Exhibit 10.07
Asset Purchase Agreement
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), is made this _______ day
of December, 1999 by and between NextMedia Group, LLC, a Delaware limited
liability company ("Buyer"), Salt Broadcasting LLC, a Nevada limited liability
company ("Seller"), and, for purposes of Sections 1.1.11, 1.1.12, 3.1, 3.2,
11.7, 14.2, 14.3 and 15.2 only hereof, Americom Las Vegas Limited Partnership, a
Nevada Limited Partnership ("ALVLP"), and Century Media Partners, a California
General Partnership ("Century"), (Buyer, Seller, ALVLP and Century collectively
referred to herein as the "Parties").
W I T N E S S E T H :
WHEREAS, Seller owns certain assets used in connection with the operation
of Radio Stations KTHX-FM, 100.1 MHz, Incline Village and KRZQ-FM, 100.9 MHz,
Sparks, Nevada (the "Stations"); and
WHEREAS, Buyer desires to acquire from Seller and Seller desires to sell to
Buyer substantially all of the assets owned by Seller, used in or useful to the
operation of the Stations;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE 1
PURCHASE OF ASSETS
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1.1. Transfer of Assets. On the terms and subject to the conditions hereof
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and subject to Section 1.2, on the Closing Date (as hereinafter defined), Seller
shall assign, transfer, convey and deliver to Buyer and Buyer shall acquire and
assume from Seller, all of the right, title and interest
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of Seller in and to all of the following assets, properties, interests and
rights of Seller (collectively the "Station Assets") free and clear of all
liens, claims, or encumbrances other than (i) Liens for taxes, assessments or
other governmental charges or levies not yet due; (ii) statutory Liens of
landlords or Liens of carriers, warehousemen, mechanics, materialmen and other
Liens for amounts not yet due which Liens are imposed by law and created in the
ordinary course of business of Seller consistent with past practice; (iii) Liens
(other than any Lien imposed by ERISA) incurred or deposits made in the ordinary
course of business of Seller consistent with past practices in connection with
worker's compensation, unemployment insurance or other types of social security;
(iv) minor defects of title to Real Property, easements, right-of-way,
restrictions, zoning ordinances and other similar charges or encumbrances not
materially detracting from the value of the Station Asset or interfering with
the ordinary conduct of business of Seller; (v) Liens on leases arising from the
provisions of such lease; (vi) Liens securing indebtedness, all of which Liens
will be discharged by Seller at the Closing upon repayment of all amounts due
and owing; and (vii) Liens created by or through Buyer or any of its Affiliates
(collectively, "Permitted Liens").
1.1.1 All of Seller's rights in and to the licenses, permits and
other authorizations issued to Seller by any governmental authority, including
those issued by the Federal Communications Commission (the "FCC"), used in
connection with the operation of the Stations, along with renewals or
modifications of such items between the date hereof and the Closing Date,
including but not limited to those listed in Schedule 1.1.1 hereto but excluding
business licenses issued to Seller by the City of Reno or the State of Nevada
(hereafter referred to as the "Station Licenses");
1.1.2 All equipment, office furniture and fixtures, office materials
and supplies,
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inventory, spare parts and all other tangible personal property of every kind
and description, and Seller's rights therein, owned, leased or held by Seller
and used in or useful to the operations of the Stations, including but not
limited to those items described or listed in Schedule 1.1.2 hereto, together
with any replacements thereof, improvements or additions thereto made between
the date hereof and the Closing Date, less any retirements or dispositions
thereof made between the date hereof and the Closing Date in the ordinary course
of business of Seller, and less any Excluded Assets listed in Section 1.2 hereof
(the "Tangible Personal Property");
1.1.3 All of Seller's rights in and under those contracts,
agreements, leases and legally binding contractual rights of any kind, written
or oral, relating to the operation of the Stations ("Contracts") including (i)
Contracts listed in Schedule 1.1.3 hereto (ii) those Contracts entered into by
Seller between the date hereof and the Closing Date in the ordinary course of
Seller's business, subject to Section 1.2.4, and Section 8.1; (iii) all
Contracts for the sale of advertising time, subject to Section 8.1 hereto; and
(iv) all Contracts for consideration other than cash, such as merchandise,
services or promotional consideration ("Trade Agreements"), subject to Section
3.3.3 hereto, and (v) contracts and leases entered into in the ordinary course
of business which involve less than $10,000 individually and $30,000 in the
aggregate which are not listed on Schedule 1.1.3 ("Miscellaneous Contracts").
With respect to Schedule 1.1.3, the parties have identified with an asterisk
those Contracts important to the continuation of the Stations' business as it is
currently conducted (the "Material Contracts").
1.1.4 All of Seller's rights in and to all processes, patents, trade
secrets, proprietary information, call letters, trademarks, trade names, service
marks, franchises, copyrights, Internet domain names, including registrations
and applications for registration of any of them, computer
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software programs and programming material of whatever form or nature, jingles,
slogans, the Stations' logos and all other logos or licenses to use same and all
other intangible property rights of Seller, which are used in connection with
the operation of the Stations, including but not limited to those listed in
Schedule 1.1.4 hereto (collectively, the "Intellectual Property") together with
any associated good will and any additions thereto between the date hereof and
the Closing Date;
1.1.5 All of Seller's rights in and to all the files, documents,
records, and books of account relating to the operation of the Stations or to
the Station Assets, including, without limitation, each Station's public files,
programming information and studies, technical information and engineering data,
news and advertising studies or consulting reports, marketing and demographic
data, promotional materials, and filings with the FCC, originals of all written
Contracts to be assigned hereunder, logs, software programs and books and
records relating to employees, financial, accounting, operation and technical
matters; but excluding records relating solely to any Excluded Asset (as
hereinafter defined);
1.1.6 All of Seller's rights under manufacturers' and vendors'
warranties relating to items included in the Station Assets and all similar
rights against third parties relating to items included in the Station Assets;
1.1.7 [Intentionally Omitted]
1.1.8 All rights and interests of Seller under any and all of the
leases of real property used in connection with the Stations' operations (the
"Leased Real Estate") which Leased Real Estate is identified and described in
Schedule 1.1.8;
1.1.9 All such other assets, properties, interests and rights owned
by Seller that are used in connection with the business and operation of the
Stations, except Excluded Assets;
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1.1.10 All of Seller's rights in and to all causes of action for any
past infringement of any of the Intellectual Property.
1.1.11 On the Closing Date, ALVLP shall assign, convey and deliver to
Buyer that certain Agreement made as of April 27, 1998, by and between ALVLP and
Seller (the "Option Agreement").
1.1.12 On the Closing Date, Century shall assign, transfer, convey and
deliver to Buyer that certain Promissory Note made as of April 24, 1998, by and
between Seller and Radio Partners, as amended pursuant to an Amendment to
Promissory Note effective as of August 1, 1998, and as assigned by Radio
Partners to Century pursuant to an Assignment and Consent dated January 7, 1999
(the "Century Note").
1.2 Excluded Assets. Notwithstanding anything to the contrary contained
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herein, it is expressly understood and agreed that the Station Assets shall not
include the following assets or any right, title or interest therein (the
"Excluded Assets"):
1.2.1 All cash, marketable securities, and cash equivalents of Seller
on hand and/or in banks;
1.2.2 All accounts receivable or notes receivable of Seller;
1.2.3 All tangible and intangible personal property of Seller
disposed of or consumed in the ordinary course of business of Seller between the
date hereof and the Closing Date, as permitted hereunder;
1.2.4 All Contracts that have terminated or expired on or prior to
the Closing Date in the ordinary course of business of Seller;
1.2.5 Seller's corporate seals, minute books, charter, limited
liability company,
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and/or partnership documents, corporate stock record books and such other books
and records as pertain to the organization, existence, share capitalization,
partnership, or membership interests of Seller and duplicate copies of such
financial records as are necessary to enable Seller to file its tax returns and
reports as well as any other records or materials relating to Seller generally;
1.2.6 Except as otherwise set forth in Article 16, contracts of
insurance and all insurance proceeds or claims made by Seller arising or related
to the Station Assets prior to Closing;
1.2.7 The Employee Benefit Plans (as defined hereinafter) and the
assets thereof;
1.2.8 Any right to use the names "Salt Broadcasting" and any
variations thereof;
1.2.9 All contracts entered into before this Agreement that are
neither listed in Schedule 1.1.3, nor subject to Section 1.1.3 (v);
1.2.10 Those specific assets identified on the Excluded Assets
Schedule attached to this Agreement as Schedule 1.2.10;
1.2.11 Except as described in Section 1.1.10, all of Seller's
rights in and to all causes of action; and
1.2.12 All tax refunds relating to the period prior to the Closing;
1.2.13 Seller's membership interest in Reno Radio Representatives,
LLC.
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
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2.1 Assumption of Obligations. Subject to the provisions of this Section
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2.1 and Section 2.2, on the Closing Date, Buyer shall assume the obligations of
Seller arising or to be performed after the Closing Date under the Contracts
referred to in Section 1.1.3 in effect on the Closing Date, the Option
Agreement, and the Century Note and all liabilities and obligations that arise
from the
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ownership or operation of the Station Assets after the Closing Date. All of the
foregoing liabilities and obligations shall be referred to herein collectively
as the "Assumed Liabilities."
2.2 Retained Liabilities. Notwithstanding anything contained in this
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Agreement to the contrary, Buyer does not assume or agree to pay, satisfy,
discharge or perform, and will not be deemed by virtue of the execution and
delivery of this Agreement or any document delivered at the execution of this
Agreement, or as a result of the consummation of the transactions contemplated
by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge
or perform, any liability or obligation of the Seller other than the Assumed
Liabilities, including any of the following liabilities or obligations of the
Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or
Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other
provisions of this Agreement, tax liabilities of any and all kinds (federal,
state, local, and foreign) of Seller including, without limitation, any
liabilities for taxes on or measured by income, liabilities for withheld federal
and state income taxes and employee F.I.C.A. (Federal Insurance Contribution
Act) or employer F.I.C.A., and liabilities for income taxes arising as a result
of the transfer of the Station Assets or otherwise by virtue of the consummation
of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to Seller or its
Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by
Seller or any predecessor or Affiliate of Seller of any of the terms or
conditions of any provision of any Real Estate Lease or Contract;
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2.2.5 All liabilities and obligations of Seller or any predecessor
or Affiliate of Seller resulting from, caused by or arising out of, any
violation of law;
2.2.6 To the extent Buyer does not receive a proration at closing for
any of the following: any claims, liabilities, and obligations of Seller as an
employer, including, without limitation, liabilities for wages, supplemental
unemployment benefits, vacation benefits, severance benefits, retirement
benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or
any other employee benefits, withholding tax liabilities, workers' compensation,
or unemployment compensation benefits or premiums, hospitalization or medical
claims, occupational disease or disability claims, or other claims attributable
in whole or in part to employment or termination by Seller or arising out of any
labor matter involving Seller as an employer, and any claims, liabilities and
obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating
to any litigation, proceedings, or investigation of any nature out of the
operations of the Stations on or prior to the Closing Date including, without
limitation. any cliams against or any liabilities for injury to or death of
persons or damage to or destruction of property, any workers' compensation
claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other
indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to
comply with or imposed pursuant to any environmental protection, health, or
safety laws or regulations or resulting from the generation, storage, treatment,
transportation, handling, disposal, release of hazardous substances, solid
wastes, and liquid and gaseous matters by Seller and by any other person in
relation
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to Seller or the Stations, including, without limitation, any liability or
obligation for cleaning up waste disposal sites from or related to acts or
omissions on or prior to the Closing Date.
ARTICLE 3
CONSIDERATION
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3.1 Delivery of Consideration. In exchange for the Station Assets, in
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addition to the assumption of certain obligations of Seller pursuant to Section
2.1 above, Buyer shall, subject to Articles 11 and 12 hereof, at the Closing (as
hereinafter defined) deliver a total of Seven Million Dollars ($7,000,000.00),
subject to adjustment hereunder (the "Purchase Price"), by wire transfer of
immediately available funds, to Seller, ALVLP and Century, as follows:
(a) Buyer shall pay Seller Three Million Five Hundred Fifty Thousand
and 00/100 Dollars ($3,550,000), adjusted pursuant to the provisions of Section
3.3, and by the $116,000 Holdback Amount required by Section 10.10, below;
(b) Buyer shall pay ALVLP One Million and 00/100 Dollars ($1,000,000)
as consideration for ALVLP's assignment of the Option Agreement;
(c) Buyer shall pay Century Two Million Four Hundred Fifty Thousand
Dollars ($2,450,000) as consideration for assignment of the Century Note.
Notwithstanding anything to the contrary contained in the Option Agreement
or the Century Note, Seller, Buyer, ALVLP and Century acknowledge and agree that
(i) the payments under Subsections 3.1(a), 3.1(b) and 3.1(c) hereof shall be
made simultaneously at the Closing to the respective parties; and (ii) the
Option Agreement and the Century Note shall terminate upon payment of the
foregoing consideration at Closing.
3.2 Allocation of Consideration. Within thirty (30) days after the
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Closing Date, Seller
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and Buyer shall negotiate in good faith an allocation of the total consideration
(including the Purchase Price) among the Station Assets identified in Section
1.1.1, through 1.1.10, above (the "Allocation"). If the Allocation is not agreed
upon within thirty (30) days after the Closing Date, Buyer will order an
appraisal of the relevant Station Assets from Broadcast Investments Analysts
("BIA") and BIA will determine the Allocation. The appraisal, if required, shall
be provided to Seller within forty five (45) days after it is ordered. Buyer and
Seller agree to prepare and file all income tax returns (including, if
applicable, Form 8594) in a manner consistent with the Allocation and will not
in connection with the filing of such returns make any allocation that is
contrary to the Allocation. Buyer and Seller agree to consult with each other
with respect to all issues related to the Allocation in connection with any tax
audits, controversy or litigation. The fees for BIA shall be borne equally by
Buyer and Seller.
3.3 Allocations and Prorations.
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3.3.1 The operation of the Stations and the income and expenses
attributable thereto through 11:59 p.m. on the Closing Date (the "Effective
Time") shall be for the account of Seller and thereafter shall be for the
account of Buyer. Expenses for goods and services received both before and after
the Effective Time, utilities charges, ad valorem, real estate, property and
other taxes (other than income taxes, which shall be Seller's sole
responsibility for all taxable periods ending prior to and including the Closing
Date, and those taxes arising from the sale and transfer of the Station Assets,
which shall be paid as set forth in Section 13.2), income and expenses under the
Contracts (other than Trade Agreements), prepaid expenses, music and other
license fees (including any retroactive adjustments thereof), wages, salaries,
and other employee benefit expenses (whether such wages, salaries or benefits
are current or deferred expenses) (including, without limitation,
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liabilities accrued up to the Effective Time for bonuses, commissions, vacation
pay, payroll taxes, workers' compensation and social security taxes) and rents
and similar prepaid and deferred items shall be prorated between Seller and
Buyer in accordance with the first sentence of this Section. Notwithstanding the
foregoing, no proration shall be made with respect to (i) severance or sick
leave with respect to any employee or (ii) any prepaid expense or other deferred
item unless Buyer will receive a benefit in respect of such prepayment or
deferral after the Effective Time. For purposes of this Section 3.3.1, ad
valorem and other real estate taxes shall be apportioned on the basis of the
taxes assessed for the most recently-completed calendar year, with a
reapportionment as promptly as practicable after the tax rates and real property
valuations for the calendar year in which the Closing occurs can be ascertained.
In addition, Buyer shall be entitled to a credit in this proration process for
the amount of any taxes (or other governmental charges) that are due and payable
by Seller, but are being contested by Seller in good faith in appropriate
proceedings and are secured by Liens on the Station Assets that have not been
removed as of or before the Closing (but once such amounts are finally
determined, Seller shall pay the amount determined and Buyer shall return to
Seller the amount credited to Buyer or, in the event that Seller fails to pay
the amount determined, Buyer shall use such credit to remove such liens and
return to Seller the excess of (i) the amount of such credit minus (ii) the
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amount of such taxes or other governmental charges as finally determined, or
Seller shall pay to Buyer the deficiency, as appropriate).
3.3.2 Allocation and proration of the items set forth in Subsection
3.3.1 above and Subsection 3.3.3 below, shall be made by Buyer and a statement
thereof given to Seller within thirty (30) days after the Closing Date. Seller
shall give written notice of any objection thereto within twenty (20) business
days after delivery of such statement, detailing the reason for such objection
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and stating the amount of the proposed final allocation and proration. If a
timely objection is made and the parties cannot reach agreement within thirty
(30) days after receipt of the objection as to the amount of the final
allocation and proration, the matter shall be referred to Xxxxxx Xxxxxxxx,
L.L.P. (the "Independent Auditor") to resolve the matter, whose decision will be
final and binding on the parties, and whose fees and expenses shall be borne by
Buyer and Seller in accordance with the following: each party shall pay an
amount equal to the sum of all fees and expenses of the Independent Auditor on a
proportional basis taking into account the amount of the net allocation and
proration proposed by each of Buyer and Seller and the amount of the final
allocation and proration determined by the Independent Auditor (for example, if
Buyer proposed a payment of $10 to Seller, Seller proposed a payment of $100,
and the Independent Auditor proposed a payment of $30, Buyer would pay 20/90ths
of the Independent Auditor's fees and Seller would pay 70/90ths of those fees
based on the $90 in dispute between the parties). Within five business days
following a final determination hereunder, the party obligated to make payment
will make the payments determined to be due and owing in accordance with this
Section 3.3.
3.3.3. Trade Agreements. Liabilities and obligations under the
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Trade Agreements shall be prorated in favor of Buyer, to the extent that the
fair market value of the air time not yet carried on the Stations under such
agreements as of the Effective Time is greater than the total of the vendor's
prices (as of the date of each Trade Agreement) for the property to be received
by Buyer under such agreements after the Effective Time (the "Trade
Imbalance"); provided, however, that such proration in Buyer's favor shall be
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made only to the extent that the Trade Imbalance exceeds $50,000 in the
aggregate for the Stations. No proration shall be made in favor of Seller
hereunder. As used in this Section 3.3.3, fair market value for air time not yet
carried on the Stations shall be
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computed on the basis of the trade schedule appended hereto as Schedule 3.3.3,
updated to the Effective Time using consistently applied accounting procedures.
3.3.4 Additional Transmitter. The Purchase Price shall be increased
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by the amount paid by Seller to purchase the Xxxxxx Z5CD 5KW FM transmitter (the
"Xxxxxx Transmitter") pursuant to Seller's option to buy in its May 13, 1999
Equipment Rental Agreement with Xxxxxx Corporation, Broadcast Division, which
amount shall not exceed Nineteen Thousand Dollars, provided that the Xxxxxx
Transmitter shall then be included in the Station Assets purchased hereunder.
ARTICLE 4
CLOSING
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4.1 Closing. The consummation of the transactions contemplated herein
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(the "Closing") shall occur, (i) within ten (10) business days after all terms
and conditions as set forth in Articles 11 and 12 have been satisfied or waived,
or (iii) such other date as may be mutually agreed to by the parties ("Closing
Date"). The Closing shall be held in the offices of Xxxxxxx, Xxxxxx & Xxxxxxx,
Ltd., 000 Xxxx Xxxxx Xxxx, Xxxx, Xxxxxx, or such place as the parties hereto
may agree.
ARTICLE 5
GOVERNMENTAL CONSENTS
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5.1 FCC Consent. It is specifically understood and agreed by Buyer and
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Seller that the Closing and the assignments of the Station Licenses and the
transfer of the Station Assets are expressly conditioned on and are subject to
the prior consent and approval of the FCC ("FCC Consent").
5.2 FCC Applications. Within ten (10) business days after the execution
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of this Agreement, Buyer and Seller shall file applications with the FCC for the
FCC Consent ("FCC
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Applications"). Buyer and Seller shall prosecute the FCC Applications with all
reasonable diligence and otherwise use their best efforts to obtain the FCC
Consent as expeditiously as practicable.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SELLER
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6.1 Representations and Warranties of Seller. Seller represents and
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warrants to the Buyer the following:
6.1.1 Organization and Good Standing. (i) Seller is a limited
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liability company duly organized and validly existing under the laws of Nevada,
has all requisite power and authority to own, lease and operate its properties
and to carry on its business as now being conducted and is duly qualified to do
business in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification necessary.
(ii) Except as set forth in Schedule 6.1.1 (ii) Seller has all
requisite power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Seller and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of Seller, its members and
managers. This Agreement has been duly executed and delivered by Seller and
constitutes the legal, valid and binding obligation of Seller, enforceable
against it in accordance with its terms.
6.1.2 Authority. Except as set forth in Schedule 6.1.1 (ii) and
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assuming the consents contemplated by Sections 6.1.2 and 6.1.14 are obtained,
neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (i) violate, conflict with or result in
any breach of any provision of the organizational documents of Seller, (ii)
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violate, conflict with or result in a violation or breach of, or constitute a
default (with or without due notice or lapse of time or both) under, or permit
the termination of, or result in the acceleration of, or entitle any party to
accelerate (whether as a result of the sale of the Station Assets or otherwise)
any material obligation, or result in the loss of any material benefit, or give
rise to the creation of any material lien, charge, security interest or
encumbrance upon any of the properties or assets of Seller or under any of the
terms, conditions or provisions of any loan or credit agreement, note, bond,
mortgage, indenture or deed of trust, or any material license, lease, agreement
or other material instrument or obligation to which Seller is a party or by
which it or any of its properties or assets may be bound or affected; (iii)
violate any order, writ, judgment, injunction, decree, statute, rule or
regulation, of any court, administrative agency or commission or other
governmental authority or instrumentality (a "Governmental Entity") applicable
to Seller or any of its properties or assets. No consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Entity is required by or with respect to Seller in connection with the execution
and delivery of this Agreement by Seller or the consummation by Seller of the
transactions contemplated hereby, except for the FCC Consent.
6.1.3 Financial Statements. Copies of the Stations' balance sheet
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as of December 31, 1998, and the related income statements and pro forma
broadcast cash flow analyses and the internally prepared financial statements
including income statements and pro forma broadcast cash flow analyses (such
financial statements collectively being referred to as the "Seller's Financial
Statements") have been provided to Buyer. The Seller's Financial Statements,
except for the pro forma broadcast cash flow analyses, were prepared from the
books and records of Seller throughout the periods covered thereby and present
fairly, in all material respects, the consolidated financial
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position, results of operations and changes in cash flows of the Stations as of
such dates and for the periods then ended (subject, to the absence of notes and
to normal, recurring adjustments that would not be material in the aggregate).
6.1.4 Absence of Undisclosed Liabilities. There are no material
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liabilities of any kind whatsoever with respect to the Stations (whether
absolute, accrued, contingent or otherwise, and whether due or to become due),
other than liabilities and obligations (i) provided for or reserved against in
the Seller's Financial Statements or (ii) arising after December 31, 1998, in
the ordinary course of business and consistent with past experience.
6.1.5 Compliance with Applicable Laws; FCC Matters. (i) To Seller's
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knowledge and except as set forth in Schedule 6.1.5 hereto or as permitted or
contemplated hereby, the operations of the Stations have been and now are being
conducted in substantial compliance with each law, ordinance, regulation,
judgment, decree, injunction, rule or order of the FCC or any other Governmental
Entity binding on Seller, the Stations or their respective properties or assets.
No investigation or review by any Governmental Entity with respect to Seller or
the Stations is pending or, to the Seller's knowledge, is threatened. Without
limiting the generality of the foregoing and with respect to the Stations, to
Seller's knowledge, the Stations comply in all material respects with the
Communications Act of 1934, as amended (the "Communications Act"), all rules,
regulations and written policies of the FCC thereunder, all obligations with
respect to equal opportunity under applicable law, and all rules and regulations
of the FCC. In addition, Seller has duly filed, or caused to be filed, with the
appropriate Governmental Entities all applications, reports, statements, fees,
documents, registrations, filings or submissions with respect to the operations
of the Stations and the ownership thereof, including, without limitation,
applications for renewal of authority required
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by applicable law to be filed. To Seller's knowledge, all such filings complied
in all material respects with applicable laws when made and no material
deficiencies have been asserted with respect to any such filings. To Seller's
knowledge, all the material required by 47 C.F.R. (S) 73.3526 to be kept in the
public inspection files of the Stations is in such files. Except as disclosed on
Schedule 6.1.5, Seller has no knowledge of any fact or circumstance relating to
Seller or the Stations arising from noncompliance with the Communications Act,
or the rules, regulations or written policies of the FCC in effect on the date
of this Agreement that could reasonably be expected to (a) disqualify Seller
from assigning the Station Licenses to the Buyer or (b) prevent or delay the
consummation by them of the transactions contemplated by this Agreement.
(ii) Schedule 1.1.1 lists (a) all licenses, permits and other
authorizations (including all STL licenses and construction permits) issued by
the FCC relating to the Stations as of the date of this Agreement and (b) all
licenses, permits, or authorizations issued by any other Governmental Entities
which are material to the operations of the Stations as of the date of this
Agreement. The Station Licenses are in full force and effect. The Stations have
been operated in all material respects in accordance with the terms of the
Station Licenses and all engineering and technical requirements of the FCC and
Federal Aviation Administration relating to FM broadcasting, hazards to air
navigation, registration of radio towers, and exposure of humans to non-ionizing
radio frequency radiation. Except for proceedings affecting the radio broadcast
industry generally, there are no proceedings pending or, to the Seller's
knowledge, threatened with respect to ownership or operation of the Stations
which reasonably may be expected to result in the revocation, material adverse
modification, non-renewal or suspension of any of the Station Licenses, the
denial of any pending applications for Station Licenses, the issuance of any
cease and desist order, or the
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imposition of any administrative actions by the FCC or any other Governmental
Entity with respect to the Station Licenses, or which reasonably may be expected
to adversely affect the Stations' ability to operate as currently operated or
the Buyer's ability to obtain assignment of the Station Licenses. With the
exception of operations pursuant to any existing STAs listed on Schedule 1.1.1
hereto, and with the further exception of such temporary reduced power
operations as are necessary for routine maintenance, the Stations operate in
conformity with the Station Licenses and within the operating power tolerances
specified in 47 C.F.R. (S) 73.1560(b).
6.1.6 Litigation. Except as disclosed on Schedule 6.1.6, (i) there is
----------
no action, suit, inquiry, judicial or administrative proceeding, or arbitration
pending or, to the knowledge of Seller, threatened against Seller or the
Stations or any of their respective properties or assets by or before any
arbitrator or Governmental Entity nor are there any investigations relating to
Seller or the Stations or any of their respective properties or assets pending
or, to Seller's knowledge, threatened by or before any arbitrator or
Governmental Entity; (ii) there is no judgment, decree, injunction, or order of
any Governmental Entity or arbitrator outstanding against Seller or the Stations
or any of their respective properties or assets and; (iii) there is no action,
suit, inquiry, judicial or administrative proceeding pending or, to Seller's
knowledge, threatened against Seller or the Stations by a third party relating
to the Seller or the Station Assets or any of the transactions contemplated by
this Agreement.
6.1.7 Insurance. Schedule 6.1.7 sets forth a list of all fire,
---------
liability and other forms of insurance and all fidelity bonds held by or
applicable to the Stations setting forth in respect of each such policy the
policy name, policy number, carrier, term, type of coverage and annual premium.
No event has occurred, including, without limitation, the failure to give any
notice or
18
information, or the delivery of any inaccurate or erroneous notice or
information, which limits or impairs the rights of the insured parties under any
such insurance policies. Seller shall cause comparable policies of insurance to
remain in effect for acts, omissions and events occurring on or prior to the
Closing Date.
6.1.8 Leased Real Estate. Seller has valid leaseholds in the Leased
------------------
Real Estate, free and clear of any Liens except for the Permitted Liens. The
buildings (or portions thereof), improvements and fixtures that are included in
the Leased Real Estate are suitable for their intended use. Seller has a valid
contractual right to use adequate routes of ingress and egress to, from and over
all of the Leased Real Estate necessary to operate the Stations. Schedule 1.1.8
provides the street addresses and/or legal descriptions of the Leased Real
Estate.
6.1.9 Personal Property. Schedule 1.1.2 hereto contains a list of
-----------------
all material Tangible Personal Property. Except as disclosed in Schedule 1.1.2,
Seller owns all Tangible Personal Property referred to in the immediately
preceding sentence and none of such property is, subject to any Liens, other
than Permitted Liens. The Tangible Personal Property is in good operating
condition (subject to normal wear and tear) and is sufficient to permit the
conduct of the business of the Stations in compliance with FCC rules and
regulations. At Closing, Seller shall own or hold under valid leases all of the
Tangible Personal Property listed in Schedule 1.1.2 and this shall include all
of the Tangible Personal Property necessary to conduct the business of the
Stations as presently conducted. Except for the Excluded Assets, the Station
Assets to be transferred hereunder constitute all of the assets, rights and
properties that are reasonably required for the operation of the Stations in
compliance with FCC rules and regulations and substantially as it is now
conducted.
6.1.10 [Intentionally Omitted]
19
6.1.11 Environmental Matters
---------------------
On the date of this Agreement, except as disclosed on Schedule 6.1.11:
(i) To Seller's knowledge, the Leased Real Estate is, and
with respect to any predecessor or prior owner, operator or lessee (each a
"Predecessor") has been, in substantial compliance with all applicable federal,
state and local statutes, codes, rules or regulations as well as common law
decisions relating to the environment, natural resources and public or employee
health and safety ("Environmental Laws");
(ii) To Seller's knowledge, no judicial or administrative
proceedings are pending or threatened against Seller or any of the Leased Real
Estate alleging the violation of or seeking to impose liability pursuant to any
Environmental Law. No notice or claim from any Governmental Entity or other
person has been given to Seller claiming violation of or alleging any liability
under remediation of any Environmental Laws in connection with any of the Leased
Real Estate used in connection with the Station or operations thereon;
(iii) To Seller's knowledge, there are no facts, circumstances
or conditions on the Leased Real Estate or the operations thereon that are
reasonably likely to give rise to an environmental claim or result in
Environmental Costs and Liabilities;
(iv) To Seller's knowledge, all substances, materials or
waste that are regulated by federal, state or local government, as well as any
petroleum or petroleum derived product, used or generated by Seller or by any
Predecessor in connection with the Leased Real Estate ("Hazardous Substances"),
have been stored, used, treated, and disposed of by such persons or on their
behalf in such manner as not to result in any material Environmental Costs or
Liabilities. "Environmental Costs and Liabilities" means any losses, including
environmental remediation costs,
20
liabilities, obligations, damages, fines, penalties or judgments, arising from
or under any Environmental Law or order of or agreement with any Governmental
Entity or other person;
(v) To Seller's knowledge and except as set forth in Schedule
6.1.11(v) hereto, there are not now, nor have there been in the past, on, in or
under any Leased Real Estate when owned, leased or operated by Seller or, when
owned, leased or operated by any Predecessor, any of the following: any (a)
underground storage tanks, above-ground storage tanks, dikes or impoundments
containing Hazardous Substances, (b) asbestos containing materials, (c)
polychlorinated biphenyls or (d) radioactive substances; and
(vi) The Stations' operations do not have a significant environmental
impact, as defined by 47 C.F.R. (S) 1.1307.
6.1.12 Taxes. (i) All Tax Returns (as defined in sub-section (vii)
-----
below) that are required to be filed on or before the execution of this
Agreement by Seller, have been duly filed on a timely basis under the statutes,
rules and regulations of each applicable jurisdiction. All such Tax Returns are
materially complete and accurate. All Taxes, whether or not reflected on the Tax
Returns, which are due with respect to the Seller and any Affiliates have been
timely paid by the Seller and/or any such Affiliates, unless such Taxes are
disputed. Schedule 6.1.12 lists all Taxes disputed by Seller and/or its
Affiliates. For the purposes of this Section, Affiliates shall mean any entity
that files a consolidated tax return with Seller.
(ii) No claim for assessment or collection of Taxes has been asserted
against Seller or any Affiliates. Neither of Seller nor any of its Affiliates is
a party to any pending audit, action, proceeding or investigation by any
Governmental Entity for the assessment or collection of Taxes nor does Seller or
any Affiliate have knowledge of any threatened audit, action,
21
proceeding or investigation.
(iii) Neither Seller nor any of its Affiliates has waived or extended
any statutes of limitation for the assessment or collection of Taxes. No claim
has ever been made by a Governmental Entity in a jurisdiction where Seller or
any Affiliate does not currently file Tax Returns that any of Seller or its
Affiliates is or may be subject to taxation by that jurisdiction. Nor is Seller
or any of its Affiliates aware that any such assertion of tax jurisdiction is
pending or threatened. No Liens, other than Permitted Liens (whether filed or
arising by operation of law) have been imposed upon or asserted against any of
the assets of the Stations as a result of or in connection with any failure, or
alleged failure to pay any Tax.
(iv) Seller has withheld and paid all Taxes required to be withheld
in connection with any amounts paid or owing to any employee, creditor,
independent contractor or other third party.
(v) Seller is not a foreign person within the meaning of Section
1445 of the Internal Revenue Code (the "Code").
(vi) No payment described in this Agreement is subject to Section
280G of the Code.
(vii) For purposes of this Agreement, the terms "Tax" and "Taxes"
shall mean all federal, state, local, or foreign income, payroll, Medicare,
withholding, unemployment insurance, social security, sales, use, service,
service use, leasing, leasing use, excise, franchise, gross receipts, value
added, alternative or add-on minimum, estimated, occupation, real and personal
property, stamp, duty, transfer, workers' compensation, severance, windfall
profits, environmental (including taxes under Section 59A of the Code), other
tax, charge, fee, levy or assessment of the
22
same or of a similar nature, including any interest, penalty, or addition
thereto, whether disputed or not. The term "Tax Return" means any return,
declaration, report, claim for refund, or information return or statement
relating to Taxes or any amendment thereto, and including any schedule or
attachment thereto.
6.1.13 Personnel. A list has been provided by Seller to Buyer as of
---------
November 15, 1999 of the names, positions, and location of all employees or
other station and broadcast personnel (whether employees or independent
contractors or employees of a time broker) of the Stations, which sets forth the
current salaries of all such employees and the other compensation arrangements
with all General Managers, Station Managers, Program Directors and Business
Managers (collectively, "Station Management") and all on-the-air broadcast
personnel of the Stations and indicates which of those employees, Station
Management or on-the-air broadcast personnel is a party to an employment or
consulting or similar contract with that is not terminable upon not more than 60
days notice without additional cost to the employer.
6.1.14 Contracts. The Contracts are the only contractual agreements
----------
necessary to carry out the business and operations of the Stations as currently
conducted. Each Contract with respect to the Stations is a valid and binding
obligation of Seller, and is in full force and effect. Seller and, to Seller's
knowledge, each other party to such Contract with respect to the Stations have
performed in all material respects the obligations required to be performed by
them and are not (with or without lapse of time or the giving of notice, or
both) to Seller's knowledge in material breach or default thereunder. Schedule
1.1.3 identifies, as to each Contract with respect to the Stations listed
thereon, whether the consent of the other party thereto is required in order for
such Contract to continue in full force and effect upon the consummation of the
transactions contemplated hereby.
23
6.1.15 ERISA Compliance. Neither Seller nor any other trades or businesses
----------------
under common control within the meaning of Section 4001(b)(1) of ERISA
(collectively, the "ERISA Group") has contributed or been obligated to
contribute to any "multi employer plan" as such term is defined in Section 3(37)
or Section 4001 (a)(3) of ERISA except as disclosed on Schedule 6.1.15. Schedule
6.1.15 lists all "employee benefit plans" within the meaning of Section 3(3) of
ERISA and bonus, pension, profit sharing, deferred compensation, incentive
compensation, stock ownership, stock purchase, stock option, phantom stock,
retirement, vacation, severance, disability, death benefit, hospitalization,
insurance or other plan or arrangement or understanding providing benefits to
any present or former employee or contractor of the Stations maintained by
Seller, or as to which Seller (with respect to such individuals) has any
liability or obligation (collectively, "Employee Benefit Plans").
6.1.16 Labor. Seller has not agreed to recognize any union or other
-----
collective bargaining unit, nor has any union or other collective bargaining
unit been certified as representing any of Seller's employees. To Seller's
knowledge, except as disclosed on Schedule 6.1.16, Seller, with respect to the
Stations, (i) is and has been in substantial compliance with all applicable laws
regarding employment and employment practices, terms and conditions of
employment, wages and hours, and plant closing, occupational safety and health
and workers' compensation and is not engaged, nor has it engaged, in any unfair
labor practices; (ii) has no, and has not had any unfair labor practice charges
or complaints pending or threatened against it before the National Labor
Relations Board; (iii) has no and has not had any grievances pending or
threatened against it; and (iv) has no, and has not had any charges pending or
threatened against it before the Equal Employment Opportunity Commission or any
state or local agency responsible for the prevention
24
of unlawful employment practices. There is no labor strike, slowdown, work
stoppage or lockout actually pending or, to Seller's knowledge, threatened
against or affecting the Stations. No union organizational campaign or
representation petition is currently pending with respect to the employees
working for the Stations.
6.1.17 Patents, Trademarks, Etc. Schedule 1.1.4 sets forth all call
------------------------
letters, patents, patent applications, registered trademarks, trade names,
Internet domain names, service marks, trade secrets, applied for, issued, owned
or used copyrights and other proprietary intellectual property used in the
operation of the Stations (whether owned, leased or licensed). Seller has not
received any notice of any claimed conflict, violation or infringement of such
Intellectual Property rights. To Seller's knowledge, none of such material
Intellectual Property rights is being infringed by any third party.
6.1.18 Absence of Certain Changes or Events. Except as contemplated or
------------------------------------
expressly permitted by this Agreement, since December 31, 1998 there has not
been (i) any material damage, destruction or loss of any kind with respect to
the Stations not covered by valid and collectible insurance; (ii) with respect
to the Stations the execution of any agreement with any Station management or
broadcast personnel (whether an employee or independent contractor) providing
for his/her employment, or any increase in compensation or severance or
termination of benefits payable or to become payable by Seller, to any officer,
Station management, or broadcast personnel (whether an employee or independent
contractor), or any increase in benefits under any collective bargaining
agreement, except in any case in the ordinary course of business consistent with
prior practice and except as permitted by Section 8.1.1 (x); or (iii) any change
by Seller in its financial or tax accounting principles or methods.
25
6.1.19 Commission or Finder's Fees. Neither Seller nor any entity acting
---------------------------
on behalf of Seller has agreed to pay a commission, finder's fee or similar
payment in connection with this Agreement or any matter related hereto to any
person or entity other than Media Venture Partners ("MVP"). Seller agrees to pay
$100,000 of the fee to MVP and the remaining $130,000 of such fee shall be paid
by Buyer.
6.1.20 Full Disclosure. No representation or warranty by Seller contained
---------------
in this Agreement (including the Disclosure Schedules hereto) or in any
certificate furnished pursuant to this Agreement contains or will contain any
untrue statement of a material fact, or omits or will omit to state any material
fact necessary, in light of the circumstances under which it was or will be
made, in order to make the statements herein or therein not misleading.
6.1.21 Seller's Financial Condition. Except as indicated in Schedule
----------------------------
6.1.21, no insolvency proceedings of any character, including, without
limitation, bankruptcy, receivership, reorganization, composition or arrangement
with creditors, voluntary or involuntary, affecting Seller or any of its
respective assets or properties are pending, or threatened, and Seller has not
made any assignment for the benefit of creditors, nor has Seller taken any
action with a view to, or which would constitute a basis for, the institution of
any such insolvency proceedings. Seller shall use the proceeds received under
this agreement to pay or to make appropriate provision for the payment of any
and all creditors of Seller providing goods and services to the Stations, prior
to making any distribution to its members.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
7.1 Organization and Good Standing. (i) Buyer is a limited liability
------------------------------
company duly
26
organized, validly existing and in good standing under the laws of the State of
Delaware, has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted and is duly
qualified to do business in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes such qualification
necessary.
(ii) Buyer has all necessary power and authority to enter into and
perform this Agreement and the transactions contemplated hereby. Buyer's
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action on behalf of Buyer, its members and managers. This Agreement
has been duly executed and delivered by Buyer and constitutes the valid and
binding obligation of Buyer, enforceable in accordance with its terms.
7.2 Qualification. To Buyer's knowledge, there is no fact, allegation,
-------------
condition, or circumstance relating to Buyer that could reasonably be expected
to prevent the grant of the FCC Consent. Buyer knows of no fact that would,
under the Communications Act of 1934, as amended, or the rules, regulations and
policies of the FCC, disqualify Buyer from becoming the licensee of the
Stations.
7.3 Authority. Except as set forth in Schedule 7.3 hereof, neither the
---------
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (i) violate, conflict with or result in
any breach of any provision of the organizational documents of Buyer, (ii)
either alone or with the giving of notice or the passage of time, violate the
terms, conditions or provisions of, or constitute a default under, any
agreement, instrument, license or permit to which Buyer is now subject, (iii)
violate any order, writ, judgment, injunction, decree, statute, rule or
regulation, of any court, administrative agency or commission or other
governmental
27
authority or instrumentality (a "Governmental Entity") applicable to Buyer or
any of its properties or assets. No consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental Entity is
required by or with respect to Buyer in connection with the execution and
delivery of this Agreement by Buyer or the consummation by Buyer of the
transactions contemplated hereby, except for the FCC Consent.
7.4 Compliance with Law. Buyer is in substantial compliance with each law,
-------------------
ordinance, regulation, judgment, decree, injunction, rule or order of the FCC or
any other Governmental Entity binding on Buyer. No investigation or review by
any Governmental Entity with respect to Buyer is pending or, to the Buyer's
knowledge, is threatened. Buyer has no knowledge of any fact or circumstance
relating to Buyer arising from noncompliance with the Communications Act, or the
rules, regulations or written policies of the FCC in effect on the date of this
Agreement that could reasonably be expected to (i) disqualify Buyer from
acquiring the Station Licenses from Seller (ii) prevent or delay the
consummation by them of the transactions contemplated by this Agreement.
7.5 Litigation Except as disclosed on Schedule 6.1.6, (i) there is no
----------
action, suit, inquiry, judicial or administrative proceedings, or arbitration
pending or, to the knowledge of Buyer, threatened against Buyer or any of its
properties or assets by or before any arbitrator or Governmental Entity nor are
there any investigations relating to Buyer or its properties or assets pending
or, to Buyer's knowledge, threatened by or before any arbitrator or Governmental
Entity; (ii) there is no judgement, decree, injunction, or order of any
Governmental Entity or arbitrator outstanding against Buyer or any of its
properties or assets and; (iii) there is no action, suit, inquiry, judicial or
administrative proceeding pending or, to Buyer's knowledge, threatened against
Buyer by a third party relating to the Buyer or any of the transactions
contemplated by this Agreement.
28
7.6 Commission or Finder's Fees. Neither Buyer nor any entity acting on
---------------------------
behalf of Buyer has agreed to pay a commission, finder's fee or similar payment
in connection with this Agreement or any matter related hereto other than MVP.
Buyer agrees to pay $130,000 of the fee to MVP and the remaining $100,000 of
such fee shall be paid by Seller.
7.7 Full Disclosure. No representation or warranty by Buyer contained in
---------------
this Agreement (including the Disclosure Schedules hereto) or in any certificate
furnished pursuant to this Agreement contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
necessary, in light of the circumstances under which it was or will be made, in
order to make the statements herein or therein not misleading.
7.8 Availability of Funds. Buyer will have available as of the Closing
---------------------
Date sufficient funds to enable it to consummate the transactions contemplated
hereby.
ARTICLE 8
COVENANTS OF SELLER
-------------------
8.1 Conduct of Station Prior to the Closing Date:
--------------------------------------------
8.1.1 Seller covenants and agrees with Buyer that between the date of
this Agreement and (except as otherwise noted below) the Closing Date, the
Seller, with respect to the Stations shall:
(i) use commercially reasonable efforts to maintain its present
business organization, keep available the services of its present employees and
independent contractors, preserve its relationships with customers and others
having business relationships with the Stations, and refrain from materially and
adversely changing any of its business practices and policies (including but not
limited to advertising (including substantially the same amount of cash
29
expenditure), marketing, pricing, purchasing, personnel, sales, and budget
practices and policies);
(ii) maintain its books of account and records in the usual
and ordinary manner;
(iii) notify Buyer if the regular broadcast transmission of any
of the Stations from its main transmitting facilities at full authorized
effective radiated power is interrupted for a period of more than five
consecutive hours or for an aggregate of 10 or more hours in any continuous
three-day period;
(iv) operate in the usual and ordinary course of business in
accordance with past practice and conduct its business in all material respects
in compliance with the terms of the Station Licenses and all applicable laws,
rules, and regulations, including, without limitation, the applicable rules and
regulations of the FCC;
(v) use, repair, and, if necessary, replace any of the
Stations' studio and transmission assets in a reasonable manner consistent with
historical practice and maintain their assets in substantially their current
condition, ordinary wear and tear excepted;
(vi) maintain insurance in accordance with Section 6.1.7;
(vii) not incur any debts, obligations, or liabilities
(absolute, accrued, contingent, or otherwise) that include obligations (monetary
or otherwise) to be performed by Buyer that exceed Ten-thousand Dollars
($10,000) individually or Thirty Thousand Dollars ($30,000) in the aggregate;
(viii) not lease, mortgage, pledge, or subject to a lien, claim,
or encumbrance (other than Permitted Liens ) any of the Station Assets except in
the ordinary course of business or sell or transfer any of the Station Assets
without replacing such Station Assets with an asset of
30
substantially the same value and utility;
(ix) without the prior consent of Buyer, (a) not modify or
extend any Contracts or (b) enter into any new Contract the payments under which
exceed Ten-thousand Dollars ($10,000) individually or Thirty Thousand Dollars
($30,000) in the aggregate;
(x) not make or grant any general wage or salary increase or
generally materially modify the employees' terms and conditions of employment
except in the ordinary course of business, and with respect to any Station
Management and on-air personnel, Seller shall not make or grant any wage or
salary increase or modify any terms and conditions of employment without the
prior consent of Buyer except in the ordinary course of business; provided,
however, that Seller shall be permitted to make bonus payments to any employees
including Station Management and on-air personnel;
(xi) not make any change in the accounting principles,
methods, or practices followed by it or depreciation or amortization policies or
rates; (xii) not make any loans or make any dividends or distributions other
than of Excluded Assets;
(xiii) other than in the ordinary course of business, not cancel
or compromise any debt or claim, or waive or release any right, of material
value;
(xiv) not disclose to any person (other than to Xxx Xxxxx,
Americom, ALVLP, Century, Buyer and their representatives) any confidential or
proprietary information;
(xv) use commercially reasonable efforts to maintain the
present format of the Stations and with programming consistent with past
practices;
(xvi) other than in the ordinary course of business, not
increase the number
31
of regularly scheduled commercial units run during the day-parts on the Stations
(other than changes in the number of commercial units run during any day-part as
a result of operating difficulties that require commercial units to be broadcast
at times other than as scheduled); or
(xvii) agree to do any of the foregoing.
8.2 Access. Seller shall (i) give or cause the Stations to give Buyer and
------
Buyer's counsel, accountants, engineers and other representatives, excluding
environmental consultants, reasonable access during normal business hours to
all of Seller's properties, books, Contracts, Trade Agreements, reports and
records including financial information and tax returns relating to the
Stations, and to all real estate, buildings and equipment relating to the
Stations, in order that Buyer may have full opportunity to make such
investigation, excluding environmental assessments, as it desires of the affairs
of the Stations and (ii) furnish Buyer with information, and copies of all
documents and agreements including but not limited to financial and operating
data and other information concerning the financial condition, results of
operations and business of the Stations, that Buyer may reasonably request. The
rights of Buyer under this Section shall not be exercised in such a manner as to
interfere unreasonably with the business of the Stations.
8.2.1 Interim Financial Statements. Seller shall promptly deliver
----------------------------
to Buyer copies of any monthly, quarterly or annual financial statements
relating to the Stations' operations that may be prepared or received by Seller
during the period from the date hereof through the Closing Date. Such financial
statements shall fairly present the financial position and results of operations
of the Stations as at the dates and for the periods indicated, and if prepared
by or on behalf of Seller, shall be prepared on a basis consistent and in
accordance with the basis upon which the financial statements in Section 6.1.3
were prepared.
32
8.3 Other Consents. Seller will use commercially reasonably efforts to
--------------
obtain all consents, authorizations, or approvals required for the consummation
of the transactions contemplated by this Agreement.
8.4 No Inconsistent Action. Seller shall not take any action which is
----------------------
inconsistent with its obligations under this Agreement.
8.5 Notification. Seller shall promptly notify Buyer in writing of (i)
------------
the failure of Seller or any employee or agent of Seller to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with hereunder; (ii) the occurrence of any event that would entitle
Buyer to terminate this Agreement pursuant to Section 15.1; or (iii) any overt
threat or actual resignation or termination of any Station Management or over-
the-air personnel at the Stations.
8.6 [Intentionally Omitted]
---------------------
8.7 [Intentionally Omitted]
---------------------
8.8 FCC Filings. Seller shall file or cause to be filed on a current
-----------
basis until the Closing Date all applications, fees, reports and documents
required to be filed with the FCC with respect to the Stations. Copies of each
such application, fee filing, report and document filed between the date hereof
and the Closing Date shall be furnished to Buyer promptly after its filing.
8.9 Updating of Information. Between the date of this Agreement and the
-----------------------
Closing Date, Seller will deliver to Buyer, on a monthly basis within 30 days of
the end of each month, information relating to the operation of the Stations,
including weekly sales reports and such other financial information that may be
reasonably requested.
ARTICLE 9
COVENANTS OF BUYER
------------------
33
9.1 Notification. Buyer shall promptly notify Seller in writing of (i)
------------
any litigation, arbitration or administrative proceeding pending or, to its
knowledge, threatened against Buyer which challenges the transactions
contemplated hereby or (ii) the failure of Buyer, or any employee or agent of
Buyer to comply with or satisfy in any material respect any covenant, condition
or agreement to be complied with hereunder and (iii) the occurrence of any event
that would entitle Seller to terminate this Agreement pursuant to Section 15.1.
9.2 No Inconsistent Action. Buyer shall not take any action which is
----------------------
inconsistent with its obligations under this Agreement.
9.3 Post-Closing Access. Buyer, for a period of one (1) year following
-------------------
the Closing Date, shall make available during normal business hours for audit
and inspection by Seller and its representatives, for any reasonable purpose and
upon reasonable notice, all records, files, documents and correspondence
transferred to it hereunder relating to the pre-closing period. All information,
records, files, documents and correspondence made available or disclosed under
this Section 9.3 shall be kept confidential.
9.4 Other Consents. Buyer will use commercially reasonable efforts to
--------------
obtain all necessary consents, authorizations, or approvals, in each case,
required for Buyer's consummation of the transactions contemplated by this
Agreement.
ARTICLE 10
JOINT COVENANTS
---------------
Buyer and Seller covenant and agree that they shall act in accordance with
the following:
10.1 Confidentiality. Buyer and Seller shall each keep confidential all
---------------
information obtained by them with respect to the other party hereto in
connection with this Agreement and the
34
negotiations preceding this Agreement, and will use such information solely in
connection with the transactions contemplated by this Agreement, and if the
transactions contemplated hereby are not consummated for any reason, each shall
return to each other party hereto, without retaining a copy thereof, any
schedules, documents or other written information obtained from such other party
in connection with this Agreement and the transactions contemplated hereby
except to the extent required or useful in connection with any claim made with
respect to the transactions contemplated by this Agreement or the negotiation
thereof. Notwithstanding the foregoing, no party shall be required to keep
confidential or return any information which (i) is known or available through
other lawful sources, not bound by a confidentiality agreement with the
disclosing party, or (ii) is or becomes publicly known through no fault of the
receiving party or its agents, or (iii) is required to be disclosed pursuant to
an order or request of a judicial or government authority (provided the non-
disclosing party is given reasonable prior notice such that it may seek, at its
expense, confidential treatment of the information to be disclosed), (iv) is
developed by the receiving party independently of the disclosure by the
disclosing party or (v) is required to be disclosed under applicable law or
rule, as determined by counsel for the receiving party.
10.2 Cooperation. Buyer and Seller shall cooperate fully with one another
-----------
in taking any actions, including actions to obtain the required consent of any
governmental instrumentality or any third party necessary or helpful to
accomplish the transactions contemplated by this Agreement.
10.3 Control of Station. Prior to Closing, Buyer shall not, directly or
------------------
indirectly, control or direct the operations of the Stations.
10.4 Bulk Sales Laws. Buyer hereby waives compliance by Seller with the
---------------
provisions of the "bulk sales" or similar laws of any state. Seller shall
indemnify Buyer and hold it harmless from
35
any and all loss, cost, damage and expense (including but not limited to,
reasonable attorney's fees) sustained by Buyer as a result of any failure of
Seller to comply with any "bulk sales" or similar laws.
10.5 Public Announcements. Neither Buyer nor Seller shall issue any press
--------------------
release or make any disclosure with respect to the transaction
contemplated by this Agreement without the prior written approval of the other
party, except as may be required by applicable law or by obligations pursuant
to any listing agreement with any securities exchange or any stock exchange
regulations.
10.6 [Intentionally Omitted]
---------------------
10.7 Employee Matters. Commencing with the execution of this Agreement,
----------------
Seller shall make available the Stations' personnel during normal business hours
for Buyer to interview prior to the Closing Date. In addition to those
employees whose contracts are being assumed by Buyer pursuant to Section 1.1.3,
within five (5) business days before the Closing Date, Buyer shall notify Seller
of the names of other employees to whom Buyer shall offer employment (herein
collectively referred to as "Transferred Employees"). Seller hereby consents to
Buyer making such offers of employment relating to the Stations subject to the
Closing. Seller shall be responsible for all obligations or liabilities to those
employees not offered employment by Buyer, and Buyer shall have no obligations
with respect to those employees (herein referred to as Retained Employees).
10.8 Condition of Real Estate. Buyer may, at its sole expense, conduct
------------------------
title examinations and land surveys (the "Studies") of the Real Estate.
10.9 Indemnification.
---------------
(i) Indemnification of Buyer. From and after the Closing and
------------------------
subject to the provisions of this Section 10.9, Seller agrees to indemnify and
hold harmless the Buyer Indemnified
36
Parties from and against any and all Buyer Indemnified Costs.
(ii) Indemnification of Seller. From and after the Closing and
-------------------------
subject to the provisions of this Section 10.9, Buyer agrees to indemnify and
hold harmless the Seller Indemnified Parties from and against any and all Seller
Indemnified Costs.
(iii) Defense of Third Party Claims. An Indemnified Party shall
-----------------------------
give prompt written notice to any entity or person who is obligated to provide
indemnification under Subsection (i) and (ii) above (an "Indemnifying Party") of
the commencement or assertion of any action, proceeding, demand, or claim by a
third party (collectively, a "third party action") in respect of which such
Indemnified Party shall seek indemnification hereunder. Any failure so to
notify an Indemnifying Party shall not relieve such Indemnifying Party from any
liability that it, he, or she may have to such Indemnified Party under this
Section 10.9 unless the failure to give such notice materially and adversely
prejudices such Indemnifying Party. The Indemnifying Party shall have the right
to assume control of the defense of, settle, or otherwise dispose of such third
party action on such terms as it deems appropriate; provided, however, that:
(a) The Indemnified Party shall be entitled, at its own
expense, to participate in the defense of such third party action (provided,
however, that the Indemnifying Party shall pay the attorneys' fees of the
Indemnified Party if (1) the employment of separate counsel shall have been
authorized in writing by the Indemnifying Party in connection with the defense
of such third party action, (2) the Indemnifying Party shall not have employed
counsel reasonably satisfactory to the Indemnified Party to have charge of such
third party action, (3) the Indemnified Party shall have reasonably concluded
that there may be defenses available to such Indemnified Party that are
different from or additional to those available to the Indemnifying Party, or
(4) the Indemnified Party's counsel
37
shall have advised the Indemnified Party in writing, with a copy delivered to
the Indemnifying Party, that there is a material conflict of interest that could
violate applicable standards of professional conduct to have common counsel);
(b) the Indemnifying Party shall obtain the prior written
approval of the Indemnified Party before entering into or making any settlement,
compromise, admission, or acknowledgment of the validity of such third party
action or any liability in respect thereof if, pursuant to or as a result of
such settlement, compromise, admission, or acknowledgment, injunctive or other
equitable relief would be imposed against the Indemnified Party or if, in the
opinion of the Indemnified Party, such settlement, compromise, admission, or
acknowledgment could have a material adverse effect on its business;
(c) No Indemnifying Party shall consent to the entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by each claimant or plaintiff to each Indemnified Party
of a release from all liability in respect of such third party action; and
(d) The Indemnifying Party shall not be entitled to control
(but shall be entitled to participate at its own expense in the defense of), and
the Indemnified Party shall be entitled to have sole control over, the defense
or settlement, compromise, admission, or acknowledgment of any third party
action (1) as to which the Indemnifying Party fails to assume the defense within
a reasonable length of time or (2) to the extent the third party action seeks an
order, injunction, or other equitable relief against the Indemnified Party
which, if successful, would materially adversely affect the business,
operations, assets, or financial condition of the Indemnified Party; provided,
--------
however, that the Indemnified Party shall make no settlement, compromise,
-------
admission, or acknowledgment that
38
would give rise to liability on the part of any Indemnifying Party without the
prior written consent of such Indemnifying Party.
The parties hereto shall extend reasonable cooperation in connection with
the defense of any third party action pursuant to this Section 10.9 and, in
connection therewith, shall furnish such records, information, and testimony and
attend such conferences, discovery proceedings, hearings, trials, and appeals as
may be reasonably requested.
(iv) Direct Claims. In any case in which an Indemnified Party
-------------
seeks indemnification hereunder which is not subject to Subsection (iii) because
no third party action is involved, the Indemnified Party shall notify the
Indemnifying Party in writing of any Indemnified Costs which such Indemnified
Party claims are subject to indemnification under the terms hereof. Subject to
the limitations set forth in Subsection (v)(b), the failure of the Indemnified
Party to exercise promptness in such notification shall not amount to a waiver
of such claim unless the resulting delay materially prejudices the position of
the Indemnifying Party with respect to such claim.
(v) Limitations. The following provisions of this Section 10.9
-----------
shall limit the indemnification obligations hereunder.
(a) Minimum Loss. An Indemnifying Party shall not be
------------
required to indemnify an Indemnified Party for Buyer or Seller Indemnified Costs
unless and until the aggregate amount of such Buyer or Seller Indemnified Costs
for which the Indemnified Party is otherwise entitled to indemnification
pursuant to this Section 10.9 exceeds $15,000.00 (the "Minimum Loss"). After the
Minimum Loss is exceeded, the Indemnified Party shall be entitled to be paid the
entire amount of its Indemnified Costs in excess of (but not including ) the
Minimum Loss, subject to the limitations on recovery and recourse set forth in
this Subsection (v).
39
(b) Limitation as to Time. No Indemnifying Party shall be
---------------------
liable for any Indemnified Costs pursuant to this Section 10.9 unless a written
claim for indemnification in accordance with Subsections (iii) or (iv) is given
by the Indemnified Party to the Indemnifying Party with respect thereto on or
before 5:00 p.m., Reno, Nevada time one (1) year after the Closing Date.
(c) Limited Recourse. The aggregate liability of an
----------------
Indemnifying Party pursuant to this Section 10.9 shall be limited to
$500,000.00.
(d) Sole and Exclusive Remedy. Seller and Buyer each
-------------------------
acknowledge and agree that, after the Closing Date, notwithstanding any other
provision of this Agreement to the contrary, such party's sole and exclusive
remedy with respect to Buyer or Seller Indemnified Costs and any and all other
claims relating to the subject matter of this Agreement and the transactions
contemplated hereby and by any of the other documents delivered at Closing shall
be in accordance with, and limited by, the provisions set forth in this Section
10.9.
(vi) Definitions. As used in this Section 10.9:
-----------
(a) "Buyer Indemnified Parties" means Buyer, its members,
managers, employees and its Affiliates;
(b) "Seller Indemnified Parties" means Seller, its members,
managers, employees and its Affiliates;
(c) "Buyer Indemnified Costs" means all costs, losses and
damages (including reasonable attorney fees) incurred as a result of or arising
out of (1) the material breach by Seller of any of its representations and
warranties contained in this Agreement, (2) the material failure by Seller to
perform its covenants set forth in this Agreement, (3) the conduct of the
operations of the Station or the use or ownership of the Station Assets on or
before the Closing Date, including any and
40
all liabilities arising under any of the Station Licenses or Contracts which
relate to events occurring prior to the Closing Date, and (4) any and all
obligations or liabilities of Seller under any contract or agreement not
expressly assumed by Buyer; and
(d) "Seller Indemnified Costs" means all costs, losses and
damages (including reasonable attorney fees) incurred as a result of or arising
out of (1) the material breach by Buyer of any of its representations and
warranties contained in this Agreement, (2) the material failure by Buyer to
perform its covenants set forth in this Agreement, (3) the conduct of the
operations of the Station or the use or ownership of the Station Assets after
the Closing Date, including any and all liabilities arising under any of the
Station Licenses which relate to events occurring after the Closing Date, and
(4) any and all obligations or liabilities of Seller under any contract or
agreement assumed by Buyer pursuant to the terms hereof.
(vii) Investigation. The rights of a party to indemnification under
-------------
this Section 10.9 for damages resulting from any untrue representation or
warranty shall not be affected by any investigation made by that party or by
whether or not that party relied upon such untrue representation or warranty.
10.10 Indemnification Escrow.
----------------------
(i) On the Closing Date, Buyer and Seller will enter into the
Indemnification Escrow Agreement in the form of Exhibit 10.10 hereto in
accordance with which Buyer shall at Closing deposit an amount of the Purchase
Price equal to $116,000 (the "Holdback Amount") with the escrow agent identified
in the Indemnification Escrow Agreement (the "Indemnification Escrow Agent").
(ii) Seller hereby covenants and agrees that, if during the term of the
Indemnification set out in Section 10.9, Seller is or becomes obligated to
indemnify Buyer then, Seller will execute and
41
deliver to the Indemnification Escrow Agent written instructions to release to
Buyer such portion of the Holdback Amount as is necessary to indemnify Buyer for
amounts due under Section 10.9.
10.11 Non-Competition. At Closing, Buyer, Seller and Xxxxx Xxxxxxxxxxxxxx
---------------
shall enter into the Consulting and Non-Compete Agreement appended hereto as
Exhibit 10.11.
ARTICLE 11
CONDITIONS OF CLOSING BY BUYER
------------------------------
The obligations of Buyer hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of all of the following
conditions:
11.1 Representations and Warranties. All representations and warranties
------------------------------
of Seller made in this Agreement or in any Exhibit, Schedule or document
delivered pursuant hereto except those given as of a specified date, shall be
true and complete in all material respects as of the date hereof and on and as
of the Closing Date as if made on and as of that date, except for changes
expressly permitted or contemplated by the terms of this Agreement.
11.2 Compliance with Agreement. All of the terms, covenants and
-------------------------
conditions to be complied with and performed by Seller on or prior to the
Closing Date shall have been complied with or performed in all material
respects.
11.3 Third Party Consents and Approvals. Seller shall have obtained all
----------------------------------
third-party consents and approvals, if any, required for the transfer or
continuance, as the case may be, of (i) the Material Contracts identified on
Schedule 1.1.3 and (ii) the leases of real property identified on Schedule 1.8.
11.4 Closing Certificate. Buyer shall have received a certificate, dated
-------------------
as of the Closing Date, from the Seller, executed by a manager of Seller to the
effect of Sections 11.1 and 11.2.
11.5 Governmental Consents.
---------------------
42
11.5.1 FCC. The FCC Consent shall have been issued by the FCC
---
without any conditions that would otherwise permit Buyer to terminate this
Agreement pursuant to Section 15.1(v), below, and each such FCC Consent shall
have become a Final Order. For purposes of the Agreement, "Final Order" means
action by the FCC granting an application contemplated by this Agreement which
is not reversed, stayed, enjoined, set aside, annulled or suspended, and with
respect to which action no timely request for stay, petition for rehearing, or
reconsideration, application for review or appeal is pending, and as to which
the time for filing any such request, petition or appeal or reconsideration by
the FCC on its own motion has expired.
11.5.2 [Intentionally Omitted]
---------------------
11.5.3 Other Consents. All other material authorizations, consents,
--------------
approvals, and clearances of federal, state, or local Governmental Entities
required to permit the consummation of the transactions contemplated by this
Agreement shall have been obtained.
11.6 Adverse Proceedings. No injunction, order, decree or judgment of any
-------------------
court, agency or other Governmental Entities shall have been rendered against
Seller or Buyer which would render it unlawful, as of the Closing Date, to
effect the transactions contemplated by this Agreement in accordance with its
terms.
11.7 Closing Documents. Seller shall have executed and delivered or
-----------------
caused to be delivered to Buyer, on the Closing Date (i), all bills of sale,
endorsements, assignments and other instruments of conveyance and transfer
consistent with the terms hereof and otherwise reasonably satisfactory in form
and substance to Buyer, effecting the sale, transfer, assignment and conveyance
of the Station Assets to Buyer and (ii) all other documents, instruments,
certificates and agreements required of Seller under the terms of this
Agreement. ALVLP and Century shall have executed and
43
delivered to Buyer, on the Closing Date, assignments of the Option Agreement and
the Century Note, respectively, reasonably satisfactory in form and substance to
Buyer.
11.8 Material Adverse Change. No material adverse change shall have
-----------------------
occurred. A material adverse change shall consist of a fifteen percent (15%) or
greater decline in the Stations' twelve (12) month trailing net revenue, without
trade, measured at the end of the month prior to Closing, as compared to the
twelve (12) month trailing net revenue, without trade, ending October 31, 1999.
11.9 Opinion of Counsel. Buyer shall have received a written opinion of
------------------
Seller's corporate counsel dated as of the Closing Date in form and substance
reasonably satisfactory to Buyer and an opinion of Seller's special
communications counsel substantially in the form of Exhibit 11.9 hereto.
ARTICLE 12
CONDITIONS OF CLOSING BY SELLER
-------------------------------
The obligations of Seller hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of all of the following
conditions:
12.1 Representations, Warranties and Covenants. All representations and
-----------------------------------------
warranties of Buyer made in this Agreement or in any Exhibit, Schedule or
document delivered pursuant hereto, shall be true and complete in all material
respects as of the date hereof and on and as of the Closing Date as if made on
and as of that date, except for changes expressly permitted or contemplated by
the terms of this Agreement and except those given as of a specified date.
12.2 Compliance with Agreement. All the terms, covenants, and conditions
-------------------------
to be complied with and performed by Buyer on or prior to the Closing Date shall
have been complied with or performed in all material respects.
44
12.2.1 Closing Certificate. Seller shall have received a
-------------------
certificate, dated as of the Closing Date, from the Buyer, executed by the
President of Buyer to the effect of Sections 12.1 and 12.2.
12.3 Governmental Approval.
---------------------
12.3.1 FCC. The FCC Consent shall have been issued by the FCC
---
and shall have become a Final Order.
12.3.2 [Intentionally Omitted]
---------------------
12.3.3 Other Consents. All other material authorizations,
--------------
consents, approvals, and clearances of federal, state or local Governmental
Entities required to permit the consummation of the transactions contemplated by
this Agreement shall have been obtained.
12.4 Adverse Proceedings. No injunction, decree or judgment of any court,
-------------------
agency or other governmental entities shall have been rendered against Buyer or
Seller which would render it unlawful, as of the Closing Date, to effect the
transactions contemplated by this Agreement in accordance with its terms.
12.5 Closing Documents. Buyer shall have executed and delivered or caused
-----------------
to be delivered to Seller, on the Closing Date, an assumption agreement with
respect to Assumed Liabilities reasonably satisfactory in form and substance to
Seller.
12.6 Opinion of Counsel. Seller shall have received a written opinion of
------------------
Buyer's counsel dated as of the Closing Date in form and substance reasonably
satisfactory to Seller.
ARTICLE 13
TRANSFER TAXES: FEES AND EXPENSES
---------------------------------
13.1 Expenses. Except as set forth in Sections 13.2 and, 13.3 below, each
--------
party hereto
45
shall be solely responsible for all costs and expense incurred by it in
connection with the negotiation, preparation and performance of and compliance
with the terms of this Agreement.
13.2 Transfer Taxes and Similar Charges. All costs of transferring the
----------------------------------
Station Assets in accordance with this Agreement, including recordation,
transfer and documentary taxes and fees, and any excise, sales or use taxes,
shall be borne equally by Buyer and Seller. Buyer and Seller shall, in good
faith, attempt to calculate all such taxes and fees prior to Closing and to
settle their respective obligations therefore on or before the Closing Date.
13.3 Governmental Filing or Grant Fees. Any filing or grant fees imposed
---------------------------------
by any governmental authority the consent of which is required for the
consummation of the transactions contemplated hereby, including but not limited
to, the FCC, the FTC, and the Department of Justice shall be borne equally by
Buyer and Seller.
ARTICLE 14
ESCROW DEPOSIT, LIQUIDATED DAMAGES, SPECIFIC PERFORMANCE
--------------------------------------------------------
14.1 Escrow Deposit. Within three (3) business days of the execution and
--------------
delivery of this Agreement by all Parties, Buyer will deposit with Media Venture
Partners ("Xxxxxxx Money Escrow Agent"), an irrevocable letter of credit in the
amount of Three Hundred Fifty Thousand Dollars ($350,000.00) (the "Xxxxxxx Money
Escrow Deposit"). The Xxxxxxx Money Escrow Deposit shall be held and disbursed
by Xxxxxxx Money Escrow Agent pursuant to the terms of the Xxxxxxx Money Escrow
Agreement, appended hereto as Exhibit 14.1 (the "Xxxxxxx Money Escrow
Agreement"), which Xxxxxxx Money Escrow Agreement has been entered into by the
Seller, Buyer and Xxxxxxx Money Escrow Agent. At closing, the Xxxxxxx Money
Escrow Deposit shall be returned to Buyer. If the Closing does not occur because
Buyer materially breached this Agreement or defaulted in the
46
performance of any of its material obligations hereunder and Seller has not
breached this Agreement or defaulted in the performance of any of its material
obligations hereunder, Buyer and Seller shall execute written instructions to
the Xxxxxxx Money Escrow Agent directing it to deliver the Xxxxxxx Money Escrow
Deposit to Seller as liquidated damages, as provided in Section 14.2. If the
Closing does not occur because Seller materially breached this Agreement or
defaulted in the performance of any of its material obligations hereunder and
Buyer has not breached this Agreement or defaulted in the performance of any of
its material obligations hereunder, Buyer and Seller shall execute written
instructions to the Xxxxxxx Money Escrow Agent directing it to deliver the
Xxxxxxx Money Escrow Deposit to Buyer and Buyer may seek specific performance of
this Agreement, as provided in Section 14.3
14.2 Liquidated Damages. If this Agreement is terminated by Seller
------------------
pursuant to Section 15.1 (ii)(b), the Parties agree and acknowledge that Seller
will suffer damages that are not practicable to ascertain. In such event, ALVLP
and Century shall waive all claims to damages from Buyer and Seller shall be
entitled to the sum of $350,000 as liquidated damages, payable solely and
exclusively through the Xxxxxxx Money Escrow Agreement. The Parties agree that
the foregoing liquidated damages are reasonable considering all the
circumstances existing as of the date hereof and constitute the Parties' good
faith estimate and allocation of the actual damages reasonably expected to
result from the termination of this Agreement pursuant to Section 15.1 (ii)(b).
Seller, ALVLP and Century agree that, to the fullest extent permitted by law,
the right of Seller to receive the Xxxxxxx Money Escrow Deposit shall be their
sole and exclusive remedy if the Closing does not occur with respect to any
damages whatsoever that Seller, ALVLP or Century may suffer or allege to suffer
as a result of any claim or cause of action asserted by them relating to or
arising from breaches of the
47
representations, warranties or covenants of Buyer contained in this Agreement
and to be made or performed at or prior to the Closing. Except for a termination
pursuant to Section 15.1 (ii)(b) (for which the sole recourse of Seller shall be
as provided in this Section 14.2) or pursuant to Section 15.1(i) (for which no
party shall have any liability to the other), the termination of this Agreement
shall not relieve the Parties for any liability or obligation relating to their
breaches of this Agreement occurring prior to such termination.
14.3 Specific Performance. In addition to any other remedies which Buyer
--------------------
may have at law or in equity against Seller, Seller, ALVLP and Century hereby
acknowledge that the Station Assets are unique, and that the harm to Buyer
resulting from a breach by Seller, ALVLP and/or Century of their obligations to
sell the Station Assets to Buyer cannot be adequately compensated by damages.
Accordingly, the Parties agree that Buyer shall have the right to seek to have
this Agreement specifically performed by Seller, ALVLP and Century. Seller,
ALVLP and Century shall waive the defense that there exists another adequate
remedy at law or equity. Notwithstanding anything in this Agreement to the
contrary, Buyer's sole remedy against ALVLP and Century under this Agreement
shall be the imposition of specific performance under this Agreement. Seller
shall have no right to damages, monetary or otherwise against ALVLP or Century
under this Agreement, whether or not a Closing occurs.
ARTICLE 15
TERMINATION RIGHTS
------------------
15.1 Termination. This Agreement may be terminated at any time prior to
-----------
Closing as follows:
(i) by the mutual consent of Buyer and Seller;
48
(ii) by written notice of (a) Buyer to Seller if Seller breaches in
any material respect any of its representations or warranties or defaults in any
material respect in the observance or in the due and timely performance of any
of its covenants or agreements herein contained and such breach or default shall
not be cured within thirty (30) days of the date of written notice of breach or
default served by Buyer or (b) Seller to the Buyer if Buyer breaches in any
material respect any of its representations or warranties or defaults in any
material respect in the observance or in the due and timely performance of any
of its covenants or agreements herein contained and such breach or default shall
not be cured within thirty (30) days of the written notice of breach or default
served by Seller; provided however, that with respect to breaches that cannot
reasonably be cured within such thirty (30) day period, the party in breach
shall have an additional sixty (60) days to cure (for a total of ninety (90)
days) so long the party in breach is diligently continuing to cure such breach;
and provided further that such notice and cure period shall not apply in the
case of Buyer's or Seller's failure to consummate the transactions in accordance
with the terms and times specified in Section 4.1 of this Agreement.
(iii) by Buyer or Seller by written notice to the other, if a court of
competent jurisdiction or other Governmental Entity shall have issued an order,
decree or ruling or taken any other action (which order, decree or ruling the
parties hereto shall use their best efforts to lift), in each case permanently
restraining, permanently enjoining or otherwise prohibiting the transactions
contemplated by this Agreement, and such order, decree, ruling or other action
shall have become final and nonappealable;
(iv) if, for any reason, the FCC designates the FCC Application for
hearing or denies or dismisses the FCC Application and the time for
reconsideration or court review under the
49
Communications Act with respect to such designation, denial or dismissal has
expired and there is not pending with respect thereto a timely filed petition
for reconsideration or request for review;
(v) by written notice of (a) Buyer to Seller if the FCC Consents
contain a condition that materially reduces the value of this transaction to
Buyer and the time for reconsideration or court review under the Communications
Act with respect to such condition(s) has expired without the filing with
respect thereto of a timely petition for reconsideration or request for review;
or (b) Seller to Buyer if the FCC Consent contains a condition that materially
reduces the value of this transaction to Seller and the time for reconsideration
or court review under the Communications Act with respect to such condition(s)
has expired without the filing with respect thereto of a timely petition for
reconsideration or request for review.
(vi) by written notice of Buyer to Seller, or by Seller to the Buyer,
if the Closing shall not have been consummated within nine months after
acceptance for filing of the FCC Applications.
(vii) Notwithstanding the foregoing, no party hereto may effect a
termination under this Section 15.1 if such party is in material default or
breach of this Agreement.
15.2 Limitation on Termination. Neither ALVLP nor Century shall have the
-------------------------
right to terminate this Agreement.
ARTICLE 16
16.1 Risk of Loss. The risk of loss or damage to the Station Assets shall
------------
be upon Seller at all times prior to the Closing Date. In the event of loss or
damage, Seller shall promptly notify Buyer thereof and if the lost or damaged
Station Assets are capable of being replaced or repaired for an aggregate amount
less than $25,000, then Seller shall, at its sole cost and expense, replace or
repair
50
such Station Assets prior to the Closing Date or deliver to Buyer at the Closing
an amount in cash equal to the cost of replacement or repair of such Station
Assets, as mutually agreed in good faith by Buyer and Seller. Notwithstanding
the foregoing, if the amount required to replace or repair such Station Assets
exceeds $25,000, but is less than $500,000, Seller may elect not to replace or
repair such Station Assets, provided, however, that in such event Buyer, at its
option, may elect to terminate this Agreement or agree to accept from Seller, at
the Closing, an amount in cash equal to the cost to replace or repair such
Station Assets, as mutually agreed in good faith by Buyer and Seller and waive
any default or breach with respect to the loss or damage. If the amount required
to replace or repair such Station Assets is $500,000 or more, either Seller or
Buyer may, at its option, terminate this Agreement or mutually agree on a
resolution that allows replacement of assets. Buyer may terminate this
Agreement, without any additional obligation to any of the parties, if any of
the Stations is off the air or operating at less than 90 percent (90%) of its
licensed power for three (3) or more consecutive days or five (5) or more days
in any thirty (30) day period. Either Buyer or Seller may extend the Closing
Date by up to sixty (60) days in order to allow Seller to complete any repair or
replacement, required or authorized by this Section.
ARTICLE 17
MISCELLANEOUS PROVISIONS
------------------------
17.1 Survival of Representations and Warranties. The representations and
------------------------------------------
warranties contained in this Agreement, and in any schedule, instrument or
certificate delivered pursuant hereto, shall survive the Closing until one (1)
year after the Closing Date.
17.2 Certain Interpretive Matters and Definitions. Unless the context
--------------------------------------------
otherwise requires,
51
(i) all references to Sections, Articles or Schedules are to Sections, Articles
or Schedules of or to this Agreement, (ii) each term defined in this Agreement
has the meaning assigned to it, (iii) each accounting term not otherwise defined
in this Agreement has the meaning assigned to it in accordance with generally
accepted accounting principles as in effect on the date hereof, (iv) "or" is
disinjunctive but not necessarily exclusive, and (v) words in the singular
include the plural and vice versa, and (vi) the term "Affiliate" has the meaning
given it in Rule 12b-2 of Regulation 12B under the Securities Exchange Act of
1934, as amended. All references to "$" or dollar amounts will be to lawful
currency of the United States of America.
17.3 Further Assurances. At and after the Closing, Seller shall from time
------------------
to time, at the request of and without further cost or expense to Buyer, execute
and deliver such other instruments of assignment, conveyance and transfer and
take such other actions as may reasonably be requested in order to more
effectively consummate the transactions contemplated hereby, and Buyer shall
from time to time, at the request of and without further cost or expense to
Seller, execute and deliver such other instruments and take such other actions
as may reasonably be requested in order to more effectively assume the Assumed
Liabilities.
17.4 Audited Financial Statements. At all times after the date hereof,
----------------------------
Seller shall, and shall cause its representatives (including its independent
public accountants) to, cooperate in all reasonable respects with the efforts of
Buyer and its independent auditors to prepare at Buyer's expense, such audited
and interim unaudited financial statements of the Stations as Buyer may require.
Seller shall execute and deliver to Buyer's independent accountants such
customary management representation letters as they may require as a condition
to their ability to sign an unqualified report upon the audited financial
statements of the Stations for the periods for which such financial statements
may be
52
required. Seller shall cause its independent public accountants to make
available to Buyer and its representatives all of their work papers related to
the financial statements or Tax Returns of Seller (to the extent they relate to
the Stations) and to provide Buyer's independent public accountants with full
access to those personnel who previously have been involved in the audit or
review of Seller's financial statements or Tax Returns.
17.5 Assignment. Neither this Agreement nor any of the rights, interests
-----------
or obligations hereunder shall be assigned by any of the parties hereto, whether
by operation of law or otherwise; provided, however, that without releasing
Buyer from any of its obligations or liabilities hereunder (i) nothing in this
Agreement shall limit Buyer's ability to assign this Agreement, the Station
Assets or the Station Licenses (including the right to acquire the Station
Licenses at the Closing) to any Affiliate of Buyer without the consent of
Seller; and (ii) nothing in this Agreement shall limit Buyer's ability to make a
collateral assignment of its rights under this Agreement to any institutional
lender that provides funds to Buyer without the consent of Seller. Seller shall
execute an acknowledgment of such assignment(s) and collateral assignments in
such forms reasonably acceptable to Seller; provided, however, that unless
written notice is given to Seller that any such assignment has been consummated
or any such collateral assignment has been foreclosed upon, Seller shall be
entitled to deal exclusively with Buyer as to any matters arising under this
Agreement or any of the other agreements delivered pursuant hereto. In the event
of such an assignment, the provisions of this Agreement shall inure to the
benefit of and be binding on Buyer's successors and assigns.
17.6 Amendments. No amendment, waiver of compliance with any provision
----------
or condition hereof or consent pursuant to this Agreement shall be effective
unless evidenced by an instrument in writing signed by the party against whom
enforcement of any waiver, amendment, change, extension
53
or discharge is sought.
17.7 Headings. The headings set forth in this Agreement are for convenience
--------
only and will not control or affect the meaning or construction of the
provisions of this Agreement.
17.8 Governing Law; The construction and performance of this Agreement
--------------
shall be governed by the laws of the State of Nevada without giving effect to
the choice of law provisions thereof.
17.9 Notices. Any notice, demand or request required or permitted to be
-------
given under the provisions of this Agreement shall be in writing and shall be
deemed to have been duly delivered and received on the date of personal
delivery; on the third day after deposit in the U.S. mail if mailed by
registered or certified mail, postage prepaid and return receipt requested; on
the day after delivery to a nationally recognized overnight courier service if
sent by an overnight delivery service for next morning delivery and shall be
addressed to the following addresses:
(a) In the case of Seller, to:
Xx. Xxxxx Xxxxxxxxxxxxxx
Salt Broadcasting LLC
00000 Xxx Xxxx Xxxxx
Xxxx, Xxxxxx 00000
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxx, Xxxxxx & Xxxxxx, PLCC
0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
(b) In the case of Buyer:
NextMedia Group, LLC
4600 S. Syracuse, 0/xx/ xxxxx
00
Xxxxxx, Xxxxxxxx 00000-0000
With a copy to:
Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx & Associates, P.A.
0 X.X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
17.10 [Intentionally Omitted]
---------------------
17.11 Schedules. The schedules and exhibits attached to this Agreement
---------
and the other documents delivered pursuant hereto are hereby made a part of this
Agreement as if set forth in full herein.
17.12 Entire Agreement. This Agreement contains the entire agreement
----------------
among the parties hereto with respect to its subject matter and supersedes all
negotiations, prior discussions, agreements, letters of intent, and
understandings, written or oral, relating to the subject matter of this
Agreement.
17.13 Severability. If any provision of this Agreement is held to be
------------
unenforceable, invalid, or void to any extent for any reason, that provision
shall remain in force and effect to the maximum extent allowable, and the
enforceability and validity of the remaining provisions of this Agreement shall
not be affected thereby.
17.14 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which will be deemed an original, but all of which
together shall constitute but one and the same instrument.
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56
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed and delivered as of the date first above written.
SALT BROADCASTING LLC
By: ______________________________
Name: Xxxxx Xxxxxxxxxxxxxx
Title: Managing Member
NEXTMEDIA GROUP, LLC
By: ______________________________
Name: Xxxxxxx Xxxxxxxxx
Title: Secretary
AMERICOM LAS VEGAS LIMITED PARTNERSHIP
(for purposes of Sections 1.1.11, 3.1, 3.2, 11.7,
14.2, 14.3 and 15.2 only)
By: ______________________________
Name: ______________________________
Title: ______________________________
CENTURY MEDIA PARTNERS
(for purposes of Sections 1.1.12, 3.1, 3.2, 11.7,
14.2, 14.3 and 15.2 only)
By: ______________________________
Name: ______________________________
Title: ______________________________
57
