ASSET PURCHASE AGREEMENT
ASSET
PURCHASE AGREEMENT,
made
and entered into this __ day of March, 2007 (the “Agreement”), by and between
Shamrock Broadcasting, Inc., P. O. Xxx 000, Xxxxxxxxx, XX 00000 (“Seller”) and
The Marketing Group, 0000 00xx
Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 or its assignee (“Buyer”).
WITNESSETH:
WHEREAS,
Seller
owns the assets used in the operation of radio stations WNLA FM 105.5 MHz and
WNLA AM 1380 kHz in Indianola, MS (the “Stations”) and are authorized to operate
the Stations pursuant to licenses issued by the Federal Communications
Commission (the “FCC”); and
WHEREAS,
Seller
desires to sell to Buyer, and Buyer desires to purchase from Seller,
substantially all of the assets used and/or useful in connection with the
operation of the Stations, all on the terms and subject to the conditions set
forth herein, including prior approval of the FCC.
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
I
PURCHASE
OF ASSETS
1.1 Transfer
of Assets.
On the Closing Date (as defined in Section 5.1 hereof), Seller
shall sell, assign, transfer and convey to Buyer or its designated assignee,
and
Buyer shall purchase and assume from Seller, substantially all of the assets,
properties, interests and rights of Seller of whatsoever kind and nature,
real,
personal, or mixed, tangible and intangible, owned or leased by Seller as
the
case may be, which are used and/or useful in connection with the operation
of
the Stations, as the same shall
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exist
on
the Closing Date, including but not limited to the following (but excluding
the
Excluded Assets specified in Section 1.3 hereof), all such assets being referred
to herein as the “Stations Assets.” The Stations assets include, without
limitation, the following:
1.1.1 All
licenses, permits and other authorizations issued by the FCC and any other
federal, state or local government authority (the “Stations Licenses”) to Seller
in connection with and necessary for the conduct of the business and the
operation of the Stations, together with renewals or modifications of such
Stations Licenses between the date hereof and the Closing Date, including but
not limited to those listed on Schedule 1.1.1 attached hereto;
1.1.2 All
equipment, machinery, office furniture and fixtures, office materials and
supplies, inventory, spare parts and other tangible personal property of every
kind and description, and Seller’s rights therein, of Seller with respect to the
Stations, together with any improvements or replacements thereof and additions
thereto, made between the date hereof and the Closing Date which Buyer has
agreed to assume in writing at Closing, including but not limited to those
listed on Schedule 1.1.2 hereto;
1.1.3 All
contracts, agreements and leases, written or oral, relating to the operation
of
the Stations which are listed in Schedule 1.1.3 hereto (the “Assumed
Contracts”), together with all contracts, agreements and leases entered into or
acquired by Seller between the date hereof and the Closing Date which Buyer
has
agreed to assume in writing at Closing;
1.1.4 All
of
Seller’s right, title and interest in and to the call letters “WNLA,”
trademarks, trade names, service marks, franchises, copyrights, including
registrations and applications for registration of any of them, jingles, logos
and slogans or licenses to use same (the “Intangible Personal Property”),
together with any associated goodwill and any additions thereto between the
date
hereof and the Closing Date, including but not limited to those described on
Schedule 1.1.4 attached hereto;
1.1.5 All
real
property, buildings, fixtures and other improvements thereon, leasehold
interests, easements, licenses, rights of access, rights of way, improvements
and other real property interests, which are held or owned by the Seller and
used and/or useful in the operation of the Stations as of the date
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hereof
and the Closing Date (the “Real Property”), as described in 1.1.5 attached
hereto;
1.1.6 All
books,
files, records and logs relating to the conduct of the Stations’ business and
the operation of the Stations (collectively the “Stations Records”). For three
years following Closing, Seller shall have reasonable access to such books,
files, records and logs for inspection and duplication at Seller’s expense
during normal business hours, and to the originals if required, for the purposes
of bookkeeping, tax return preparation and accounting procedures, and for such
other purposes as may be customary or reasonably necessary;
1.2 No
Liens. Subject
to Section 1.1.3 hereof, the Stations Assets shall be transferred to Buyer
free
and clear of all debts, security interests, mortgages, trusts, claims, pledges,
or other liens, liabilities and encumbrances whatsoever (collectively, the
"Liens").
1.3 Excluded
Assets. Notwithstanding
anything to the contrary contained herein, it is expressly understood and agreed
that the Stations Assets shall not include the following assets along with
all
rights, title and interest therein which shall be referred to as the "Excluded
Assets":
1.3.1
All
cash,
cash equivalents or similar type investments of Seller, such as certificates
of
deposit, Treasury bills and other marketable securities on hand and/or in banks
and accounts receivable; Seller will allow Buyer to collect the accounts
receivable for the Stations for a period of ninety (90) days; Buyer will provide
Seller with an accounting of collections and remit funds received every thirty
(30) days;
1.3.2
All
contracts that have terminated or expired prior to the Closing Date in the
ordinary course of business and as permitted hereunder;
1.3.3 All
other
contracts of Seller, including employment contracts, whether written or oral,
not assumed by Buyer pursuant to the terms of Section 2.1
hereof;
1.3.4 All
pension, profit sharing or cash or deferred (Section 401(k)) plans and trusts
and the assets thereof and any other employee benefit plan or arrangement and
the assets thereof, if any maintained by Seller; and
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1.3.5 All
contracts of insurance and all insurance proceeds or claims made by Seller
relating to property or equipment repaired, replaced or restored by Seller
prior
to the Closing Date.
ARTICLE
2
ASSUMPTION
OF OBLIGATIONS
2.1 Assumption
of Obligations. Subject
to the provisions of this Section 2.1, Section 2.2 and Section 3.4, on the
Closing Date, Buyer shall assume and undertake to pay, satisfy or discharge
the
liabilities, obligations and commitments of Seller arising or to be performed
on
or after the Closing Date under (i) the Assumed Contracts and (ii) any other
contracts entered into between the date hereof and the Closing Date which Buyer
may in its sole discretion expressly agree in writing to assume. All of the
foregoing liabilities and obligations shall be referred to herein collectively
as the "Assumed Liabilities."
2.2 Retained
Liabilities. Except
as
set forth in Section 2.1 hereof, Buyer expressly does not, and shall not, assume
or be deemed to assume any other liability, obligation, commitment, undertaking,
expense or agreement of Seller of any kind or nature, absolute or contingent,
known or unknown, and the execution and performance of this Agreement shall
not
render Buyer liable for any such liability, obligation, undertaking, expense
or
agreement. All of such liabilities and obligations shall be referred to herein
collectively as the "Retained Liabilities." Without limiting the generality
of
the foregoing, it is understood and agreed that Buyer is not agreeing to, and
shall not, assume any liability or obligation of Seller to Seller's employees
under any existing written or oral agreements with Seller, including any such
liability or obligation in respect of wages, salaries, bonuses, accrued vacation
or sick pay or any other matter other than liabilities and obligations arising
following the Closing.
ARTICLE
3
PURCHASE
PRICE
3.1 Purchase
Price. Subject
to certain adjustments pursuant to Section 3.2 below, the purchase price for
the
transfer of the
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Stations
Assets from Seller to Buyer shall be Three Hundred Thousand Dollars ($300,000)
(the "Purchase Price").
3.2 Payment
of Purchase Price. The
Purchase Price shall be paid as follows:
3.2.1 Pursuant
to the Letter of Intent dated January 17, 2007 between Seller and Buyer, Buyer
shall provide a Letter of Credit in the amount of Ten Thousand Dollars ($10,000)
from a bank of Buyer’s choosing (“Bank Agent”). The Letter of Credit shall be in
a form and substance acceptable to Seller. Upon execution of this Purchase
and
Sale Agreement, Buyer shall provide a Letter of Credit for the additional sum
of
Ten Thousand Dollars ($10,000) with the Bank Agent for this transaction.
3.2.2 At
Closing, Buyer shall pay to Seller the Purchase Price, as follows:
3.2.2.1 Three
Hundred Thousand Dollars ($300,000), by wire transfer of immediately available
funds, plus or minus any adjustments to be made pursuant to Section 3.5
hereof.
3.3 Letter
of Credit.
3.3.1 In
the
event that this Agreement is terminated by Seller prior to the Closing solely
because of Buyer’s refusal or inability to close, Seller, if not in material
default or breach of this Agreement, shall be entitled to draw on the Letter
of
Credit in accordance with its terms as liquidated damages and not as a penalty.
Buyer and Seller each acknowledge and agree that the liquidated damage amount
is
Seller's sole remedy for Buyer's breach hereof and that such amount is
reasonable in light of the anticipated harm which would be caused by Buyer's
breach of this Agreement, the difficulty of proof of loss, the inconvenience
and
nonfeasability of otherwise obtaining an adequate remedy, and the value of
the
transaction to be consummated hereunder.
3.3.2
In
the
event that Buyer and Seller consummate the transaction contemplated herein
or in
the event of a termination pursuant to Section 15 hereof, Seller shall not
be
entitled to draw down against the Letter of Credit and shall provide such notice
to the Bank Agent terminating the Letter of Credit.
3.4 Allocation
of Purchase Price. The
Purchase Price shall be allocated in accordance with Exhibit A
hereto.
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3.5 Proration
of Income and Expenses. Except
as
otherwise provided herein, on the Closing Date, there shall be prorated all
payments of rent, utilities, insurance, and all operating expenses of the
Stations, including but not limited to salaries, taxes, negative barter
balances, music and license fees, and other charges, so that Seller shall
be
responsible for all expenses incurred prior to the Closing Date and Buyer
for
all expenses incurred thereafter. In this regard, Seller shall pay the costs
of
all barter obligations, if any, engineering studies, ownership reports,
employment reports, or other reports or FCC filings required by virtue of
Seller's ownership of the Stations prior to the Closing Date, and Buyer shall
pay the costs of all barter obligations, if any, engineering studies, ownership
reports, employment reports, or other reports or FCC filings required by
virtue
of Buyer's ownership of the Stations after the Closing Date. Each party,
however, shall be responsible for its own expenses in connection with the
transaction contemplated by this Agreement, including, without limitation,
the
preparation and prosecution of the Assignment Application (as defined herein)
to
be filed with the FCC pursuant to Section 4.2 of this Agreement; except that
Seller and Buyer shall share equally the FCC filing fee for the Assignment
Application. Except as expressly provided in this Agreement, Buyer shall
not be
liable for any other expenses in connection with the transactions contemplated
by this Agreement.
ARTICLE
4
GOVERNMENTAL
CONSENTS
4.1 FCC
Consent.
It is
specifically understood and agreed by Buyer and Seller that the Closing and
the
assignment of the FCC Licenses and the transfer of the Stations Assets is
expressly conditioned on and is subject to the prior consent and approval of
the
FCC ("FCC Consent") without the imposition of any conditions on the transfer
of
the FCC Licenses which are materially adverse to Buyer or Seller.
4.2 FCC
Application.
Within
ten business (10) days after execution of this Agreement, Seller and Buyer
shall
file with the FCC an application for assignment of the FCC Licenses (the
"Assignment Application") from Seller to Buyer. Seller and Buyer shall
thereafter prosecute the Assignment Application with all reasonable diligence
and otherwise use their best efforts to
obtain
the grant of the Assignment Application as expeditiously as
6
practicable.
If the FCC Consent imposes any condition on either party hereto, such party
shall use its best efforts to comply with such condition; provided, however,
that neither party shall be required hereunder to comply with any condition
that
would have a material adverse effect upon it. If reconsideration or judicial
review is sought with respect to the FCC Consent, the party affected shall
vigorously oppose such efforts for reconsideration or judicial review; provided,
however, that nothing in this Section 4.2 shall be construed to limit either
party's right to terminate this Agreement pursuant to Article 15
hereof.
ARTICLE
5
CLOSING
5.1 Closing.
The
closing of the transactions contemplated herein (the "Closing") shall occur
within ten (10) business days after the date on which the FCC Consent shall
have
given, pursuant to delegated authority (the "Closing Date"); provided, however,
that in the event that informal objections or petitions to deny are filed
against the Assignment Application, the Closing shall, at Buyer’s option, occur
within ten (10) business days after the date on which the FCC Consent shall
have
become a Final Order. A “Final Order” means an action of the FCC approving the
Assignment Application, which is no longer subject to reconsideration or review
by the FCC or any court or other governmental authority. The Closing shall
be
held at the offices of the Stations, or at such place as the parties hereto
may
agree.
ARTICLE
6
REPRESENTATIONS
AND WARRANTIES OF BUYER
Buyer
hereby
makes the following representations and warranties to Seller, all of which
have
been relied upon by Seller in entering into this Agreement and, except as
specifically otherwise provided, all of which shall be true and correct on
the
Closing Date:
6.1 Organization
and Standing. Buyer
is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Tennessee. Buyer’s expected assignee, Debut Broadcasting,
Inc. is a corporation duly organized, validly
7
existing
and in good standing under the laws of the State of Delaware.
6.2 Authorization
and Binding Obligation.
Buyer’s
execution, delivery and performance of this Agreement and the transactions
contemplated hereby have been duly and validly authorized by all necessary
action on its part and upon the obtaining of all necessary approvals of the
transactions contemplated by this Agreement, this Agreement will constitute,
and
the other agreements to be executed in connection herewith will constitute,
the
valid and binding obligation of Buyer enforceable in accordance with their
terms.
6.3 Absence
of Conflicting Agreement.
The
execution, delivery and performance of this Agreement by Buyer: (a) will not
conflict with, result in a breach of, or constitute a violation of or default
under, the provisions of Buyer’s articles of incorporation or by-laws; and (b)
will not, either alone or with the giving of notice or the passage of time,
or
both, conflict with, constitute grounds for termination of or result in a breach
of the terms, conditions or provisions of, or constitute a default under, any
agreement or instrument to which Buyer is subject.
6.4 FCC
Qualifications.
To the
best of Buyer’s knowledge, it is qualified under the Communications Act of 1934,
as amended, and under the rules and regulations of the FCC, to become the holder
of the Stations Licenses.
ARTICLE
7
REPRESENTATIONS
AND WARRANTIES OF SELLER
Seller
hereby
makes the following representations and warranties to Buyer, all of which have
been relied upon by Buyer in entering into this Agreement and, except as
specifically otherwise provided, all of which shall be true and correct on
the
Closing Date:
7.1 Organization
and Standing.
Seller
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Mississippi. Seller has the power and authority to own,
lease and operate the Stations Assets and to carry on the business of the
Stations as proposed to be conducted by Seller between the date hereof and
the
Closing Date.
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7.2 Authorization
and Binding Obligation.
Seller
has the power and authority to enter into and perform this Agreement and
the
transactions contemplated hereby, and Seller's execution, delivery and
performance of this Agreement, and the transactions contemplated hereby have
been duly and validly authorized by all necessary action on its part. This
Agreement has been duly executed and delivered by Seller and this Agreement
constitutes, and the agreements to be executed in connection herewith will
constitute the valid and binding obligation of Seller enforceable in accordance
with their terms.
7.3 Absence
of Conflicting Agreements. The
execution, delivery and performance of this Agreement by Seller: (a) will not
conflict with, result in a breach of, or constitute a violation of or a default
under, the provisions of Seller’s articles of incorporation or by-law; (b) will
not conflict with, result in a breach of, or constitute a violation of or
default under, any applicable law, judgment, order, injunction, decree, rule,
regulation or ruling of any governmental authority to which Seller is a party
or
by which it or the Stations Assets are bound; (c) will not, either alone or
with
the giving of notice or the passage of time, or both, conflict with, constitute
grounds for termination of or result in a breach of the terms, conditions or
provisions of, or constitute a default under, any contract, agreement,
instrument, license or permit to which Seller or the Stations Assets is now
subject; and (d) will not result in the creation of any lien, charge or
encumbrance on any of the Stations Assets.
7.4 Government
Authorizations. Schedule
1.1.1 hereto contains a true and complete list of the Stations Licenses, which
are required for the lawful conduct of the business and operation of the
Stations in the manner and to the full extent they are proposed to be conducted
by Buyer. Seller is the authorized legal holder of the Stations Licenses listed
in Schedule 1.1.1. The Stations Licenses listed in Schedule 1.1.1 are in good
standing, in full force and effect and sufficient for the operation of the
Stations as presently operated by Buyer. The operation of the Stations is in
accordance with the Stations Licenses and the underlying construction permits.
No proceedings are pending or threatened, nor, to Seller's knowledge, do any
facts exist which may result in the revocation, modification, non-renewal or
suspension of any of the Stations Licenses, the issuance of any cease and desist
order, the imposition of any administrative actions by the FCC with respect
to
the FCC Licenses or which may affect Buyer's ability to operate the Stations
in
accordance with the Stations Licenses and the FCC's rules.
9
7.5 Tangible
Personal Property. Schedule
1.1.2 hereto contains a list of all material tangible personal property owned,
leased or held by Seller and used and/or useful in the conduct of the business
and operation of the Stations. The Tangible Personal Property which is leased
is
identified as such on Schedule 1.1.2. The Tangible Personal Property is all
of
the tangible personal property necessary to operate the Stations in the manner
in which it is presently operated. Except for the Tangible Personal Property
leased by Seller, Seller owns and has, and will have on the Closing Date,
good
and marketable title to all of the Tangible Personal Property (and to all
other
tangible personal property and assets to be transferred to Buyer hereunder),
and
none of such property at the Closing will be subject to any security interest,
mortgage, pledge, or other lien or encumbrance. To Seller's knowledge, all
of
the items of the Tangible Personal Property are in good repair and normal
operating condition (ordinary wear and tear excepted) and are available for
immediate use in the conduct of the business and operation of the Stations
in
its customary manner and in accordance with its licenses and the rules,
regulations and policies of the Commission and all other governmental
authorities having jurisdiction thereof.
7.6 Real
Property. Schedule
1.1.5 hereto contains a list of all real property owned, leased or held by
Seller and used and/or useful in the conduct of the business and operation
of
the Stations. The Real Property is all of the real property necessary to
operate
the Stations in the manner in which it is presently authorized to operate.
Seller owns and has, and will have on the Closing Date, good and marketable
title to all the Real Property and none of such property at the Closing will
be
subject to any security interest, mortgage, pledge, or other lien or
encumbrance. None of the Real Property is subject to any contract, option
or
commitment for sale or lease to any party other than Buyer. To the best of
Seller’s knowledge, after due inquiry, the Real Property and the present use
thereof conforms with all restrictive covenants and with all zoning, building
and other laws and regulations of all governmental authorities having
jurisdiction thereof. The buildings, towers and appurtenances, and other
fixtures used in the operation of the Stations are free of structural defects,
are suitable for their intended use, are in a good state of maintenance and
repair, are contained entirely within the bounds of the Real Property and
do not
encroach upon any property, the title or use of which will not be conveyed
to
Buyer hereunder. All utilities
10
necessary
for Buyer’s use of the Real Property are installed and in working order and are
subject to valid easements. No condemnation proceedings have been instituted
or
threatened against the Real Property. Within ten (10) days of the execution
of
this Agreement, Seller will deliver to Buyer a preliminary report of a title
insurance company reasonably acceptable to Buyer to insure the title to the
Real
Property owned by the Seller without any liens or encumbrances, other than
current taxes or assessments, such title to be conveyed to Buyer at Closing.
Title examination and insurance shall be at Buyer’s expense.
7.7 Contracts.
Schedule
1.1.3 hereto contains a list of all of the agreements, leases and other
contracts to which the Stations and Seller is a party or by which, as of
the
date hereof, the Stations and Seller may be bound or obligated in any way
or
which are required to operate the Stations in the manner in which it is now
being operated (the "Contracts"). All of the Contracts are valid, binding
and
enforceable by Seller in accordance with their respective terms. Seller is
not
in material breach or default thereof, there is no claim of breach or default,
and Seller has no knowledge of any act or omission which has occurred or
which
has been threatened which could result in a breach or default thereof. Those
Assumed Contracts requiring the consent of a third party to assignment which
Seller and Buyer agree are critical to the consummation of the transactions
contemplated hereby are identified as "Material Contracts" and are so marked
on
Schedule 1.1.3. Notwithstanding the foregoing, if it is discovered before
Closing that Seller failed to list a contract in Schedule 1.1.3 other than
a
Material Contract which was required to be listed, then Buyer may elect in
its
sole discretion to accept or reject such contract.
7.8 Intangible
Personal Property. Schedule
1.1.4 hereto contains a list of all intangible personal property applied for,
issued to or owned by the Seller or under which Seller is a licensee and used
in
the conduct of the business and operation of the Stations referred to in Section
1.1.4 (but excluding those included in the Excluded Assets and referred to
in
Section 1.3). The Intangible Personal Property is all of the intangible personal
property used in the operation of the Stations in the manner conducted by
Seller. Seller has the right to use all of such property and such use does
not
infringe on or violate any other party's rights.
7.9 Insurance.
All of
the assets to be sold to Buyer which are of an insurable character is insured
by
financially sound and reputable insurance companies against loss or damage
by
fire and
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other
risks to the extent and in the manner customary for properties and assets of
that nature. All such insurances policies are listed in Exhibit B hereto and
are
in current force and effect and full coverage thereunder shall remain in effect
through the Closing.
7.10 Taxes.
Seller has
filed
all federal, state, local and foreign income, franchise, sales, use, property,
excise, payroll and other tax returns required by law and has paid in full
all
taxes, estimated taxes, interest, assessments, and penalties due and payable.
All returns and forms which have been filed have been true and correct in all
material respects and no tax or other payment in a material amount other than
as
shown on such returns and forms are required to be paid and have been paid
by
Seller.
7.11 Environmental.
To the
best
of Seller's knowledge, (i) Seller has not unlawfully disposed of any hazardous
waste or hazardous substance including Polychlorinated Biphenyl’s ("PCBs") at
the Real
Property of
the
Stations, (ii) the technical equipment included in the Stations Assets does
not
contain any PCBs, (iii) there are no underground tanks at the Real Property
of
the Stations and (iv) there is no asbestos insulation or other
asbestos-containing materials at the Real Property of the Stations. As used
herein, the term "hazardous wastes' shall mean as defined in the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et
seq.
as
amended, and in the equivalent state statute under Mississippi law. Any
environmental studies conducted shall be at Buyer’s expense.
7.12 Employee
and Labor Relations.
7.12.1 Seller
is
not a party to any contract with any labor organization, nor has Seller agreed
to recognize any union or other collective bargaining unit, nor has any union
or
other collective bargaining unit been certified as representing any of Seller's
employees. Seller has no knowledge of any organizational effort currently being
made or threatened by or on behalf of any labor union with respect to employees
of Seller.
7.12.2 Seller
has complied in all material respects with all applicable laws, rules and
regulations relating to the employment of labor, including those relating to
wages, hours, collective bargaining, unemployment insurance, workers'
compensation and payment and withholding of taxes in connection with the
operation of the Stations.
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7.12.3 Seller
has not promised to any employee of the Stations that Buyer will be hiring
any
such employee or otherwise made any offer of employment to any employee of
the
Stations on behalf of Buyer. All employees of the Stations shall be terminable,
without liability to Buyer, on and as of the Closing Date. Buyer will have
no
liability to any present or past employee of the Stations for retirement,
pension, bonus, termination, vacation, or other pay, or for hospitalization,
major medical, life or other insurance or other employee
benefits.
7.13
Litigation.
To
the
best of Seller’s knowledge, there is no litigation or proceeding or
investigation pending or threatened against Seller or the Stations in any
federal, state or local court, or before any administrative agency or arbitrator
(including, without limitation, any proceeding which seeks the forfeiture of,
or
opposes the renewal of, any of the Stations Licenses), or before any other
tribunal duly authorized to resolve disputes, or which seeks to enjoin or
prohibit, or otherwise questions the validity of, any action taken or to be
taken pursuant to or in connection with this Agreement.
7.14 Compliance
with Law. The
operation of the Stations and all of the Stations Assets are in compliance
in
all material respects with all applicable federal, state and local laws,
ordinances and regulations, including the Communications Act of 1934, as amended
and all rules and regulations issued thereunder. Without limiting the generality
of the foregoing, Seller has timely filed all FCC reports and other documents
required to be filed by any governmental authority with respect to the Stations
and Seller has maintained its local public inspection file in full compliance
with FCC requirements.
7.15 Shareholders.
Xxxxxx
X. Xxxxxx, is the only shareholder of Seller.
7.16 Accuracy
of Information.
No
representation or warranty made by Seller hereunder or any information furnished
or to be furnished to Buyer or any principal or agent of Buyer in connection
with the transaction contemplated herein contains or will contain any untrue
statement of material fact or omits or will omit to state a material fact
necessary to make the information herein not misleading. Notwithstanding the
generality of the foregoing, all financial information given to Buyer fairly
reflects the condition of Seller as of the date hereof and fairly presents
the
results of operation of the Stations for the periods reflected therein, and
since the date of the most recent financial statement given to
13
Buyer
there have been no material adverse changes in the financial position of the
Stations.
ARTICLE
8
COVENANTS
OF SELLER
8.1 Affirmative
Covenants. Seller
covenants and agrees with respect to the Stations that, between the date hereof
and the Closing Date, except as expressly permitted by this Agreement or with
the prior written consent of Buyer, it shall act in accordance with the
following:
8.1.1 Seller
shall conduct the business and operation of the Stations in the ordinary and
prudent course of business and with the intent of preserving the ongoing
operations and assets, listeners, advertisers and business of the
Stations.
8.1.2 Seller
shall operate the Stations in material accordance with FCC rules and regulations
and the Stations Licenses and with all other laws, regulations, rules and orders
and remove and assume all responsibility and costs for removing any and all
violations thereof, including the payment of any fines assessed or other
sanctions that may be imposed therefor.
8.1.3 Seller
shall provide Buyer prompt written notice of any change in any of the
information contained in the representations and warranties made in Article
7
hereof or any Schedules referred to herein or attached hereto.
8.1.4 Seller
shall give prompt notice to Buyer of any unusual or material developments with
respect to the business or operation of the Stations.
8.1.5 Seller
shall give or cause the Stations to give Buyer and Buyer's counsel, accountants,
engineers and other representatives, at Buyer's reasonable request, and as
authorized by the management of Seller, full and reasonable access during normal
business hours to all of Seller's personnel, properties, books, contracts,
reports and records including financial information and tax returns relating
to
the Stations, to all buildings and equipment relating to the Stations, and
to
the Stations’ employees in order that Buyer may have full opportunity to make
such investigation as it desires of the affairs of the
14
Stations
and to 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.
8.1.6 Seller
shall perform all of the Contracts according to their respective terms and,
if
necessary, renew the same; provided, however, that, at Buyer's request, Seller
will give protective notices of cancellation with respect to the Contracts
which
Buyer is not to assume.
8.1.7 Seller
shall maintain the Tangible Personal Property in its present condition, subject
to reasonable wear and tear and to dispositions in the normal course of
business, and keep in effect all current insurance policies with respect
thereto, and restore, repair or replace any lost or substantially damaged item
of Tangible Personal Property with an item of equivalent quality and value.
8.2 Negative
Covenants. Seller
covenants and agrees with respect to the Stations that between the date hereof
and the Closing Date, except as expressly permitted by this Agreement or with
the prior written consent of Buyer, it shall act in accordance with the
following:
8.2.1 Seller
shall not cause or permit by any act, or failure to act, any of the Stations
Licenses to expire, be surrendered, adversely modified, or otherwise terminated,
or the FCC to institute any proceedings for the suspension, revocation or
adverse modification of any of the Stations Licenses.
8.2.2 Seller
shall not create or permit any Lien affecting the Stations Assets.
8.2.3 Seller
shall not: (i) enter into any commitment for capital expenditures for which
Buyer would be liable after the Closing Date; (ii) enter into any collective
bargaining agreement or, through negotiation or otherwise, make any commitment
or incur any liability to any labor organization relating to any Stations
employee (to the extent the foregoing does not violate applicable law); or
(iii)
enter into any contract or commitment in relation to the Stations’ business or
employees to which Buyer will be bound or which will adversely affect Buyer's
operation of the Stations following the Closing other than agreements cancelable
without penalty prior to the Closing Date.
15
8.2.4 Seller
shall not, other than in the ordinary course of business, sell or dispose of
or
commit to sell or dispose of any of the Stations Assets unless, in the case
of
the Tangible Personal Property, the same are replaced by assets of equal quality
and usefulness.
8.2.5 Seller
shall not increase the salary, benefits or other compensation payable to any
Stations employee, except to the extent consistent with existing practice.
Seller shall immediately notify Buyer upon taking any such action.
8.3. Non-compete. At
Closing, Seller and Seller’s principals shall enter into a non-compete agreement
in the form attached hereto as Exhibit C, which shall bar Seller and its
Principals from having an ownership interest or investment in, or serving as
an
officer, director or employee of, or serving as a consultant or advisor to,
any
radio broadcast business whose city of license, studio or transmitter site
it
within one hundred (100) miles of Greenville, Mississippi, for a period of
one
(1) year from the Closing Date. Said agreement shall further bar Seller and
Seller’s principals for a period of one (1) year after Closing from hiring or
soliciting to hire any person employed by Buyer and whose duties relate
substantially to the Stations. The portion of the purchase price allocated
to
the foregoing non-compete agreement shall be in accordance with Exhibit A
hereto.
ARTICLE
9
JOINT
COVENANTS
Buyer
and
Seller covenant and agree that between the date hereof and the Closing Date,
they shall act in accordance with the following:
9.1 Conditions.
If
any
event should occur, either within or without the control of any party hereto,
which would prevent fulfillment of the conditions upon the obligations of any
party hereto to consummate the transactions contemplated by this Agreement,
the
parties hereto shall use their best efforts to cure the event as expeditiously
as possible.
9.2 Confidentiality.
Buyer
and
Seller shall each keep confidential all information obtained by it with respect
to the other in connection with this Agreement and the negotiations
16
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
the
other, without retaining a copy thereof, any schedules, documents or other
written information obtained from the other in connection with this Agreement
and the transactions contemplated hereby. Notwithstanding the foregoing, neither
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, (iii)
is
required to be disclosed pursuant to an order or request of a judicial or
governmental authority (provided the disclosing party is given reasonable prior
notice), or (iv) is developed by the receiving party independently of the
disclosure by the disclosing party.
9.3 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; provided, however, that no party shall be required to take
any action which would have a material adverse effect upon it. Prior to the
Closing Date, Buyer shall not directly or indirectly control, supervise, or
direct, or attempt to control, supervise, or direct, the operations of the
Stations.
ARTICLE
10
CONDITIONS
OF CLOSING BY BUYER
The
performance of the obligations of Buyer hereunder are subject to the
satisfaction of each of the following express conditions precedent, provided
that Buyer may, at its election, waive any of such conditions at Closing,
notwithstanding that such condition is not fulfilled on the Closing
Date:
10.1 Representations,
Warranties and Covenants.
10.1.1 All
representations and warranties of Seller contained herein or in any Schedule
or
document delivered pursuant hereto, shall be true and complete in all material
respects as of
17
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.
10.1.2 All
of
the terms, covenants and conditions to be complied with and performed by
Seller
on or prior to Closing Date shall have been complied with or performed in
all
material respect
10.2 Governmental
Consents. The
conditions specified in Sections 4.1 and 4.2 of this Agreement shall have
been
satisfied.
10.3
Governmental
Authorizations. Seller
shall be the holder of the Stations Licenses and all other material licenses,
permits and other authorizations listed in Schedule 1.1.1, and there shall
not
have been any modification of any of such licenses, permits and other
authorizations which has a material adverse effect on the Stations or the
conduct of its business and operation. No proceeding shall be pending which
seeks or the effect of which reasonably could be to revoke, cancel, fail to
renew, suspend or modify materially and adversely the Stations adverse effect
on
the Stations or the conduct of its business and operation. No proceeding shall
be pending which seeks or the effect or which reasonably could be to revoke,
cancel, fail to renew, suspend or modify materially and adversely the Stations
Licenses or any other material licenses, permits or other authorizations of
the
Stations.
10.4
Adverse
Proceedings.
No
suit, action, claim or governmental proceeding shall be pending against, and
no
order, decree or judgment of any court, agency or other governmental authority
shall have been rendered against, any party hereto which would render it
unlawful, as of the Closing Date, to effect the transactions contemplated by
this Agreement in accordance with its terms.
10.5
Third-Party
Consents.
Seller
shall have obtained and shall have delivered to Buyer all third-party consents
to the Material Contracts.
10.6
Closing
Deliveries.
Seller
shall have delivered or caused to be delivered to Buyer, on the Closing Date,
each of the documents required to be delivered pursuant to Article
13.
10.7
No
Material Adverse Change.
Since
the date of this Agreement, there shall not have occurred, whether or not within
Seller’s control, any material adverse change in the Assets.
18
10.8
Liens.
The
Stations Assets shall be free and clear of all Liens.
ARTICLE
11
CONDITIONS
OF CLOSING BY SELLER
The
performance of the obligations of Seller hereunder are subject to the
satisfaction of each of the following express conditions precedent, provided
that Seller may, at its election, waive any of such conditions at Closing,
notwithstanding that such condition is not fulfilled on the Closing
Date:
11.1 Representations,
Warranties and Covenants.
11.1.1 All
representations and warranties of Buyer made in this Agreement or in any
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 if made on and as of that date, except for changes expressly
permitted or contemplated by the terms of this Agreement.
11.1.2 All
of
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.
11.2
Governmental
Consents. The
conditions specified in Sections 4.1 and 4.2 of this Agreement shall have been
satisfied.
11.3
Adverse
Proceedings. No
suit,
action, claim or governmental proceeding shall be pending against, and no other,
decree or judgment of any court, agency or other governmental authority shall
have been rendered against any party hereto which would render it unlawful,
as
of the Closing Date, to effect the transactions contemplated by this Agreement
in accordance with its terms.
11.4 Closing
Deliveries. Buyer
shall have delivered or caused to be delivered to Seller, on the Closing Date,
the Purchase Price and each of the documents required to be delivered pursuant
to Article 13.
19
ARTICLE
12
TRANSFER
TAXES; FEES AND EXPENSES
12.1 Expenses.
Except
as
set forth in Sections 3.5 and 12.2 hereof, each party hereto shall be solely
responsible for all costs and expenses incurred by it in connection with the
negotiation, preparation and performance of and compliance with the terms of
this Agreement.
12.2 Transfer
Taxes: Governmental Filing or Grant Fees. All
costs
of transferring the Stations Assets in accordance with this Agreement, including
recordation, transfer and documentary taxes and fees, and any excise, sales
or
use taxes shall be borne by Seller.
ARTICLE
13
CLOSING
DELIVERIES
13.1
Seller's
Deliveries. At
the
Closing, Seller shall deliver or cause to be delivered to Buyer the
following:
13.1.1 Bills
of
Sale and other instruments of assignment and transfer, all in a form normal
and
customary in the State of Tennessee and satisfactory to Buyer’s counsel, as
shall be effective to vest in Buyer or its permitted assignees, good and
marketable title in and to the Stations Assets transferred pursuant to this
Agreement in accordance with the terms of this Agreement;
13.1.2 A
warranty deed conveying title to the Real Property to Buyer;
13.1.3 A
certificate, dated the Closing Date, and substantially in the form of Exhibit
D,
of the Secretary of Seller certifying as to the resolutions of the Board of
Directors of Seller approving the execution and delivery of this Agreement
and
each of the other documents and agreements referred to herein and authorizing
the consummation of the transactions contemplated hereby and
thereby;
13.1.4 The
Stations Records, including the originals or copies of all program, operations,
transmissions, or maintenance logs and all other records required to be
maintained by the FCC
20
with
respect to the Stations, including the Stations’ public file, shall be left at
the Stations and thereby delivered to Buyer; and
13.1.5 Such
additional information and materials as Buyer shall have reasonably
requested.
13.2 Buyer's
Deliveries. At
the
Closing, Buyer shall deliver or cause to be delivered to Seller the
following:
13.2.1 The
Purchase Price as described in Section 3 hereof;
13.2.2 A
certificate, dated the Closing Date, and substantially in the form of Exhibit
E,
of the Secretary of Buyer certifying as to the resolutions of the Board of
Directors of Buyer approving the execution and delivery of this Agreement and
each of the other documents and agreements referred to herein and authorizing
the consummation of the transactions contemplated hereby and
thereby;
13.2.3 Such
additional information and materials as Seller shall have reasonably
requested.
ARTICLE
14
INDEMNIFICATION
14.1 Seller's
Indemnities. Seller
hereby agrees to indemnify, defend and hold harmless Buyer and its assignee
with
respect to any and all demands, claims, actions, suits, proceedings,
assessments, judgments, costs, losses, damages, liabilities and expenses
(including, without limitation, interest, penalties, court costs and reasonable
attorneys' fees) ("Damages") asserted against, resulting from, imposed upon
or
incurred by Buyer directly or indirectly relating to or arising out
of:
14.1.1 The
breach by Seller of any of its representations or warranties, or failure by
Seller to perform any of its covenants, conditions or agreements set forth
in
this Agreement;
14.1.2 The
Retained Liabilities;
21
14.1.3 Any
and
all claims, liabilities or obligations of any nature, absolute or contingent,
relating to the business and operation of the Stations prior to the Closing
Date;
14.1.4 Any
failure to comply with any “bulk sales” laws applicable to the transactions
contemplated hereby;
14.1.5 A
claim
by any person or entity based on any arrangement or agreement to pay a
commission, finder's fee or similar payment in connection with this Agreement
made or alleged to have been made by Seller.
14.2 Buyer's
Indemnities. Buyer hereby
agrees to indemnify, defend and hold harmless Seller with respect to any and
all
Damages asserted against, resulting from, imposed upon or incurred by Seller
directly or indirectly relating to or arising out of:
14.2.1 The
breach by Buyer of any of its representations, warranties, or failure by Buyer
to perform any of its covenants, conditions or agreements set forth in this
Agreement;
14.2.2 The
Assumed Liabilities;
14.2.3 Any
and
all claims, liabilities or obligations of any nature, absolute or contingent,
relating to the business and operation of the Stations as conducted by Buyer
on
and after the Closing Date; and
14.2.4 Subject
to Section 16.14 below, a claim by any person or entity based on any arrangement
or agreement to pay a commission, finder's fee or similar payment in connection
with this Agreement made or alleged to have been made by Buyer.
14.3 Survival
of Representations and Warranties. The
representations and warranties contained herein shall be deemed and construed
to
be continuous and survive the Closing for a period of three (3) years following
the Closing Date.
14.4 Procedures.
14.4.1 Promptly
after the receipt by either party (the "Indemnified Party") of notice of (a)
any
claim or (b) the commencement of any action or proceeding which may entitle
such
party to indemnification under this Section, such party shall give the other
party (the "Indemnifying Party) written notice of such
22
claim
or
the commencement of such action or proceeding and shall permit the Indemnifying
Party to assume the defense of any such claim or any litigation resulting
from
such claim. The failure to give the Indemnifying Party timely notice under
this
Section 14.4.1 shall not preclude the Indemnified Party from seeking
indemnification from the Indemnifying Party unless such failure has materially
prejudiced the Indemnifying Party's ability to defend the claim or
litigation.
14.4.2 If
the
Indemnifying Party assumes the defense of any such claim or litigation resulting
therefrom with counsel reasonably acceptable to the Indemnified Party, the
obligations of the Indemnifying Party as to such claim shall be limited to
taking all steps necessary in the defense or settlement of such claim or
litigation resulting therefrom and to holding the Indemnified Party harmless
from and against any losses, damages and liabilities caused by or arising out
of
any settlement approved by the Indemnifying Party or any judgment in connection
with such claim or litigation resulting therefrom; however, the Indemnified
Party may participate, at its expense, in the defense of such claim or
litigation provided that the Indemnifying Party shall direct and control the
defense of such claim or litigation. The Indemnified Party shall cooperate
and
make available all books and records reasonably necessary and useful in
connection with the defense. The Indemnifying Party shall not, in the defense
of
such claim or any litigation resulting therefrom, consent to entry of any
judgment, except with the written consent of the Indemnified Party, or enter
into any settlement, except with the written consent of the Indemnified Party,
which does not include as an unconditional term thereof the giving by the
claimant or the plaintiff to the Indemnified Party of a release from all
liability in respect of such claim or litigation.
14.4.3 If
the
Indemnifying Party shall not assume the defense of any such claim or litigation
resulting therefrom, the Indemnified Party may, but shall have no obligation
to,
defend against such claim or litigation in such manner as it may deem
appropriate, and the Indemnified Party may compromise or settle such claim
or
litigation without the Indemnifying Party's consent.
14.5 Assignment
of Claims. In
the
event that any of the Damages for which an Indemnifying Party is responsible
or
allegedly responsible hereunder are recoverable or potentially recoverable
against any third party at the time when payment is due under this Article
14,
then the Indemnified Party shall assign any and all rights that it may have
that
are related in any fashion to the
23
Damages
or the facts or circumstances giving rise thereto to the Indemnifying Party
as a
condition to any payment due under this Article 14, or, if such rights are
not
assignable under applicable law or otherwise, the Indemnified Party hereunder
shall attempt in good faith to collect any and all damages and losses on account
thereof from such third party for the benefit of, and at the expense and
direction of, the Indemnifying Party.
ARTICLE
15
TERMINATION
RIGHTS
15.1 Termination.
15.1.1 This
Agreement may be terminated by either Buyer or Seller, if the party seeking
to
terminate is not in material default or breach of this Agreement, upon written
notice to the other upon the occurrence of any of the following:
15.1.1.1 if
any condition set
forth herein to the obligations of the party seeking to terminate has not been
satisfied or waived on or prior to the Closing Date; or
15.1.1.2 if
the FCC denies the
Assignment Application and such denial becomes a Final Order; or
15.1.1.3 if
there shall be in
effect any judgment, final decree or order that would prevent or make unlawful
the Closing of this Agreement; or
15.1.1.4
if
the
Closing has not occurred within six (6) months after the date on which the
Assignment Application is accepted for filing by the FCC.
15.1.2
This
Agreement may be terminated by mutual agreement of the parties
hereto.
15.1.3. Buyer
may
terminate this Agreement pursuant to Section 16.2(a) hereunder.
15.2 Liability.
The
termination of this Agreement under Section 15.1 shall not relieve any party
of
any liability for breach of this Agreement prior to the date of
termination.
24
ARTICLE
16
MISCELLANEOUS
PROVISIONS
16.1 Specific
Performance. Seller
and Buyer each recognize and acknowledge that, in the event that Seller shall
fail to perform its obligations to consummate the transaction contemplated
hereby, money damages alone will not be adequate to compensate Buyer for its
injury. Seller and Buyer, therefore, each agree and acknowledge that, in the
event of Seller's failure to perform its obligation to consummate the
transaction contemplated hereby, Buyer shall be entitled, in addition to any
action for monetary damages, and in addition to any other rights and remedies
on
account of such failure, to specific performance of the terms of this Agreement
and of Seller's obligation to consummate the transaction contemplated hereby.
If
any action is brought by Buyer to enforce this Agreement, Seller shall waive
the
defense that there is an adequate remedy at law.
16.2 Risk
of Loss. The
risk
of loss or damage to any of the Stations Assets prior to the Closing Date shall
be upon Seller. In the event of such loss or damage prior to the Closing, Seller
shall, at its expense, and in consultation with Buyer, repair, replace and
restore any such damaged or lost Stations Asset to its prior condition as soon
as possible and in no event later than the Closing Date. In the event any such
loss or damage requires the Stations to be taken off the air or to operate
with
reduced power for more than seven (7) days, Buyer may in its sole election
(a)
terminate this entire Agreement with no further obligation to Seller or (b)
postpone the Closing for up to ninety (90) days, at the conclusion of which
period of postponement Buyer may terminate the Agreement if the loss or damage
has not been fully repaired and restored.
16.3 Further
Assurances. After the
Closing, Seller shall from time to time, at the request of and expense to Buyer,
execute and deliver such other instruments of conveyance and transfer and take
such other actions as may reasonably be requested in order to more effectively
consummate the transactions contemplated hereby to vest in Buyer good and
marketable title to the assets being transferred hereunder, and Buyer shall
from
time to time, at the request of and expense to Seller, execute and deliver
such
other instruments and take such other actions as may reasonably be requested
in
order to more effectively relieve Seller of any obligations being assumed by
Buyer hereunder.
25
16.4 Benefit
and Assignment. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Seller may assign
its interest under this Agreement with the prior written consent of Buyer,
which
consent shall not be unreasonably withheld.
16.5 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.
16.6 Governing
Law. The
construction and performance of this Agreement shall be governed by the laws
of
the State of Tennessee without giving effect to the choice of law principles
thereof, except that the construction and performance of any issues pertaining
to the real property shall be governed by the laws of the State of
Mississippi.
16.7 Notices.
All
notices,
elections
and other communications permitted or required under this Agreement shall be
in
writing and shall be deemed effectively given or delivered upon personal
delivery or twenty-four (24) hours after delivery to a courier service which
guarantees overnight delivery or five (5) days after deposit with the U.S.
Post
Office, by registered or certified mail, postage prepaid, and, in the case
of
courier or mail delivery, addressed as follows (or at such other address for
a
party as shall be specified by like notice):
To
Seller:
Xxxxxx
X.
Xxxxxx
Shamrock
Broadcasting, Inc.
X.X.
Xxx
000
Xxxxxxxxx,
XX 00000
Fax:
(000) 000-0000
With
a
copy (which shall
not
constitute notice) to:
Xxxx
X.
XxXxxxxxxx
Xxxxxxxx,
XxXxxxxxxx & Xxxxxxxx LLP
P.
O. Box
288
000
Xxxxx
Xxxx Xxxxxx
Xxxx,
XX
00000
26
Fax:
(000)
000-0000
To
Buyer:
Xxxxxx
X.
Xxxxxxxx
Xxxxxx
X.
Xxxxxx
The
Marketing Group
0000
00xx
Xxxxxx
Xxxxx
Xxxxxxxxx,
XX 00000
Fax:
(000) 000-0000
With
a
copy (which shall not
constitute
notice) to:
Xxxxxxx
X. Xxxx
Rush
Law
Group
0000
00xx
Xxxxxx
Xxxxx
Xxxxxxxxx,
XX 00000
Fax:
(000) 000-0000
16.8 No
Third Party Beneficiaries.
Nothing
herein expressed or implied is intended or shall be construed to confer upon
give to any person or entity other than the parties hereto and their successors
or permitted assigns, any rights or remedies under or by reason of this
Agreement.
16.9 Severability.
The
parties agree that if one or more provisions contained in this Agreement shall
be deemed or held to be invalid, illegal or unenforceable in any respect under
any applicable law, this Agreement shall be construed with the invalid, illegal
or unenforceable provision deleted, and the validity, legality and
enforceability of the remaining provisions contained herein shall not be
affected or impaired thereby; provided, however, that if the removal of the
offending provision or provisions materially alters the burdens or benefits
of
either party, the parties agree to negotiate in good faith such modifications
to
this Agreement as are appropriate to insure the burdens and benefits of each
party are reasonably comparable to those originally contemplated and
expected.
16.10 Amendments
and Waivers.
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
27
enforcement
of any waiver, amendment, change, extension or discharge is sought.
16.11 Entire
Agreement.
This
Agreement and the Exhibits and Schedules attached hereto and the ancillary
documents provided for herein embody the entire agreement and understanding
of
the parties hereto relating to the matter provided for herein and supersede
any
and all prior agreements, arrangements and understandings relating to the
matters provided for herein.
16.12 No
Broker.
Buyer
and Seller hereby mutually represent that there are not finders, consultants
or
brokers involved in this transaction and that neither Seller nor Buyer has
agreed to pay any brokers’, finders’ or consultants’ fees in connection with
this transaction.
16.13 Attorneys’
Fees.
In the
event of commencement of suit by either party to enforce the provisions of
this
Agreement, the prevailing party shall be entitled to receive attorneys' fees
and
costs of collection as the court in which such suit is brought may adjudge
reasonable in addition to all other relief granted.
16.14 Time
of Essence. Time
is
of the essence with respect to every provision of this Agreement.
16.15 Counterparts.
This
Agreement may be signed in counterpart originals, which collectively shall
have
the same legal effect as if all signatures had appeared on the same physical
document.
IN
WITNESS
WHEREOF,
the
parties hereto have executed this Agreement as of the date and year first above
written.
SHAMROCK
BROADCASTING, INC. THE
MARKETING GROUP
28
| By: /s/Xxxxxx X. Xxxxxx |
By:
/s/ Xxxxxx Xxxxxxxx
|
| Name: Xxxxxx X. Xxxxxx | Name: Xxxxxx X. Xxxxxxxx |
| Title: President | Title: President |
