereto will cooperate to extend the time during which this Agreement
must be closed as specified in the consent of the FCC.
5. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyers. The obligation of the Buyers
to consummate the transactions to be performed by the Buyers in connection with
the Closing is subject to satisfaction of the following conditions:
-16-
(i) the representations and warranties set forth in Section 2 above
shall be true and correct in all material respects at and as of the
Closing Date;
(ii) the Seller shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) the Seller shall have procured all of the third party consents
specified in Section 4(d) above, including but not limited to those
relating to transmitter and studio leases;
(iv) no action, suit, or proceeding shall be pending or threatened
before any court or quasijudicial or administrative agency of any federal,
state, local, or foreign jurisdiction wherein an unfavorable judgment,
order, decree, stipulation, injunction, or charge would (A) prevent
consummation of any of the transactions contemplated by this Agreement,
(B) cause any of the transactions contemplated by this Agreement to be
rescinded following consummation, or (C) affect adversely the right of the
Buyers to own, operate, or control the Acquired Assets (and no such
judgment, order, decree, stipulation, injunction, or charge shall be in
effect);
(v) the Seller shall have delivered to the Buyers a certificate to
the effect that each of the conditions specified above in Section
5(a)(i)-(iv) is satisfied in all respects;
(vi) the Assignment Application shall have been approved by a Final
Order of the FCC, all applicable waiting periods (and any extensions
thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise
been terminated and the Seller and the Buyers shall have received all
governmental approvals required to transfer all other authorizations,
consents, and approvals of governments and governmental agencies set forth
in the Disclosure Schedule;
(vii) the Buyers shall have completed the Buyers' review and
verification of the Seller's Financial Statements, the Buyers' review of
the FCC Licenses and the Station, the Buyers' engineering audit of the
Seller's studio and transmitter facilities and equipment, all with results
satisfactory to the Buyers in the Buyers' sole judgment;
(viii) the relevant parties shall have entered into the Post Closing
Agreement;
(ix) the relevant parties shall have entered into the Lease
Agreement;
(x) the Buyers shall have received from counsel to the Seller an
opinion with respect to the matters set forth in Exhibit F attached
hereto, addressed to the Buyers and dated as of the Closing Date; and
-17-
(xi) all actions consummation of the transactions contemplated
hereby and all certificates, opinions, instruments, and other documents
required to effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to the Buyers.
The Buyers may waive any condition specified in this Section 5(a) if the Buyers
execute a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of the Seller. The obligation of the Seller
to consummate the transactions to be performed by it in connection with the
Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3 above
shall be true and correct in all material respects at and as of the
Closing Date;
(ii) the Buyers shall have performed and complied with all of the
Buyers' covenants hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending or threatened
before any court or quasijudicial or administrative agency of any federal,
state, local, or foreign jurisdiction wherein an unfavorable judgment,
order, decree, stipulation, injunction, or charge would (A) prevent
consummation of any of the transactions contemplated by this Agreement or
(B) cause any of the transactions contemplated by this Agreement to be
rescinded following consummation (and no such judgment, order, decree,
stipulation, injunction, or charge shall be in effect);
(iv) the Buyers shall have delivered to the Seller a certificate to
the effect that each of the conditions specified above in Section
5(b)(i)-(iii) is satisfied in all respects;
(v) each of the Assignment Applications shall have been approved by
a Final Order of the FCC, all applicable waiting periods (and any
extension thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or
otherwise been terminated and the Seller and the Buyers shall have
received all governmental approvals required to transfer all other
authorizations, consents, and approvals of governments and governmental
agencies set forth in the Disclosure Schedule;
(vi) the relevant parties shall have entered into the Lease
Agreement;
(vii) the relevant parties shall have entered into the Post Closing
Agreement; and
(viii) all actions to be taken by the Buyers in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in form
and substance to the Seller.
-18-
The Seller may waive any condition specified in this Section 5(b) if it executes
a writing so stating at or prior to the Closing.
6. Post-Closing Covenants. The Parties agree as follows with respect to
the period following the Closing.
(a) General. In case at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this Agreement, each of the
Parties will take such further action (including the execution and delivery of
such further instruments and documents) as any other Party reasonably may
request, all the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under Section 7 below).
(b) Litigation Support. In the event and for so long as any Party actively
is contesting or defending against any charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand in connection with (i) any
transaction contemplated under this Agreement or (ii) any fact, situation,
circumstance, status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction on or prior to the Closing Date
involving the Seller, the other Party will cooperate with the contesting or
defending Party and its counsel in the contest or defense, make available his or
its personnel, and provide such testimony and access to its books and records as
shall be necessary in connection with the contest or defense, all at the sole
cost and expense of the contesting or defending Party (unless the contesting or
defending Party is entitled to indemnification therefor under Section 7 below).
(c) Adjustments. Operation of the Station and the income and expenses
attributable thereto up through the close of business on the day before the
Closing Date shall be for the account of the Seller and thereafter for the
account of the Operating Company. Such items as employee salaries, vacation,
sick day and personal time accruals, and fringe benefits, power and utilities
charges, insurance, real and personal property taxes, prepared expenses,
deposits, music license fees, and rents and payments pertaining to the leases
and contracts being assigned hereunder (inducing any contracts for the sale of
time for cash, trade or barter so assigned) shall be prorated between the Seller
and the Operating Company as of the Closing Date in accordance with the
foregoing principle. The prorations and adjustments hereunder shall be made and
paid insofar as feasible on the Closing Date, with a final settlement sixty (60)
days after 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 determined by the accounting firm of Price
Waterhouse, LLP and the fees and expenses of such accounting firm shall be paid
one-half (1/2) by the Seller and one-half (1/2) by the Operating Company.
(d) Collection of Accounts Receivable. At the Closing, the Seller will
turn over to the Operating Company, for collection only, the accounts receivable
of the Station owing to the Seller as of the close of business on the Closing
Date. A schedule of such accounts receivable will be delivered by the Seller to
the Operating Company on the Closing Date or as soon thereafter as
-19-
possible. The Operating Company agrees to use commercially reasonable efforts in
the ordinary course of business (but without responsibility to institute legal
or collection proceedings) to collect such accounts receivable during the
120-day period following the Closing Date, and will remit all payments received
on such accounts to Seller at the end of each month during such 120-day period.
In the event the Operating Company receives moneys during the 120-day period
following the Closing Date from an advertiser who, after the Closing Date, is
advertising over any of the Station, and that advertiser was included among the
accounts receivable as of the Closing Date, the Operating Company shall apply
said moneys to the oldest outstanding balance due on the particular account,
except in the case of a "disputed" account receivable. For purposes of this
Section 6(d), a "disputed" account receivable means one which the account debtor
refuses to pay because he asserts that the money is not owed or the amount is
incorrect. In the case of such a disputed account, the Operating Company shall
immediately return the account to the Seller prior to expiration of the 120-day
period following the Closing Date. If the Operating Company returns a disputed
account to the Seller, the Operating Company shall have no further
responsibility for its collection and may accept payment from the account debtor
for advertising carried on any of the Station after the Closing Date. At the end
of the 120-day period following the Closing Date, the Operating Company will
turn back to the Seller all of the accounts receivable of the Station as of the
Closing Date owing to the Seller which have not yet been collected, and the
Operating Company will thereafter have no further responsibility with respect to
the collection of such receivables. During the 120-day period following the
Closing Date, the Operating Company shall afford the Seller reasonable access to
the accounts receivable "aging list."
7. Remedies for Breaches of this Agreement.
(a) Survival. All of the representations and warranties of the Seller
contained in Section 2 of this Agreement (other than the representations and
warranties of the Seller contained in Sections 2(a), 2(b) and 2(c) hereof or
relating to the Seller's title to the Acquired Assets) shall survive the Closing
and continue in full force and effect for a period of eighteen (18) months
thereafter, except that any representation or warranty relating to the Buyers'
freedom from liability to pay a Liability of the Seller shall continue in full
force and effect for the period of the applicable statute of limitations plus
ninety (90) days. All of the other representations, warranties, and covenants of
the Buyers and the Seller contained in this Agreement (including the
representations and warranties of the Seller contained in Sections 2(a), 2(b)
and 2(c) hereof or relating to the Seller's title to the Acquired Assets) and in
this Agreement shall survive the Closing (even if the damaged party knew or had
reason to know of any misrepresentation or breach of warranty or covenant at the
time of Closing) and continue in full force and effect forever thereafter.
(b) Indemnification Provisions for the Benefit of the Buyers.
Except as described below in Section 7(e) with respect to a breach
of a covenant prior to the Closing Date, the Seller agrees to indemnify the
Buyers from and against the entirety of any Adverse Consequences the Buyers may
suffer resulting from, arising out of, relating to, in the nature of, or caused
by:
-20-
(i) any breach of the Seller's representations, warranties, and
covenants contained in this Agreement (so long as the particular
representation, warranty, or covenant survives the Closing and the Buyers
make a written claim for indemnification within the applicable survival
period);
(ii) any Liability of the Seller which is not an Assumed Liability;
or
(iii) the operation of the Station by the Seller prior to the
Closing Date.
(c) Indemnification Provisions for the Benefit of the Seller. Except as
described below in Section 7(e) with respect to a breach of a covenant prior to
the Closing Date, the Buyers agree to indemnify the Seller from and against the
entirety of any Adverse Consequences the Seller may suffer resulting from,
arising out of, relating to, in the nature of, or caused by:
(i) the breach of any of the Buyers' representations, warranties,
and covenants contained in this Agreement (so long as the particular
representation, warranty, or covenant survives the Closing and the Seller makes
a written claim for indemnification within the applicable survival period);
(ii) any Assumed Liability; or
(iii) the operation of the Station by the Buyers after the Closing
Date.
(d) Specific Performance. Each of the Parties acknowledges and agrees that
the Stations to be acquired pursuant to this Agreement are unique and that the
Buyers would be damaged irreparably in the event any of the provisions of this
Agreement are not performed in accordance with their specific terms or otherwise
are breached. Accordingly, each of the Parties agrees that the Buyers shall be
entitled to an injunction or injunctions to prevent such breaches and to enforce
specifically this Agreement and the terms and provisions hereof in any action
instituted in any court of the United States or any state thereof having
jurisdiction over the Parties and the matter (subject to the provisions set
forth in Section 10(o) below), in addition to any other remedy to which it may
be entitled, at law or in equity. Each of the Parties acknowledges and agrees
that not withstanding the provision in Section 7(e) with respect to the remedy
of liquidated damages upon a breach of a covenant of this Agreement prior to the
Closing, money damages would not be an adequate remedy for a breach of any
provision of this Agreement.
(e) Liquidated Damages. The Buyers and the Seller acknowledge that in the
event that the transactions contemplated by this Agreement are not closed
because of a default by either Party, the Adverse Consequences as a result of
such default may be difficult, if not impossible, to ascertain. Accordingly, in
the event the transactions contemplated by this Agreement are not consummated
due to a default of this Agreement by either Party, then the non-defaulting
Party shall be entitled to receive from the defaulting Party for such default,
in lieu of indemnification pursuant to Sections 7(b) or 7(c), the sum of One
Hundred Fifty Thousand and no/100 Dollars ($150,000.00) as liquidated
-21-
damages without the need for proof of damages; provided, however, that the
Buyers retain the option to seek, pursuant to Section 7(d), and recover in lieu
of the remedy of liquidated damages pursuant to this Section 7(e), the remedy of
specific performance. The defaulting Party agrees to pay said sum of liquidated
damages within ten (10) days of the date that the non-defaulting Party obtains
such a judgment.
(f) Matters Involving Third Parties. If any third party shall notify any
Party (the "Indemnified Party") with respect to any matter which may give rise
to a claim for indemnification against any other Party (the "Indemnifying
Party") under this Section 7, then the Indemnified Party shall notify the
Indemnifying Party thereof promptly; provided, however, that no delay on the
part of the Indemnified Party in notifying the Indemnifying Party shall relieve
the Indemnifying Party from any liability or obligation hereunder unless (and
then solely to the extent) the Indemnifying Party thereby is damaged. In the
event any Indemnifying Party notifies the Indemnified Party within fifteen (15)
days after the Indemnified Party has given notice of the matter that the
Indemnifying Party is assuming the defense thereof, (i) the Indemnifying Party
will defend the Indemnified Party against the matter with counsel of its choice
reasonably satisfactory to the Indemnified Party, (ii) the Indemnified Party may
retain separate co-counsel at its sole cost and expense (except that the
Indemnifying Party will be responsible for the fees and expenses of the separate
co-counsel to the extent the Indemnified Party concludes reasonably that the
counsel the Indemnifying Party has selected has a conflict of interest), (iii)
the Indemnified Party will not consent to the entry of any judgment or enter
into any settlement with respect to the matter without the written consent of
the Indemnifying Party (not to be withheld unreasonably), and (iv) the
Indemnifying Party will not consent to the entry of any judgment with respect to
the matter, or enter into any settlement which does not include a provision
whereby the plaintiff or claimant in the matter releases the Indemnified Party
from all Liability with respect thereto, without the written consent of the
Indemnified Party (not to be withheld unreasonably). In the event the
Indemnifying Party does not notify the Indemnified Party within fifteen (15)
days after the Indemnified Party has given notice of the matter that the
Indemnifying Party is assuming the defense thereof, however, the Indemnified
Party may defend against, or enter into any settlement with respect to, the
matter in any manner it reasonably may deem appropriate.
(g) Other Indemnification Provisions. The foregoing indemnification
provisions are in addition to, and not in derogation of, any statutory or common
law remedy any party may have for breach of representation, warranty, or
covenant.
8. Definitions.
"Acquired Assets" means all right, title, and interest in and to all of
the assets of the Seller, (other than Retained Assets) that are used or useful
in the operation of the Station, including but not limited to all of its (a)
tangible personal property (such as computers, electrical devices, monitoring
equipment, test equipment, switching, terminal and studio equipment,
transmitters, transformers, receivers, broadcast facilities, inventories of
compact disks, records, tapes and other supplies), vehicles, and all assignable
warranties with respect thereto; (b) Intellectual Property, goodwill
-22-
associated therewith, licenses and sublicenses granted and obtained with respect
thereto, and rights thereunder, remedies against infringements thereof, and
rights to protection of interests therein under the laws of all jurisdictions;
(c) rights under orders and agreements (including those barter agreements
identified on the Disclosure Schedules) now existing or entered into in the
Ordinary Course of Business for the sale of advertising time on the Station; (d)
contracts, indentures, Security Interests, guaranties, other similar
arrangements, and rights thereunder; (e) call letters of the Station, jingles,
logos, slogans, and business goodwill of the Station; (f) Licenses and similar
rights obtained from governments and governmental agencies; and (g) FCC logs and
records and all other books, records, ledgers, logs, files, documents,
correspondence, lists, plats, architectural plans, drawings, and specifications,
creative materials, advertising and promotional materials, studies, reports, and
other printed or written materials.
"Adverse Consequences" means all charges, complaints, actions, suits,
proceedings, hearings, investigations, claims, demands, judgments, orders,
decrees, stipulations, injunctions, damages, dues, penalties, fines, costs,
amounts paid in settlement, Liabilities, obligations, Taxes, liens, losses,
expenses, and fees, including all attorneys' fees and court costs.
"Advertising Contracts" means any arrangement with any third party under
which the Seller has created, incurred, assumed or guaranteed an obligation to
provide advertising or air time on the Station.
"Affiliate" means with reference to any person or entity, another person
or entity controlled by, under the control of or under common control with that
person or entity.
"Assignment Application" has the meaning set forth in Section 4(b) above.
"Assumed Liabilities" means obligations of the Seller under the licenses,
sublicenses, leases, subleases, contracts, and other arrangements referred to in
the definition of Acquired Assets either: (a) to furnish services, and other
non-Cash benefits to another party after the Closing; or (b) to pay for goods,
services, and other non-Cash benefits that another party will furnish to it
after the Closing. The Assumed Liabilities shall not include any Retained
Liability.
"Basis" means any past or present fact, situation, circumstance, status,
condition, activity, practice, plan, occurrence, event, incident, action,
failure to act, or transaction that forms or could form the basis for any
specified consequence.
"Buyers" has the meaning set forth in the preface above.
"Cash" means cash and cash equivalents determined in accordance with GAAP
applied on a basis consistent with the preparation of the Financial Statements.
"Closing" has the meaning set forth in Section 1(d) above.
-23-
"Closing Date" has the meaning set forth in Section 1(d) above.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential Information" means any information concerning the businesses
and affairs of the Seller.
"Disclosure Schedule" has the meaning set forth in Section 2 and Section 3
above.
"Xxxxxxx Money Deposit" has the meaning set forth in Section 1(c) above.
"Xxxxxxx Money Escrow Agreement" has the meaning set forth in Section 1(c)
above.
"Employee Benefit Plan" means any (a) nonqualified deferred compensation
or retirement plan or arrangement which is an Employee Pension Benefit Plan, (b)
qualified defined contribution retirement plan or arrangement which is an
Employee Pension Benefit Plan, (c) qualified defined benefit retirement plan or
arrangement which is an Employee Pension Benefit Plan (including any
Multiemployer Plan), or (d) Employee Welfare Benefit Plan or material fringe
benefit plan or program.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA Sec.
3(2).
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA Sec.
3(1).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Agent" means The Xxxxxxx Agency, Inc.
"FCC" means the Federal Communications Commission of the United States.
"Final Order" means an action by the FCC as to which: (a) no request for
stay by the FCC is pending, no such stay is in effect, and any deadline for
filing a request for any such stay has passed; (b) no appeal, petition for
rehearing or reconsideration, or application for review is pending before the
FCC and the deadline for filing any such appeal, petition or application has
passed; (c) the FCC has not initiated reconsideration or review on its own
motion and the time in which such reconsideration or review is permitted has
passed; and (d) no appeal to a court, or request for stay by a court, of the
FCC's action is pending or in effect, and the deadline for filing any such
appeal or request has passed.
"Financial Statements" has the meaning set forth in Section 2(e) above.
"Xxxx-Xxxxx-Xxxxxx Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
-00-
"XXXX" xxxxx Xxxxxx Xxxxxx generally accepted accounting principles as in
effect from time to time.
"Indemnified Party" has the meaning set forth in Section 7(f) above.
"Indemnifying Party" has the meaning set forth in Section 7(f) above.
"Intellectual Property" means all (a) patents, patent applications, patent
disclosures, and improvements thereto, (b) trademarks, service marks, trade
dress, call letters, logos, trade names, and corporate names and registrations
and applications for registration thereof, (c) all programs, programming
materials, copyrights and registrations and applications for registration
thereof, (d) mask works and registrations and applications for registration
thereof, (e) computer software, data, and documentation, (f) trade secrets and
confidential business information (including ideas, formulas, compositions,
inventions (whether patentable or unpatentable and whether or not reduced to
practice), know-how, market and other research information, drawings,
specifications, designs, plans, proposals, technical data, copyrightable works,
financial, marketing, and business data, pricing and cost information, business
and marketing plans, and customer and supplier lists and information), (g) other
proprietary rights, and (h) copies and tangible embodiments thereof (in whatever
form or medium).
"Knowledge" means actual knowledge after reasonable investigation.
"Lease Agreement" means the lease agreement by and between Sunny
Broadcasters, Inc. and the Operating Company the form of which is attached
hereto at Exhibit G.
"Liability" means any liability (whether known or unknown, whether
absolute or contingent, whether liquidated or unliquidated, and whether due or
to become due), including any liability for Taxes.
"Licenses" means all FCC and other governmental licenses, franchises,
approvals, certificates, authorizations and rights of the Seller with respect to
the operations of the Station and all applications therefor, together with any
renewals, extension or modifications thereof and additions thereto.
"Licensing Company" has the meaning set forth in the preface above.
"Most Recent Financial Statements" has the meaning set forth in Section
2(e) above.
"Multiemployer Plan" has the meaning set forth in ERISA Sec. 3(37)
"Operating Company" has the meaning set forth in the preface above.
-25-
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Party" has the meaning set forth in the preface above.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Post Closing Agreement" means the Post Closing Agreement with "Seller
Members" (as defined in the Post Closing Agreement) the form of which is
attached hereto as Exhibit D and pursuant to which the "Seller Members" (as
defined in the Post Closing Agreement) jointly and severally agree to (a) cause
the Seller to retain fee ownership of and unencumbered certain real property
that is subject of the Lease Agreement and (b) guarantee up to Five Hundred
Thousand Dollars ($500,000.00) in the aggregate the indemnity obligations of the
Seller.
"Process Agent" has the meaning set forth in Section 10(o) below.
"Prohibited Transaction" has the meaning set forth in ERISA Sec. 406 and
Code Sec. 4975.
"Purchase Price" has the meaning set forth in Section 1(c) above.
"Retained Assets" means (a) the limited liability company charter,
qualifications to conduct business as a foreign entity, arrangements with
registered agents relating to foreign qualifications, taxpayer and other
identification numbers, seals, minute books, membership transfer books, blank
membership certificates, and other documents relating to the organization,
maintenance, and existence of the Seller as a limited liability company; (b) any
of the rights of the Seller under this Agreement (or under any side agreement
between the Seller and the Buyers entered into on or after the date of this
Agreement); (c) accounts, notes and other receivables; (d) the Seller's Cash;
and (e) all of the Seller's right, title and interest in and to its real
property, and all improvements, fixtures, and fittings thereon (such as towers
and antennae), and easements, rights-of-way and other appurtenants thereto.
"Retained Liabilities" means any other obligations or liabilities of
Seller, including but not limited to: (a) any Liability relating to the
ownership or operation of the Station prior to the Closing; (b) any Liability of
the Seller for income, transfer, sales, use, and other Taxes arising in
connection with the consummation contemplated hereby; (c) any Liability of the
Seller for costs and expenses incurred in connection with this Agreement or the
consummation of the transactions contemplated hereby; or (d) any Liability or
obligation of the Seller under this Agreement (or under any side agreement
between the Seller on the one hand and the Buyers on the other hand entered into
on or after the date of this Agreement).
"Securities Act" means the Securities Act of 1933, as amended.
-26-
"Security Interest" means any mortgage, pledge, security interest,
encumbrance, charge, or other lien, other than (a) liens for Taxes not yet due
and payable; (b) liens arising under worker's compensation, unemployment
insurance, social security, retirement, and similar legislation; and (c) other
liens arising in the Ordinary Course of Business and not incurred in connection
with the borrowing of money.
"Seller" has the meaning set forth in the preface above.
"Station" means the radio broadcast station having the call letters
WDAI-FM licensed by the FCC to operate in Pawleys, South Carolina.
"Subsidiary" means any corporation with respect to which another specified
corporation has the power to vote or direct the voting of sufficient securities
to elect a majority of the directors.
"Tax" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Code Sec. 59A), customs
duties, capital stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
9. Termination.
(a) Termination of Agreement. Certain of the Parties may terminate this
Agreement as provided below:
(i) the Buyers and the Seller may terminate this Agreement by mutual
written consent at any time prior to the Closing;
(ii) the Buyers may terminate this Agreement by giving written
notice to the Seller at any time prior to the Closing in the event the
Seller is in breach, and the Seller may terminate this Agreement by giving
written notice to the Buyers at any time prior to the Closing in the event
the Buyers are in breach, of any material representation, warranty, or
covenant contained in this Agreement in any material respect in each case
if such breach remains uncured for ten (10) days after notice of breach is
received from the other party;
(iii) the Buyers may terminate this Agreement by giving written
notice to the Seller at any time prior to the Closing if the Closing shall
not have occurred on or before the 270th day following the date of this
Agreement by reason of the failure of any condition precedent
-27-
under Section 5(a) hereof (unless the failure results primarily from the
Buyers breaching any representation, warranty, or covenant contained in
this Agreement);
(iv) the Seller may terminate this Agreement by giving written
notice to the Buyers at any time prior to the Closing if the Closing shall
not have occurred on or before the 270th day following the date of this
Agreement by reason of the failure of any condition precedent under
Section 5(b) hereof (unless the failure results primarily from the Seller
itself breaching any representation, warranty, or covenant contained in
this Agreement);or
(v) the Buyers or the Seller may terminate this Agreement if any
Assignment Application is denied by Final Order.
(b) Effect of Termination. If this Agreement is terminated pursuant to
Section 9(a)(i) above, all obligations of the Parties hereunder shall terminate
without any Liability of any Party to any other Party. If this Agreement is not
consummated by the Closing Date or terminates as a result of a breach or default
of a Party, then the non-defaulting Party shall be entitled to liquidated
damages as set forth in Section 7(e) above.
10. Miscellaneous.
(a) Survival. All of the representations, warranties, and covenants of the
Parties contained in this Agreement shall survive the Closing to the extent set
forth in Section 7(a) of this Agreement.
(b) Press Releases and Announcements. No Party shall issue any press
release or announcement relating to the subject matter of this Agreement prior
to the Closing without the prior written approval of the other Party; provided,
however, that any Party may make any public disclosure it believes in good faith
is required by law or regulation (in which case the disclosing Party will advise
the other Party prior to making the disclosure).
(c) No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the Parties and their respective
successors and permitted assigns.
(d) Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement between the Parties and supersedes any
prior understandings, agreements, or representations by or between the Parties,
written or oral, that may have related in any way to the subject matter hereof.
(e) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein. No Party may assign either
this Agreement or any of its rights, interests, or obligations hereunder without
the prior written approval of the other Party.
-28-
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Seller: Seacoast Radio Company, LLC
Attn: Xxxxxxx X. Xxxxxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Copy to: Xxxx X. Xxxxx
Xxxxxx Xxxxxxx Xxxxx & Scarborough, L.L.P.
0000 Xxxx Xxxxxx
X.X. Xxx 00000-00000
Xxxxxxxx, XX 00000
If to the Buyers: Cumulus Broadcasting, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Copy to: Cumulus Licensing Corp.
c/o Quaestus Management Corporation
000 X. Xxxxxxxx Xxx., Xxx. 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
Xxxxx & Xxxxxxx
000 X. Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Any Party may give any notice, request, demand, claim, or other communication
hereunder using any other means (including personal delivery, expedited courier,
messenger service, telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other
-29-
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Any Party may
change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Party notice in
the manner herein set forth.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
South Carolina.
(j) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Buyers and the Seller. No waiver by any Party of any default, misrepresentation,
or breach of warranty or covenant hereunder, whether intentional or not, shall
be deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
(k) Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the Parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
(l) Expenses. The Buyers and the Seller, will each bear their own costs
and expenses (including legal fees and expenses) incurred in connection with
this Agreement and the transactions contemplated hereby, other than as set forth
in Section 4(b) with regard to the Assignment Applications. The Seller will pay
all income taxes, transfer or sales taxes and other recording or similar fees
necessary to vest title to each of the Acquired Assets in the Buyers.
(m) Construction. The language used in this Agreement will be deemed to be
the language chosen by the Parties to express their mutual intent, and no rule
of strict construction shall be applied against any Party. Any reference to any
federal, state, local, or foreign statute or law shall be deemed also to refer
to all rules and regulations promulgated thereunder, unless the context requires
otherwise. Nothing in the Disclosure Schedule shall be deemed adequate to
disclose an exception to a representation or warranty made herein unless the
Disclosure Schedule identifies the exception with reasonable particularity and
describes the relevant facts in reasonable detail. The Parties intend that each
representation, warranty, and covenant contained herein shall have independent
significance. If any Party has breached any representation, warranty, or
covenant contained herein in any respect, the fact that there exists another
representation, warranty, or covenant relating to the
-30-
same subject matter (regardless of the relative levels of specificity) which the
Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty, or covenant.
(n) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
(o) Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state or federal court sitting in South Carolina, in any
action or proceeding arising out of or relating to this Agreement, agrees that
all claims in respect of the action or proceeding may be heard and determined in
any such court, and agrees not to bring any action or proceeding arising out of
or relating to this Agreement in any other court. Each of the Parties waives any
defense of inconvenient forum to the maintenance of any action or proceeding so
brought and waives any bond, surety, or other security that might be required of
any other Party with respect thereto. Each Party agrees that a final judgment in
any action or proceeding so brought shall be conclusive and may be enforced by
suit on the judgment or in any other manner provided by law.
* * * * *
-31-
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on as
of the date first above written.
CUMULUS BROADCASTING, INC.
By:
------------------------------
Title:
---------------------------
"Operating Company"
CUMULUS LICENSING CORP.
By:
------------------------------
Title:
---------------------------
"Licensing Company"
SEACOAST RADIO COMPANY, LLC
By:
------------------------------
Title:
---------------------------
"Seller"
-32-
