Exhibit 10.18
ASSET PURCHASE AGREEMENT
by and among
NEXTMEDIA GROUP II, INC.,
NEXTMEDIA LICENSING, INC.,
REGENT BROADCASTING OF ERIE, INC.
and
REGENT LICENSEE OF ERIE, INC.
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered
this 28/th/ day of December, 2000 by and among NEXTMEDIA GROUP II, INC., a
Delaware corporation (hereinafter referred to as "NMG"), NEXTMEDIA LICENSING,
INC., a Delaware corporation (hereinafter referred to as "Licensee," and
collectively with NMG referred to as "Seller"), REGENT BROADCASTING OF ERIE,
INC., a Delaware corporation ("RBI"), and REGENT LICENSEE OF ERIE, INC., a
Delaware corporation ("RLI") (RBI and RLI collectively referred to as "Buyers").
RECITALS
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WHEREAS, Seller owns and operates radio station WJET(FM) licensed to
Erie, Pennsylvania (the "Station") pursuant to licenses issued by the Federal
Communications Commission ("FCC"); and
WHEREAS, Seller desires to sell, and Buyers desire to purchase,
certain assets and assume certain obligations associated with the ownership and
operation of the Station, all on the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
PURCHASE OF ASSETS
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1.1 Transfer of Assets. On the terms and subject to the conditions
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hereof and subject to Section 1.2, on the Closing Date (as hereinafter defined),
Seller shall sell, assign, transfer, convey and deliver to Buyers, Buyers shall
purchase, and RBI shall assume from Seller, all of the right, title and interest
of Seller in and to all of the following assets, properties, interests and
rights of Seller, which are used or held for use in the operation of the Station
(collectively, the "Station Assets"):
1.1.1 all licenses, permits and other authorizations issued to
Seller by any governmental or regulatory authority including without limitation
those issued to Licensee by the FCC (the licenses, permits and authorizations
issued by the FCC are hereafter referred to as the "Station Licenses"), used or
useful in connection with the operation of the Station, which are more fully
described in Schedule 7.4, along with renewals or modifications of such items,
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and all applications pertaining thereto, between the date hereof and the Closing
Date;
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1.1.2 the Station's optimod and transmitter, and such other equipment
as specifically described or listed in Schedule 1.1.2, together with any
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replacements thereof or improvements or additions thereto, made from the date
hereof through the Closing Date, and less any retirements or dispositions
thereof, made between the date hereof and the Closing Date in the ordinary
course of Seller's business consistent with past practices;
1.1.3 all contracts, agreements, leases and legally binding
contractual rights relating to the operation of the Station and which are listed
in Schedule 7.9, together with (a) all advertising contracts entered into or
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acquired by Seller between the date hereof and the Closing Date in the ordinary
course of business, consistent with past practices of Seller; and (b) any other
contracts, agreements, leases and legal binding contractual rights entered into
or acquired by Seller between the date hereof and the Closing Date (collectively
the "Contracts");
1.1.4 all of Seller's rights in and to all intellectual properties
listed or described on Schedule 7.12 (the "Intellectual Property").
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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 Station or to the
Station Assets, including, without limitation, the Station's local public files,
programming information and studies, blueprints, technical information and
engineering data, sales correspondence, lists of advertisers, promotional
materials, credit and sales reports and filings with the FCC and all written
Contracts to be assigned hereunder, logs, software programs and books and
records relating to employees, financial, accounting and operation 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;
and
1.1.7 except for Excluded Assets, such other assets, properties,
interests and rights owned by Seller that are used or useful in connection with
the operation of the Station.
The Station Assets shall be transferred to RBI (except for the Station's
Licenses which shall be transferred to RLI) free and clear of all debts,
security interests, mortgages, trusts, claims, pledges or other liens,
liabilities, encumbrances or rights of third parties whatsoever
("Encumbrances"), except for those Encumbrances, if any, set forth in Schedule
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7.7 ("Permitted Encumbrances").
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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 along with all rights, title and interest therein
(the "Excluded Assets"):
1.2.1 all cash and cash equivalents of Seller on hand and/or in
banks, including without limitation certificates of deposit, commercial paper,
treasury bills, marketable securities, asset or money market accounts and all
such similar accounts or investments;
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1.2.2 all investment securities and accounts receivable or notes
receivable for services performed by Seller in connection with the operation of
the Station prior to the Closing Date;
1.2.3 all tangible and intangible personal property of Seller not
specifically described or listed on Schedule 7.4, Schedule 7.12, or Schedule
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1.1.2, or in Sections 1.1.5-.7 above including, but not limited to, the
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Station's call letters "WJET";
1.2.4 all Contracts which are not specifically described or listed on
Schedule 7.9, or which have terminated or expired prior to the Closing Date in
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the ordinary course of business consistent with the past practices of Seller;
1.2.5 Any right to use the name "NextMedia Group" or any variation
thereof, Seller's corporate seals, minute books, charter documents, corporate
stock record books and such other books and records as pertain to the
organization, existence or share capitalization of Seller and duplicate copies
of such 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 and not involving or relating to the Station Assets or the
business or operations of the Station;
1.2.6 contracts of insurance, and any insurance proceeds or claims
made by, Seller relating to property or equipment repaired, replaced or restored
by Seller prior to the Closing Date;
1.2.7 all pension, profit sharing or cash or deferred (Internal
Revenue Code 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;
1.2.8 all of Seller's rights in and to all causes of action;
1.2.9 all tax refunds relating to the period prior to the Closing
Date; and
1.2.10 any right, property or asset described in Schedule 1.2.10.
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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, Section 2.2 and Section 3.3, on the Closing Date, RBI shall assume the
obligations of NMG arising or to be performed on and after the Closing Date
(except to the extent such obligations represent liabilities for activities,
events or transactions occurring, or conditions existing, on or prior to the
Closing Date) under: (a) the Contracts; and (b) all property taxes and other
governmental charges on the Station Assets. All of the foregoing liabilities and
obligations shall be referred to herein collectively as the "Assumed
Liabilities."
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2.2 Retained Liabilities. Notwithstanding anything contained in this
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Agreement to the contrary, Buyers expressly do not, and shall not, assume or
agree to pay, satisfy, discharge or perform and will not be deemed by virtue of
the execution and delivery of this Agreement or any agreement, instrument or
document delivered pursuant to or in connection with this Agreement or otherwise
by reason of or in connection with the consummation of the transactions
contemplated hereby or thereby, to have assumed or to have agreed to pay,
satisfy, discharge or perform, any liabilities, obligations or commitments of
either Seller of any nature whatsoever whether accrued, absolute, contingent or
otherwise and whether or not disclosed to Buyers, other than the Assumed
Liabilities. Seller will retain and pay, satisfy, discharge and perform in
accordance with the terms thereof, all liabilities and obligations of the Seller
other than the Assumed Liabilities including, but not limited to, the obligation
to assume, perform, satisfy or pay any liability, obligation, agreement, debt,
charge, claim, judgment or expense incurred by or asserted against Seller
related to taxes, environmental matters, pension or retirement plans or trusts,
profit-sharing plans, employment contracts, employee benefits, severance of
employees, product liability or warranty, negligence, contract breach or
default, or other obligations, claims or judgments. All of such liabilities,
obligations and commitments of Seller described in this Section 2.2 shall be
referred to herein collectively as the "Retained Liabilities."
ARTICLE 3
CONSIDERATION
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3.1 Delivery of Consideration. In consideration for the sale of the
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Station Assets to Buyers, in addition to the assumption of certain obligations
of NMG pursuant to Section 2.1 above, Buyers shall, at the Closing (as
hereinafter defined), deliver to Seller Five Million Dollars ($5,000,000) by
wire transfer of immediately available funds, subject to adjustment pursuant to
the provisions of Sections 3.2 and 3.3 below (the "Purchase Price"); provided,
however, that at the Closing, Buyers shall be entitled to a credit of One
Hundred Thousand Dollars ($100,000) against the Purchase Price for the studio
equipment and furnishings of the Station.
3.2 Escrow Deposit. (a) Within five (5) business days after the
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execution and delivery of this Agreement, Buyers, NMG and Media Venture
Partners, as Escrow Agent (the "Deposit Escrow Agent"), shall enter into a
Deposit Escrow Agreement in the form of Exhibit A hereto (the "Deposit Escrow
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Agreement") pursuant to which Buyers shall deposit the amount described below as
a deposit on the amount of the Purchase Price. Such amounts held in escrow
shall be applied as set forth herein and in the Deposit Escrow Agreement.
(b) Pursuant to the terms of the Deposit Escrow Agreement, Buyers
shall wire transfer Two Hundred Fifty Thousand Dollars ($250,000), or
alternatively, deliver an irrevocable, stand-by letter of credit for such amount
in form and substance acceptable to Seller, to an escrow account established
pursuant to the Deposit Escrow Agreement (the "Escrow Deposit"). At the
Closing, the Escrow Deposit if, in the form of cash, shall be applied to the
Purchase Price to be paid to Seller and the interest accrued thereon shall be
paid to Buyers, or if in the form of a letter of credit, shall be returned to
Buyers. As more fully described in the Deposit Escrow Agreement: (a) in the
event this Agreement is terminated because of Buyers'
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material breach of this Agreement and all other conditions to Closing are at
such time satisfied or waived (other than such conditions as can reasonably be
expected to be satisfied by the Closing), Buyers and NMG shall execute written
instructions to the Deposit Escrow Agent directing the Escrow Deposit to be paid
to or delivered for draw thereon to NMG as liquidated damages as provided in
Section 16.4 hereto for Buyers' material breach of this Agreement (the payment
of such sum to NMG shall discharge any liability Buyers may have to NMG and/or
Licensee), and the interest accrued on the Escrow Deposit shall be paid to
Buyers; and (b) in the event this Agreement is terminated under any
circumstances other than those set forth in the immediately preceding clause
(a), the Escrow Deposit and the interest accrued thereon shall be paid or
returned to Buyers.
3.3 Proration of Income and Expenses.
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3.3.1 Except as otherwise provided herein, all deposits, reserves and
prepaid and deferred income and expenses relating to the Station Assets or the
Assumed Liabilities and arising from the conduct of the business and operations
of the Station shall be prorated between Buyers and Seller in accordance with
generally accepted accounting principles as of 11:59 p.m. Eastern Standard time,
on the Closing Date. Such prorations shall include, without limitation, all ad
valorem, property taxes and other governmental charges on the Station Assets
(but excluding taxes arising by reason of the transfer of the Station Assets as
contemplated hereby which shall be paid as set forth in Section 13.2), business
and license fees, frequency discounts, music and other license fees (including
any retroactive adjustments thereof, which retroactive adjustments shall not be
subject to the ninety-day limitation set forth in Section 3.3.2), utility
expenses, amounts due or to become due under Contracts, rents and similar
prepaid and deferred items.
3.3.2 Except as otherwise provided herein, the prorations and
adjustments contemplated by this Section 3.3, to the extent practicable, shall
be made on the Closing Date. As to those prorations and adjustments not capable
of being ascertained on the Closing Date, an adjustment and proration shall be
made within ninety (90) calendar days after the Closing Date.
3.3.3 In the event of any disputes between the parties as to such
adjustments, the amounts not in dispute shall nonetheless be paid at the time
provided in Section 3.3.2 and such disputes shall be determined by
Pricewaterhouse Coopers L.L.P. (the "Independent Auditor"), whose decision shall
be final and binding on the parties, and the fees and expenses of which shall be
paid one-half by Seller and one-half by Buyers 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.
3.4 Allocation of Purchase Price. The parties shall in good faith
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attempt to agree
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prior to Closing upon an allocation of the Purchase Price among the Station
Assets. If the allocation is not agreed upon within thirty (30) days after the
Closing Date, Buyers and Seller will order an appraisal of the Station Assets
from Broadcast Investments Analysts ("BIA") and BIA will determine the
allocation. The appraisal, if required, shall be provided to each of Buyers and
Seller within forty-five (45) days after it is ordered. The fees for BIA shall
be borne equally by Buyers and Seller. Seller and Buyers agree to use the agreed
upon allocation, if any, for all tax purposes, including without limitation,
those matters subject to Section 1060 of the Internal Revenue Code of 1986, as
amended.
3.5 Adjustment for Barter. As of the Closing Date, Buyers shall be
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entitled to a credit against the Purchase Price for the amount, if any, by which
the aggregate net value of the Station's Barter Payable (as defined below) as of
the Closing Date exceeds the aggregate net value of the Station's Barter
Receivable (as defined below) as of the Closing Date by more than $17,500 with
respect to Contracts for the sale of advertising in exchange, in whole or in
part, for merchandise or services ("Trade Agreements").
"Barter Payable" means the aggregate value of time owed pursuant to
each of the Trade Agreements. "Barter Receivable" means the aggregate value of
goods and services to be received pursuant to each of the Trade Agreements.
ARTICLE 4
CLOSING
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4.1 Closing. Except as otherwise mutually agreed upon by Buyers and
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Seller, the consummation of the transactions contemplated herein (the "Closing")
shall occur on the last day of the month after (a) the satisfaction or waiver of
each condition to closing contained herein, other than such conditions as are
reasonably anticipated to be satisfied at Closing (provided that each party
hereto shall use all commercially reasonable efforts to cause each condition to
closing to be satisfied so that the Closing may occur at the earliest possible
date), and (b) the issuance of the Final Order (as defined below); or (c) such
other date as may be mutually agreed by the parties hereto (the "Closing Date");
provided, however, that so long as the closing occurs on the last day of the
month, Buyers may in their sole discretion waive the requirement that a Final
Order be issued and elect (subject to clause (a) and (c) above) to close at any
time (upon not less than five (5) business days' notice to Seller) after the
release of initial FCC approval on public notice that it has consented to the
transaction contemplated hereby (the "Initial Approval"), and provided further,
that subject to clause (a) and (b) above the Closing shall occur on the same
date of and simultaneous with the earliest date of the following: (i) the
earliest date on which Seller shall have both closed on its acquisition of, and
received program test authority for, a new FM broadcast station to operate on
Channel 230A at Fairview, Pennsylvania (the "Fairview CP"), (ii) the date which
is five (5) business days after the date on which (x) Seller shall have
terminated its acquisition of the Fairview CP, (y) Seller's agreement to acquire
the Fairview CP shall have been terminated by reason of a default thereof by
Seller, or (z) the FCC shall have issued an order which is no longer subject to
reconsideration or review by the FCC or a court of competent jurisdiction
denying Seller's proposed acquisition of the Fairview CP, or (iii) December 20,
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2001. For purposes of this Agreement, "Final Order" (and "Final") means an order
or grant by the FCC which is no longer subject to reconsideration or review by
the FCC or a court of competent jurisdiction and pursuant to which the FCC
consents, as the case may be, to the assignments of the FCC Licenses
contemplated by this Agreement or to the renewal of the FCC Licenses, each such
order or grant being without the imposition of any conditions materially adverse
to Buyers or any Affiliate (as hereinafter defined) of Buyers with respect to
the assignment of the FCC Licenses to RLI or the continued operation by Buyers
of the Station or the Station Assets. In the event that the parties close before
the Initial Approval has become a Final Order, the parties shall enter into a
mutually acceptable Unwind Agreement. The Closing shall be held preferably by
exchange of closing documents by overnight deliveries, or otherwise in the
offices of Xxxxxxxxx & Associates, P.A., in Miami, Florida, or at such place and
in such manner as the parties hereto may agree.
ARTICLE 5
GOVERNMENTAL CONSENTS
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5.1 FCC Consents. It is specifically understood and agreed by Buyers
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and Seller that the Closing and the assignment 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 without the imposition of any
conditions materially adverse to Seller, Buyers or any Affiliate of Buyers (the
"FCC Consent").
5.2 FCC Application. Within ten (10) business days after the
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execution of this Agreement, Buyers and Seller shall file an application with
the FCC for the FCC Consent (the "FCC Application"). Buyers and Seller shall
prosecute the FCC Application with all reasonable diligence and otherwise use
all reasonable efforts to obtain the FCC Consent as expeditiously as practicable
(but neither Buyers nor Seller shall have any obligation to satisfy complainants
or the FCC by taking any steps which would have a material adverse effect upon
Buyers or Seller or upon any of their respective Affiliates). If the FCC
Consent imposes any material condition on Buyers or Seller or any of their
respective Affiliates, such party shall use all reasonable efforts to comply
with such condition; provided, however, that neither Buyers nor Seller shall be
required hereunder to comply with any condition that requires the sale of any
other radio station owned by them or that otherwise would have a material
adverse effect upon them or any of their Affiliates. 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 herein shall be construed to limit either
party's right to terminate this Agreement pursuant to Article 16 hereof.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYERS
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Buyers, jointly and severally, hereby make the following
representations and warranties to Seller, each of which is true and correct on
the date hereof, shall survive the Closing and shall
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be unaffected by any investigation heretofore or hereafter made by Seller:
6.1 Organization and Standing. Buyers are corporations duly organized
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validly existing and in good standing under the laws of the State of Delaware,
and are authorized to conduct business within those states where such
qualification is necessary.
6.2 Authorization and Binding Obligations. Buyers have all necessary
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corporate power and authority to enter into and perform this Agreement and the
transactions contemplated hereby, and to own or lease the Station Assets and to
carry on the business of the Station upon the consummation of the transactions
contemplated by this Agreement. Buyers' execution, delivery and performance of
this Agreement and the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on their part and, assuming
the due authorization, execution and delivery of this Agreement by Seller, this
Agreement will constitute the legal, valid and binding obligation of Buyers,
enforceable against them in accordance with its terms, except as limited by laws
affecting creditors' rights or equitable principles generally.
6.3 Qualification As Assignee. To the best of Buyers' knowledge,
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there are no facts, allegations, conditions or circumstances relating to Buyers
which, under the Communications Act of 1934, as amended, or the existing rules
and regulations of the FCC, would prevent or delay the FCC Consent or disqualify
RLI as an assignee of the Station Licenses. There are no proceedings,
complaints, notices of forfeiture, claims or investigations pending or, to the
knowledge of Buyers, threatened against any, or in respect of any, of the
broadcast stations licensed to RLI or its Affiliates that would materially
impair the qualifications of RLI to become a licensee of the Station or delay
the FCC Consent.
6.4 Absence of Conflicting Agreements or Required Consents. Except
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as set forth in Article 5 hereof with respect to governmental consents or on
Schedule 6.4, the execution, delivery and performance of this Agreement by
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Buyers: (a) do not conflict with the provisions of the certificate of
incorporation or by-laws of Buyers; (b) do not require the consent of any third
party not affiliated with Buyers; (c) will not violate any applicable law,
judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority applicable to either Buyer; and (d) 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,
instrument, license or permit to which either Buyer is now subject.
6.5 Commissions or Finder's Fees. Neither Buyers nor any person or
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entity acting on behalf of Buyers 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.
6.6 Litigation. Buyers are not subject to any judgment, award,
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order, writ, injunction, arbitration decision or decree prohibiting the
consummation of the transactions contemplated by this Agreement, and there are
no suits, legal proceedings or investigations of any nature pending, or to the
best knowledge of Buyers, threatened against or affecting Buyers that would
affect Buyers' ability to carry out the transactions contemplated by this
Agreement.
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6.7 Financial Ability. Buyers have the financial ability and/or
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resources to consummate the transactions contemplated hereunder.
6.8 Full Disclosure. No representation or warranty made by Buyers
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contained in this Agreement nor any certificate, document or other instrument
furnished or to be furnished by Buyers pursuant hereto contains or will contain
any untrue statement of a material fact, or omits or shall omit to state any
material fact required to make any statement contained herein or therein not
misleading. To the best of Buyers' knowledge, there is no impending or
contemplated event or occurrence that would cause any of the foregoing
representations not to be true and complete on the date of such event or
occurrence as if made on that date.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF SELLER
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Each Seller makes the following representations and warranties to
Buyers, each of which is true and correct on the date hereof, shall survive the
Closing and shall be unaffected by any investigation heretofore or hereafter
made by Buyers:
7.1 Organization and Standing. Seller is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware, is authorized to conduct business within those states where such
qualification is necessary, and has the requisite power and authority to own,
lease and operate the Station Assets owned or leased by it and to carry on the
business of the Station as now being conducted by it and as proposed to be
conducted by it between the date hereof and the Closing Date.
7.2 Authorization and Binding Obligation. Seller has the corporate
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power and authority, and has taken all necessary and proper corporate action to
enter into and perform this Agreement and to consummate the actions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by
Seller and, assuming the due authorization, execution and delivery of this
Agreement by Buyers, constitutes the legal, valid and binding obligation of
Seller enforceable against it in accordance with its terms, except as limited by
laws affecting the enforcement of creditors' rights or equitable principles
generally.
7.3 Absence of Conflicting Agreements or Required Consents. Except
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as set forth in Article 5 with respect to governmental consents and in Schedule
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7.9 with respect to consents required in connection with the assignment of
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certain Contracts, the execution, delivery and performance of this Agreement by
Seller: (a) do not require the consent of any third party (including, without
limitation, the consent of any governmental, regulatory, administrative or
similar authority); (b) will not conflict with, result in a breach of, or
constitute a violation of or default under, the provisions of Seller's
certificate of incorporation or by-laws (or other charter or organizational
documents), or any applicable law, judgment, order, injunction, decree, rule,
regulation or ruling of any governmental authority applicable to Seller or by
which Seller or any of the Station 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
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of the terms, conditions or provisions of, or constitute a default under, any
Contract, agreement, instrument, license or permit to which Seller or any of the
Station Assets is now subject; and (d) will not result in the creation of any
lien, charge or encumbrance on any of the Station Assets.
7.4 Government Authorizations.
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7.4.1 Schedule 7.4 hereto contains a true and complete list of
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the Station Licenses and other licenses, permits or other authorizations from
governmental and regulatory authorities which are material for the lawful
conduct of the business and operations of the Station in the manner and to the
full extent they are presently conducted (including, without limitation,
auxiliary licenses associated with the Station). Seller has delivered to Buyers
true and complete copies of the Station Licenses and the other licenses, permits
and authorizations listed in Schedule 7.4, including any and all amendments and
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other modifications thereto.
7.4.2 Licensee is the authorized legal holder of the Station
Licenses and other licenses, permits and authorizations listed in Schedule 7.4.
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Except as set forth Schedule 7.4, none of the Station Licenses and other
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licenses, permits and authorizations listed in Schedule 7.4 is subject to any
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restrictions or conditions which would materially limit the full operation of
the Station as now operated. The Station is not operating under any special
temporary authority from the FCC.
7.4.3 Except as set forth in Schedule 7.4, and except for
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matters affecting the radio broadcast industry generally, there are no
applications, complaints, petitions or proceedings pending or, to the best of
Seller's knowledge, threatened as of the date hereof before the FCC or any other
governmental or regulatory authority relating to the business or operations of
the Station. Except as set forth in Schedule 7.4, the Station Licenses and the
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other licenses, permits and authorizations listed in Schedule 7.4 are in good
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standing, are in full force and effect and are unimpaired by any material act or
omission of Seller or its shareholders, officers, directors or employees. The
operations of the Station are in compliance in all material respects with the
Station Licenses and the underlying construction permits and the other licenses,
permits and authorizations listed in Schedule 7.4. No proceedings are pending
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or, to the best of Seller's knowledge, threatened, and to the best of Seller's
knowledge there has not been any act or omission of Seller or any of its
officers, directors, shareholders or employees, which may result in the
revocation, modification, non-renewal or suspension of any of the Station
Licenses or the other licenses, permits and authorizations listed in Schedule
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7.4, the denial of any pending applications, the issuance of any cease and
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desist order, the imposition of any administrative actions by the FCC or any
other governmental or regulatory authority with respect to the Station Licenses
or the other licenses, permits and authorizations listed in Schedule 7.4 or
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which may materially affect Buyers' ability to continue to operate the Station.
7.4.4 To the best of Seller's knowledge: (i) the Station is not
causing unlawful interference to the transmissions of any other broadcast
station or communications facility nor has the Station received any complaints
with respect thereto; and (ii) no other broadcast station or communications
facility is causing unlawful interference to transmissions of the Station or the
public's reception of such transmissions.
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7.4.5 Seller has no reason to believe that, upon Seller's compliance
with the FCC's requirement that it divest the Station, the Station Licenses and
the other licenses, permits, or authorizations listed in Schedule 7.4 will not
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be renewed in their ordinary course.
7.4.6 All reports, forms, and statements required to be filed by
Seller with the FCC with respect to the Station since the grant of the last
renewal of the Station Licenses have been filed and are substantially complete
and accurate.
7.4.7 To the best knowledge of Seller, there are no facts which,
under the Communications Act of 1934, as amended, or the existing rules and
regulations of the FCC, would disqualify Licensee as assignor of the Stations
Licenses or cause the Stations Licenses and the other licenses, permits and
authorizations listed in Schedule 7.4 not to be renewed in their ordinary
------------
course.
7.4.8 The operation of the Station and all of the Station Assets are
in compliance in all respects with ANSI Radiation Standards C95.1-1992.
7.5 Compliance with FCC Regulations. The operation of the Station and all
-------------------------------
of the Station Assets are in compliance in all material respects with: (a) all
applicable engineering standards required to be met under applicable FCC rules;
and (b) all other applicable federal, state and local rules, regulations,
requirements and policies, including, but not limited to, equal employment
opportunity policies of the FCC, and all applicable painting and lighting
requirements of the FCC and the Federal Aviation Administration to the extent
required to be met under applicable FCC rules and regulations, and to the best
of Seller's knowledge, there are no filed claims to the contrary.
7.6 Taxes. Seller has filed all federal, state, local and foreign income,
-----
franchise, sales, use, property, excise, payroll and other tax returns required
by law to be filed by it and has paid in full all taxes, estimated taxes,
interest, assessments, and penalties due and payable by it. All returns and
forms that have been filed have been true and correct in all material respects
and no tax or other payment in an amount other than as shown on such returns and
forms is required to be paid by Seller and has not been paid by Seller. There
are no present disputes as to taxes of any nature payable by Seller which in any
event could adversely affect any of the Station Assets or the operation of the
Station by Buyers. Seller has not been advised that any of its tax returns,
federal, state, local or foreign, have been or are being audited. Seller does
not and will not in the future have any liability, fixed or contingent, for any
unpaid federal, state or local taxes or other governmental or regulatory charges
whatsoever (including without limitation withholding and payroll taxes) which
could result in a lien on the Station Assets after conveyance thereof to Buyers
or in any other form of transferee liability to Buyers.
7.7 Personal Property. Schedule 1.1.2 hereto contains a list of all items
------------------ --------------
of tangible personal property and assets being transferred to Buyers and used or
useful in the conduct of the business and operations of the Station. Schedule
--------
1.1.2 also separately lists all tangible personal property leased by Seller
-----
pursuant to leases included within the Contracts. Except as disclosed in
Schedule 7.7, Seller has, and following the Closing, RBI will have, good and
------------
marketable title to all of the items of tangible personal property which are
included in the Station Assets (other than
12
those subject to lease) and none of such Station Assets is, or at the Closing
will be, subject to any security interest, mortgage, pledge, lease, license,
lien, encumbrance, title defect or other charge, except for liens for taxes not
yet due and payable, and except for the Assumed Liabilities. The properties
listed in Schedule 1.1.2, along with those properties subject to lease and
--------------
included among the Contracts, constitute all tangible personal property being
transferred to Buyers. Except as set forth in Schedule 1.1.2, all items of
--------------
tangible personal property included in the Station Assets are in good operating
condition (ordinary wear and tear excepted), are free from all material defect
and damage and are suitable for the purposes for which they are now being used.
7.8 Fairview CP. Seller holds an option to acquire the Fairview CP,
-----------
which option is in full force and effect, is enforceable against the owner of
the Fairview CP, and the only action required to exercise said option is written
notice of exercise and execution of a definitive purchase agreement. A copy of
the option and form of purchase agreement has been delivered to Buyers.
7.9 Contracts. Schedule 7.9 lists all Contracts being transferred to
--------- ------------
Buyers, as of the date of this Agreement. Those Contracts listed on Schedule
--------
7.9, if any, requiring the consent of a third party to assignment are identified
---
by an asterisk in the left margin of Schedule 7.9. Those Contracts, if any, that
------------
Seller and Buyers have agreed are material to the operation of the Station
Assets and the valid assignment of which and receipt by Buyers of consents
thereto is a condition to the consummation of the transactions contemplated
hereby (the "Material Contracts") are identified by an "M" in the left margin of
Schedule 7.9.
------------
7.10 Status of Contracts, etc. Seller has delivered to Buyers true
------------------------
and complete copies of all Contracts, including any and all amendments and other
modifications thereto. All of the Contracts are in full force and effect and
are valid, binding and enforceable in accordance with their respective terms,
except as limited by laws affecting creditors' rights or equitable principles
generally. Seller has complied in all material respects with all Contracts and
is not in default beyond any applicable grace periods under any thereof and, to
the best of Seller's knowledge, no other contracting party is in default under
any thereof.
7.11 Reserved.
--------
7.12 Intellectual Property. Except as noted thereon, Schedule 7.12
--------------------- -------------
hereto is a true and complete list of all intellectual property used in
connection with the operation of the Station. Except as set forth on Schedule
--------
7.12, to the best of Seller's knowledge: (a) Seller's right, title and interest
----
in the Intellectual Property as owner or licensee, as applicable, are free and
clear of all liens, claims, encumbrances, rights or equities whatsoever of any
third party and, to the extent any of the Intellectual Property is licensed to
Seller, such interest is valid and uncontested by the licensor thereof or any
third party; (b) Seller has not received any notice of any claimed conflict,
violation or infringement of such Intellectual Property; and (c) none of such
Intellectual Property rights is being infringed by any third party.
7.13 Financial Statements. Seller has furnished Buyers with true and
--------------------
complete copies
13
of all financial statements, reports and information relating to the Station
obtained by Seller from The Jet Broadcasting Co., Inc. at the xxxx Xxxxxx
acquired the Station, together with all other financial statements, reports and
information of Seller relating to the Station requested by Buyers in Buyers' due
diligence request for the period from August 16, 2000 (collectively, the
"Financial Statements"). The Financial Statements have been prepared from the
books, records and accounts of Seller relating to the Station and are generally
consistent with the books, records and accounts of Seller with respect to such
Station (which books, records and accounts are complete and accurate in all
material respects), and present fairly the financial condition of Seller with
respect to such Station and the results of operations for the period then ended.
7.14 Personnel Information.
---------------------
7.14.1 Schedule 7.14 contains a true and complete list of all
-------------
persons being transferred with the Station, including date of hire, a
description of material compensation arrangements (other than employee benefit
plans set forth in Schedule 7.17) and a list of other material terms of any and
--------------
all agreements affecting such persons and their employment by NMG. Seller has
received no notice that, and Seller is not aware of, any individual employee who
shall or is likely to terminate his or her employment relationship with the
Station upon the execution of this Agreement or after the Closing.
7.14.2 Seller, with respect to the Station, is not a party to
any contract or agreement 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 employees of
Seller at the Station. Seller has no knowledge of any organization effort
currently being made or threatened by or on behalf of any labor union with
respect to employees of Seller at the Station.
7.14.3 Seller, with respect to the Station, has complied in all
material respects with all laws relating to the employment of labor, including,
without limitation, the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and those laws relating to wages, hours, collective
bargaining, unemployment insurance, workers' compensation, equal employment
opportunity and payment and withholding of taxes.
7.15 Litigation. Except as described on Schedule 7.15, Seller is not
---------- -------------
subject to any judgment, award, order, writ, injunction, arbitration decision or
decree relating to the conduct of the business or the operation of the Station
or any of the Station Assets, and there is no litigation, administrative action,
arbitration, proceeding or investigation pending or, to the best knowledge of
Seller, threatened against Seller with respect to, related to or in connection
with the operation of the Station 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 Station Licenses), or before any other tribunal duly authorized to resolve
disputes. In particular, but without limiting the generality of the foregoing,
to the best knowledge of Seller, there are no applications, complaints or
proceedings pending or threatened before the FCC or any other governmental
organization with respect to the business or operations of the Station.
14
7.16 Compliance With Laws. Except as set forth in Schedule 7.16: (i)
-------------------- --------------
Seller is not in material violation of, nor has Seller received any notice
asserting any non-compliance by it in connection with the operation of the
Station or use or ownership of any of the Station Assets with, any applicable
statute, rule or regulation, whether federal, state or local; (ii) Seller is not
in default with respect to any judgment, order, injunction or decree of any
court, administrative agency or other governmental authority or any other
tribunal duly authorized to resolve disputes which relates to the transactions
contemplated hereby; and (iii) Seller is in all material respects in compliance
with all laws, regulations and governmental orders applicable to the conduct of
the business and operations of the Station, and its present use of the Station
Assets does not violate any of such laws, regulations or orders.
7.17 Reserved.
--------
7.18 Commissions or Finder's Fees. Neither Seller nor any person or
----------------------------
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.
7.19 Conduct of Business in Ordinary Course; Adverse Changes. Since
-------------------------------------------------------
August 16, 2000: (a) Seller has conducted the business of the Station in the
ordinary course consistent with Seller's past practices; (b) there has not been
any material adverse change in the business, assets, properties, prospects or
condition (financial or otherwise) of the Station, or any damage, destruction,
or loss affecting any of the Station Assets; and (c) Seller has not created,
assumed, or suffered any mortgage, pledge, lien or encumbrance on any of the
Station Assets, which will not be released or terminated at or prior to closing.
7.20 Instruments of Conveyance: Good Title. The instruments to be
-------------------------------------
executed by Seller and delivered to Buyers at the Closing, conveying the Station
Assets to Buyers, will transfer good and marketable title to the Station Assets
free and clear of all liabilities (absolute or contingent), security interests,
mortgages, pledges, liens, obligations and encumbrances, except for Permitted
Encumbrances and except as set forth in Schedule 7.7 hereto and those
------------
obligations referred to in the first sentence of Section 2.1 hereof.
7.21 Undisclosed Liabilities. Excepting only for the Assumed
-----------------------
Liabilities, no liability or obligation of any nature, whether accrued,
absolute, contingent or otherwise, relating to Seller, the Station or the
Station Assets exists which could, after the Closing result in any form of
transferee liability against Buyers or subject the Station Assets to any lien,
encumbrance, claim, charge, security interest or imposition whatsoever or
otherwise affect the full, free and unencumbered use of the Station Assets by
Buyers.
7.22 Full Disclosure. No representation or warranty made by Seller
---------------
contained in this Agreement nor any certificate, document or other instrument
furnished or to be furnished by Seller pursuant hereto contains or will contain
any untrue statement of a material fact, or omits or shall omit to state any
material fact required to make any statement contained herein or therein not
misleading. To the best of Seller's knowledge, there is no impending or
contemplated event or occurrence that would cause any of the foregoing
representations not to be true and complete on the date of such event or
occurrence as if made on that date.
15
Whenever in this Article 7 a warranty or representation is qualified
by a word or phrase referring to the best of Seller's knowledge (or similar
terms), it shall mean to the actual knowledge of Xxxx X. Xxxxxx, Seller's local
engineer and the Station's local general manager.
ARTICLE 8
COVENANTS OF BUYERS
-------------------
8.1 Closing. Subject to Article 11 hereof, on the Closing Date,
-------
Buyers shall purchase the Station Assets from Seller as provided in Article I
hereof and RBI shall assume the Assumed Liabilities of NMG as provided in
Article 2 hereof.
8.2 Notification. Buyers, jointly or severally, shall provide Seller
------------
prompt written notice of any change in any of the information contained in the
representations and warranties made in Article 6. Buyers shall also notify
Seller of any litigation, arbitration or administrative proceeding pending or,
to their knowledge, threatened against Buyers which challenges the transactions
contemplated hereby.
8.3 No Inconsistent Action. Buyers, jointly and severally, shall not
----------------------
take any action which is materially inconsistent with their obligations under
this Agreement or take any action which would cause any representation or
warranty of Buyers contained herein to be or become false or invalid or which
could hinder or delay the consummation of the transactions contemplated by this
Agreement.
ARTICLE 9
COVENANTS OF SELLER
-------------------
9.1 Pre-Closing Covenants. Seller covenants and agrees with respect
---------------------
to the Station that, between the date hereof and the Closing Date or the earlier
termination of this Agreement in accordance with its terms, except as expressly
permitted by this Agreement or with the prior written consent of Buyers, Seller
shall act in accordance with the following:
9.1.1 Seller shall use all commercially reasonable efforts to
conduct the business and operations of the Station in the ordinary course of
business consistent with past practice and with the intent of preserving the
ongoing operations and assets of the Station, including but not limited to
maintaining the independent identity of the Station, and retaining the current
format and programming (including the content thereof) of the Station, and using
all reasonable efforts to retain at the Station the services of all active
employees, consultants and agents of the Station who are being transferred to
the Buyers.
9.1.2 Seller shall use all commercially reasonable efforts to:
(i) preserve the operation of the Station; and (ii) preserve the business of the
Station's advertisers, customers,
16
suppliers and others having business relations with the Station.
9.1.3 Seller shall operate the Station in all material respects in
accordance with FCC rules and regulations and the Station Licenses and with all
other laws, regulations, rules and orders, and shall not cause or permit by any
act, or failure to act, any of the Station Licenses or other licenses, permits
or authorizations listed in Schedule 7.4 to expire, be surrendered, adversely
------------
modified, or otherwise terminated, or the FCC to institute any proceedings for
the suspension, revocation or adverse modification of any of the Station
Licenses, or fail to prosecute with due diligence any pending applications to
the FCC.
9.1.4 Should any fact relating to Seller which would cause the FCC to
deny its consent to the transactions contemplated by this Agreement come to
Seller's attention, Seller will promptly notify Buyers thereof and will use all
reasonable efforts to take such steps as may be necessary to remove any such
impediment to the FCC's consent to the transactions contemplated by this
Agreement.
9.1.5 Except for changes or actions in the normal course of business,
Seller shall not: (a) sell broadcast time on a prepaid basis (other than in the
course of existing credit practices); (b) except as required by the applicable
law or written agreements currently in effect, grant or agree to grant any
general increases in the rates of salaries or compensation payable to employees
of the Station (provided that no such increases to any employee shall in the
aggregate exceed 5% of such employee's compensation as set forth on Schedule
--------
7.14 hereto), (c) except as required by written agreements currently in effect,
----
grant or agree to grant any specific bonus or increase in compensation to any
executive management employee of the Station (provided that no such increases to
any employee shall in the aggregate exceed 5% of such employee's compensation as
set forth on Schedule 7.14 hereto); (d) provide for any new pension, retirement
-------------
or other employment benefits for employees of the Station or any increases in
any existing benefits, (e) modify, change or terminate any Contract; or (f)
change the advertising rates in effect as of the date hereof.
9.1.6 Seller shall give or cause the Station to give Buyers and
Buyers' counsel, accountants, engineers and other representatives, at Buyers'
reasonable request and upon reasonable notice, full and reasonable access during
normal business hours to all of Seller's personnel being transferred with the
Station, properties, books, Contracts, reports and records (including, without
limitation, financial information and tax returns relating to the Station, real
estate, buildings and equipment relating to the Station and to the Station's
employees, and to furnish Buyers with information and copies of all documents
and agreements relating to the Station and the operation thereof (including but
not limited to financial and operating data and other information concerning the
financial condition, results of operations and business of the Station) that
Buyers may reasonably request. The rights of Buyers under this Section 9.1.6
shall not be exercised in such a manner as to interfere unreasonably with the
business of the Station.
9.1.7 Seller shall use all reasonable efforts to obtain any third
party consents necessary for the assignment of any Contract (which shall not
require any payment to any such third party except for such amounts contemplated
by the Contract to be assigned, and any amount then owing by Seller to such
third party).
17
9.1.8 Seller shall:
(a) refrain from making any sale, lease, transfer or other
disposition of any of the Station Assets having a value in excess of $10,000 in
the aggregate, other than in the normal course of business at fair market value
in connection with replacements of equal or greater value without the prior
approval of Buyers, which approval will not be unreasonably withheld;
(b) if requested by Buyers, with respect to any Contract
which can be terminated or not renewed by Seller in compliance with the terms
thereof, notify the other parties to such Contract that Seller elects to
terminate (or, if applicable, elect not to renew) such Contract; and
(c) within thirty (30) days following the end of each
calendar month, provide Buyers with a statement of income for the Station for
such month and for the year-to-date period then ended (including a comparison to
budget).
9.2 Notification. Seller will provide Buyers prompt written notice of any
------------
change in any of the information contained in the representations and warranties
made in Article 7 or any Schedule. Seller agrees to notify Buyers of any
litigation, arbitration or administrative proceeding pending or, to the best of
its knowledge, threatened, which challenges the transactions contemplated
hereby. Seller shall promptly notify Buyers if any of the normal broadcast
transmissions of the Station are interrupted, interfered with or in any way
impaired, and shall provide Buyers with prompt written notice of the problem and
the measures being taken to correct such problem. If the Station is not restored
so that operation is resumed to substantially its prior signal coverage and to
within FCC rules and regulations regarding power parameters within five (5) days
of such event and to prior antenna height and to within FCC rules and
regulations regarding power parameters within thirty (30) days of such event, or
if more than five (5) such events occur within any thirty (30) day period, or if
the Station shall be off the air for more than one hundred twenty (120)
consecutive hours, then Buyers shall have the right to terminate this Agreement.
9.3 No Inconsistent Action. Seller shall not take any action which is
----------------------
materially inconsistent with its obligations under this Agreement nor take any
action which would cause any representation or warranty of Seller contained
herein to be or become false or invalid or which could hinder or delay the
consummation of the transactions contemplated by this Agreement. Seller shall
also take all necessary steps to cause the date of closing of its acquisition of
the Fairview CP to be extended, if necessary, to coincide with the Closing Date
under this Agreement in accordance with Section 4.1.
9.4 Closing. Subject to Article 12 hereof, on the Closing Date, Seller
-------
shall transfer, convey, assign and deliver to Buyers, the Station Assets and the
Assumed Liabilities as provided in Articles 1 and 2 and Section 7.20 of this
Agreement.
9.5 Other Items. Until the Closing Date or the earlier termination of
-----------
this Agreement in
18
accordance with the terms hereof, Seller shall not: (a) waive or release any
right relating to the business or operations of the Station, except for
adjustments or settlements made in the ordinary course of business consistent
with its past practices; (b) transfer or grant any rights under any of the
Station Licenses; (c) enter into any commitment for capital expenditures for
which Buyers would become liable after the Closing Date; (d) introduce any
material changes in the broadcast hours or in the format of the Station or any
other material change in the Station's programming policies; (e) change the call
letters of the Station except to call letters that have been suggested by Buyers
and that are available to use without delay; (f) enter into any transaction or
make or enter into any contract or commitment with respect to the Station or the
Station Assets which by reason of its size or otherwise is not in the ordinary
course of business consistent with past practices; or, without the prior written
consent of Buyers, enter into any transaction or make or enter into any contract
or commitment with respect to the Station or the Station Assets which involves
more than $5,000 or is for longer than one (1) year; (g) fail to repair,
maintain or replace the Station's transmitting, studio and other technical
equipment necessary to maintain the Station's broadcast transmissions within the
current parameters of the Station License; (h) enter into, extend or renew any
trade deals or sales of broadcast time on the Station except as same are
approved by RBI and except for time sales for cash at the Station's prevailing
rates; or (i) allow to occur or exist any event of default under any contract,
agreement, arrangement, license, permit, commitment or understanding, which
event of default would have a material adverse affect upon the business,
operations or financial position of the Station.
9.6 Exclusivity. Seller agrees that, commencing on the date hereof
-----------
through the Closing or earlier termination of this Agreement, Buyers shall have
the exclusive right to consummate the transactions contemplated herein, and
during such exclusive period, Seller agrees that neither Seller, nor any
shareholders, director, officer, employee or other representative of Seller: (a)
will initiate, solicit or encourage, directly or indirectly, any inquiries, or
the making or implementation of any proposal or offer with respect to a merger,
acquisition, consolidation or similar transaction involving, or any purchase of,
all or any portion of the Station Assets (any such inquiry, proposal or offer
being hereinafter referred to as an "Acquisition Proposal" and any such
transaction being hereinafter referred to as an "Acquisition"); (b) will engage
in any negotiations concerning, or provide any confidential information or data
to, or have any discussions with, any person relating to an Acquisition
Proposal, or otherwise facilitate any effort or attempt to make or implement an
Acquisition Proposal; or (c) will continue any existing activities, discussions
or negotiations with any parties conducted heretofore with respect to any
Acquisition Proposal or Acquisition and will take the necessary steps to inform
the individuals or entities referred to above of the obligations undertaken by
them in this Section 9.6.
9.7 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 Station. Copies of each
such application, fee filing, report and document filed between the date hereof
and the Closing Date shall be furnished to Buyers as promptly as practicable
after its filing.
9.8 Asset Purchase Agreement. Seller shall place a complete copy of
------------------------
this Agreement in the local public inspection file of the Station and shall
append a complete copy of this
19
Agreement to the application to the FCC for the FCC approval.
9.9 Fairview CP. Within five (5) business days after the execution
-----------
and delivery of this Agreement, Seller shall exercise its option to acquire the
Fairview CP, and promptly thereafter execute the definitive purchase agreement
related thereto in the form provided to Buyers and proceed to consummate the
transaction in accordance with, and abide by the terms of, the said purchase
agreement.
ARTICLE 10
JOINT COVENANTS
---------------
Buyers and Seller each covenant and agree that between the date hereof
and the Closing Date, they shall act in accordance with the following:
10.1 Confidentiality. Subject to the requirements of applicable law,
---------------
each of the Buyers and Seller shall each keep confidential all information
obtained by it with respect to the other parties hereto in connection with this
Agreement and the 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. Notwithstanding the foregoing, no party shall be required
to keep confidential or return any information which: (a) is known or available
through other lawful sources, not bound by a confidentiality agreement with the
disclosing party; (b) is or becomes publicly known through no fault of the
receiving party or its agents; (c) 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 of the order or request and
the purpose of the disclosure); or (d) is developed by the receiving party
independently of the disclosure by the disclosing party. Notwithstanding
anything to the contrary herein, either party, with the prior written approval
of the other party, may make such press releases and other public statements and
announcements as it deems necessary and appropriate in connection with this
Agreement and the transactions contemplated hereby, unless such press release,
statement or announcement is made in accordance with the disclosing party's
legal obligations (including, but not limited to, filings permitted or required
by the Securities Act of 1933 and the Securities and Exchange Act of 1934, the
NASDAQ National Market and other similar regulatory bodies), in which case such
prior approval shall not be required.
10.2 Cooperation. Subject to express limitations contained elsewhere
-----------
herein, Buyers and Seller agree to cooperate fully with one another in taking
any reasonable actions (including without limitation, reasonable 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, including but not limited to the satisfaction of any condition to
closing set forth herein.
20
10.3 Control of Station. Buyers shall not, directly or indirectly,
------------------
control, supervise or direct the operations of the Station prior to the Closing.
Such operations, including complete control and supervision of all Station
programs, employees and policies, shall be the sole responsibility of Seller.
10.4 Consents to Assignment. To the extent that any Contract
----------------------
identified in the Schedules is not capable of being sold, assigned, transferred,
delivered or subleased without the waiver or consent of any third person
(including a government or governmental unit), or if such sale, assignment,
transfer, delivery or sublease or attempted sale, assignment, transfer, delivery
or sublease would constitute a breach thereof or a violation of any law or
regulation, this Agreement and any assignment executed pursuant hereto shall not
constitute a sale, assignment, transfer, delivery or sublease or an attempted
sale, assignment, offer, delivery or sublease thereof. Subject to the
provisions of Section 11.5, in those cases where consents, assignments, releases
and/or waivers have not been obtained at or prior to the Closing relating to the
assignment to RBI of the Contracts, this Agreement and any assignment executed
pursuant hereto, to the extent permitted by law, shall constitute an equitable
assignment by Seller to RBI of all of Seller's rights, benefits, title and
interest in and to the Contracts, and where necessary or appropriate, RBI shall
be deemed to be Seller's agent for the purpose of completing, fulfilling and
discharging all of Seller's rights and liabilities arising after the Closing
Date under such Contracts. Seller shall use all commercially reasonable efforts
to provide RBI with the financial and business benefits of such Contracts
(including, without limitation, permitting RBI to enforce any rights of Seller
arising under such Contracts), and RBI shall, to the extent RBI is provided with
the benefits of such Contracts, assume, perform and in due course pay and
discharge all debts, obligations and liabilities of Seller under such Contracts
to the extent that RBI was to assume those obligations pursuant to the terms
hereof.
10.5 Filings. In addition to the covenants of the parties set forth
-------
in Article 5 hereto, as promptly as practicable after the execution of this
Agreement, Buyers and Seller shall use all reasonable efforts to obtain, and to
cooperate with each other in obtaining, all authorizations, consents, orders and
approvals of any governmental authority that may be or become necessary in
connection with the consummation of the transactions contemplated by this
Agreement, and to take all reasonable actions to avoid the entry of any order or
decree by any governmental authority prohibiting the consummation of the
transactions contemplated hereby, including without limitation, any reports or
notifications that may be required to be filed with the FCC, and each shall
furnish to one another all such information in its possession as may be
necessary for the completion of the reports or notifications to be filed by the
other.
10.6 Bulk Sales Laws. Buyers hereby waive compliance by Seller with
---------------
the provisions of the "bulk sales" or similar laws of any state. Seller agrees
to indemnify Buyers and hold them harmless from any and all loss, cost, damage
and expense (including but not limited to, reasonable attorneys' fees) sustained
by Buyers as a result of any failure of Seller to comply with any "bulk sales"
or similar laws.
10.7 Employee Matters. Seller shall be responsible for the payment
----------------
of all compensation and accrued employee benefits payable to all employees up to
the Closing Date. Seller acknowledges and agrees that it, and not Buyers, is
and shall be solely responsible for any
21
and all severance, insurance, supplemental pension, deferred compensation,
retirement and any other benefits, and related costs, premiums and claims, due,
to become due, committed or otherwise promised to any person who, as of the
Closing Date, is a retiree, former employee, or current employee of Seller,
relating to the period up to the Closing Date. Buyers, as purchaser of the
Station Assets, shall assume no employee benefit plans, programs or practices,
whether or not set forth in writing, maintained by Seller at any time.
ARTICLE 11
CONDITIONS OF CLOSING BY BUYERS
-------------------------------
The obligations of Buyers hereunder are, at their option, subject to
satisfaction or waiver, at or prior to the Closing Date, of each of the
following conditions:
11.1 Representations, Warranties and Covenants.
-----------------------------------------
11.1.1 All representations and warranties of Seller made in this
Agreement or in any Exhibit, Schedule or document delivered pursuant hereto,
shall be true and complete if limited by materiality, in accordance with the
terms thereof in all respects and if not so limited by materiality, 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 (a) expressly permitted or
contemplated by the terms of this Agreement; or (b) in the ordinary course of
business which are not, either in individually or in the aggregate, material and
adverse.
11.1.2 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.
11.1.3 Buyers shall have received a certificate, dated as of the
Closing Date, from Seller, executed by an authorized officer of Seller to the
effect that: (a) the representations and warranties of Seller contained in this
Agreement are true and complete in all material respects on and as of the
Closing Date as if made on and as of that date; and (b) Seller has complied with
or performed in all material respects all terms, covenants and conditions to be
complied with or performed by it on or prior to the Closing Date.
11.2 Governmental Consents. The FCC Consent shall have been obtained
---------------------
and, subject to the provisions of Section 4.1 hereof, shall have become a Final
Order.
11.3 Governmental Authorizations. Seller or an Affiliate of Seller
---------------------------
shall be the holder of the Station Licenses and all other licenses, permits and
other authorizations listed in Schedule 7.4, 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 Station or the operations thereof. No
application shall be pending for the renewal of any of the Station Licenses. No
proceeding shall be pending which seeks, or the effect of which reasonably could
be, to revoke, cancel, fail to renew, suspend or adversely modify any of the
Station Licenses or any other licenses, permits or
22
other authorizations listed in Schedule 7.4.
------------
11.4 Adverse Proceedings. No suit, action, claim or governmental
-------------------
proceeding shall be pending or threatened against, and no order, decree or
judgment of any court, agency or other governmental authority shall have been
rendered (and remain in effect) against, any party hereto which: (a) would
render it unlawful, as of the Closing Date, to effect the transactions
contemplated by this Agreement in accordance with its terms; (b) questions the
validity or legality of any transaction contemplated hereby; (c) seeks to enjoin
any transaction contemplated hereby; (d) seeks material damages on account of
the consummation of any transaction contemplated hereby; or (e) is a petition of
bankruptcy by or against Seller, an assignment by Seller for the benefit of its
creditors, or other similar proceeding.
11.5 Third-Party Consents. All Material Contracts shall be in full
--------------------
force and effect on the Closing Date, and Seller shall have obtained and shall
have delivered to RBI all appropriate third-party consents in form and substance
acceptable to RBI in connection with the assignment of the Material Contracts to
RBI and compliance with reasonable requirements of Buyers' senior lender.
11.6 Closing Documents. Seller shall have delivered or caused to be
-----------------
delivered to Buyers, on the Closing Date, all bills of sale, endorsements,
assignments and other instruments of conveyance reasonably satisfactory in form
and substance to Buyers, effecting the sale, transfer, assignment and conveyance
of the Station Assets to Buyers, including, without limitation, each of the
documents required to be delivered by it pursuant to Article 14.
ARTICLE 12
CONDITIONS OF CLOSING BY SELLER
-------------------------------
The obligations of Seller hereunder are, at its option, subject to
satisfaction or waiver, at or prior to the Closing Date, of each of the
following conditions:
12.1 Representations, Warranties and Covenants.
-----------------------------------------
12.1.1 All representations and warranties of Buyers 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.
12.1.2 All the terms, covenants and conditions to be complied
with and performed by Buyers on or prior to the Closing Date shall have been
complied with or performed in all material respects.
12.1.3 Seller shall have received a certificate, dated as of
the Closing Date, executed by an authorized officer of Buyers, to the effect
that: (a) the representations and
23
warranties of Buyers contained in this Agreement are true and complete in all
material respects on and as of the Closing Date as if made on and as of that
date; and (b) Buyers have complied with or performed in all material respects
all terms, covenants and conditions to be complied with or performed by them on
or prior to the Closing Date.
12.2 Governmental Consents. The FCC Consent shall have been obtained
---------------------
and. subject to the provisions of Section 4.1 hereof, shall have become a Final
Order.
12.3 Adverse Proceedings. No suit, action, claim or governmental
-------------------
proceeding shall be pending or threatened against, and no other decree or
judgment of any court, agency or other governmental authority shall have been
rendered (and remain in effect) against, any party hereto which: (a) would
render it unlawful, as of the Closing Date, to effect the transactions
contemplated by this Agreement in accordance with its terms; (b) questions the
validity or legality of any transaction contemplated hereby; (c) seeks to enjoin
any transaction contemplated hereby; or (d) seeks material damages on account of
the consummation of any transaction contemplated hereby.
12.4 Closing Documents. Buyers 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 by them pursuant to Article 14.
12.5 Tower License. In the event the Closing occurs simultaneously
--------------
with the closing on Seller's acquisition of the Fairview CP, as provided in
Section 4.1, Buyer shall have entered into an Antenna License Agreement with
Seller in the form of Exhibit B (the "Antenna License Agreement").
---------
ARTICLE 13
TRANSFER TAXES: FEES AND EXPENSES
---------------------------------
13.1 Expenses. Except as set forth in Section 13.2 hereof or
--------
otherwise expressly set forth in this Agreement, 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 including, but not limited to, the costs and expenses incurred
pursuant to Article 5 hereof and the fees and disbursements of counsel and other
advisors.
13.2 Specific 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 paid in
equal shares by Buyers, on the one hand, and Seller on the other hand. Any
filing or grant fees imposed upon it by any governmental authority the consent
of which or the filing with which is required for the consummation of the
transactions contemplated hereby shall be paid in equal shares by Buyers, on the
one hand, and Seller on the other hand.
ARTICLE 14
24
DOCUMENTS TO BE DELIVERED AT CLOSING
------------------------------------
14.1 Seller's Documents. At the Closing, Seller shall deliver or
------------------
cause to be delivered to Buyers the following:
14.1.1 Certified resolutions of the Board of Directors of
Seller approving the execution and delivery of this Agreement and authorizing
the consummation of the transactions contemplated hereby;
14.1.2 A certificate of Seller, dated the Closing Date, in the
form described in Section 11.1.3;
14.1.3 Governmental certificates showing that Seller: (a) is
duly organized and in good standing in the State of Delaware; and (b) has filed
all returns, paid all taxes due thereon and is currently subject to no
assessment and is in good standing as a foreign corporation in the Commonwealth
of Pennsylvania, each certified as of a date not more than thirty (30) days
before the Closing Date;
14.1.4 Such certificates, bills of sale, assignments, documents
of title and other instruments of conveyance, assignment and transfer (including
without limitation any necessary consents to conveyance, assignment or transfer
required to be delivered hereunder), and lien releases, all in form reasonably
satisfactory to Buyers and Buyers' counsel, as shall be effective to vest in
Buyers good and marketable title in and to the Station Assets in accordance with
the terms of this Agreement, free, clear and unencumbered except for Permitted
Encumbrances, if any, as set forth on Schedule 7.7.
------------
14.1.5 An Assignment and Assumption Agreement in the form of
Exhibit C effectuating the assignment and assumption of the Assumed Liabilities
---------
(the "Assignment and Assumption Agreement");
14.1.6 At the time and place of Closing, originals and all
copies of all program, operations, transmission or maintenance logs and all
other records required to be maintained by the FCC with respect to the Station,
including the public files of the Station, shall be left at the Station and
thereby delivered to Buyers;
14.1.7 A written opinion of Seller's corporate and FCC counsel,
on which Buyers' lenders shall be entitled to rely, in a form reasonably
acceptable to Buyers, dated as of the Closing Date;
14.1.8 A Tower License Agreement in the form of Exhibit D (the
---------
"Tower License Agreement) executed by NMG;
14.1.9 The Antenna License Agreement executed by NMG, if
applicable; and
14.1.10 Such additional information, materials, agreements,
documents and
25
instruments as Buyers and their counsel may reasonably request in order to
consummate the Closing.
14.2 Buyers' Documents. At the Closing, Buyers shall deliver or
-----------------
cause to be delivered to Seller the following:
14.2.1 Certified resolutions of the Board of Directors of
Buyers approving the execution and delivery of this Agreement and authorizing
the consummation of the transactions contemplated hereby;
14.2.2 A certificate of Buyers, dated the Closing Date, in the
form described in Section 12.1.3;
14.2.3 The Assignment and Assumption Agreement executed by RBI;
14.2.4 A written opinion of Buyers' corporate counsel in a form
reasonably acceptable to Seller, dated as of the Closing Date;
14.2.5 The Purchase Price in accordance with Section 3. 1
hereof;
14.2.6 The Tower License Agreement executed by RBI;
14.2.7 The Antenna License Agreement executed by RBI, if
applicable;
14.2.8 Governmental certificates showing that (a) Buyers are
duly organized and in good standing in the State of Delaware; and (b) RBI is in
good standing as a foreign corporation in the Commonwealth of Pennsylvania, each
certified as of a date not more than thirty (30) days before the Closing Date;
and
14.2.9 Such additional information, materials, agreements,
documents and instruments as Seller and its counsel may reasonably request in
order to consummate the Closing.
ARTICLE 15
SURVIVAL, INDEMNIFICATION, ETC.
------------------------------
15.1 Survival of Representations, Etc. It is the express intention
--------------------------------
and agreement of the parties to this Agreement that all covenants and agreements
(together, "Agreements") and all representations and warranties (together,
"Warranties") made by Buyers and Seller in this Agreement shall survive the
Closing (regardless of any knowledge, investigation, audit or inspection at any
time made by or on behalf of Buyers or Seller) for a period of twelve (12)
months from the Closing Date. The right of any party to recover Damages (as
defined in Section 15.2.1) pursuant to Section 15.2 shall not be affected by the
expiration of any Agreements and Warranties
26
as set forth herein, provided that notice of the existence of any Damages (but
not necessarily the fixed amount of any such Damages) has been given by the
indemnified party to the indemnifying party prior to such expiration.
15.2 Indemnification.
---------------
15.2.1 Seller shall defend, indemnify and hold harmless Buyers
from and against any and all losses, costs, damages, liabilities and expenses,
including reasonable attorneys' fees and expenses ("Damages") incurred by Buyers
arising out of or related to: (a) any breach of the Warranties given or made by
Seller in this Agreement; (b) any breach of the Agreements made by Seller in the
Agreement; (c) the Retained Liabilities; (d) any failure of the parties to
comply with any "bulk sales" laws applicable to the transactions contemplated
hereby; and (e) the conduct of the business and operations of the Station or any
portion thereof or the use or ownership of any of the Station Assets prior to
the Closing Date.
15.2.2 RBI shall defend, indemnify and hold harmless Seller
from and against any and all Damages incurred by Seller arising out of or
related to: (a) any breach of the Agreements and Warranties given or made by
Buyers in this Agreement; (b) the Assumed Liabilities, and (c) the conduct of
the business and operations of the Station or any portion thereof or the use or
ownership of any of the Station Assets on or after the Closing Date.
15.3 Procedures: Third Party and Direct Indemnification
--------------------------------------------------
Claims. The indemnified party agrees to give written notice within a reasonable
------
time to the indemnifying party of any demand, suit, claim or assertion of
liability by third parties or other circumstances that could give rise to an
indemnification obligation hereunder against the indemnifying party (hereinafter
collectively "Claims," and individually a "Claim"), it being understood that the
failure to give such notice shall not affect the indemnified party's right to
indemnification and the indemnifying party's obligation to indemnify as set
forth in this Agreement, unless the indemnifying party's ability to contest,
defend or settle with respect to such Claim is thereby demonstrably and
materially prejudiced. The parties also agree that any claim for Damages arising
directly between the parties relating to this Agreement may be brought at any
time within the applicable survival period specified in Section 15.1.
The obligations and liabilities of the parties hereto with respect to
their respective indemnities pursuant to Section 15.2 resulting from any Claim
shall be subject to the following additional terms and conditions:
15.3.1 The indemnifying party shall have the right to
undertake, by counsel or other representatives of its own choosing, the defense
or opposition to such Claim.
15.3.2 In the event that the indemnifying party shall elect not
to undertake such defense or opposition, or within ten (10) days after notice of
any such Claim from the indemnified party shall fail to defend or oppose, the
indemnified party (upon further written notice to the indemnifying party) shall
have the right to undertake the defense, opposition, compromise or settlement of
such Claim, by counsel or other representatives of its own choosing, on behalf
of and for the account and risk of the indemnifying party (subject to the right
27
of the indemnifying party to assume defense of or opposition to such Claim at
any time prior to settlement, compromise or final determination thereof).
15.3.3 Anything contained in this Section 15.3 to the contrary
notwithstanding: (a) the indemnified party shall have the right, at its own cost
and expense, to participate in the defense, opposition, compromise or settlement
of the Claim; (b) the indemnifying party shall not, without the indemnified
party's written consent, settle or compromise any Claim or consent to entry of
any judgment 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, and (c) in the event that the indemnifying
party undertakes defense of or opposition to any Claim the indemnified party, by
counsel or other representative of its own choosing and at its sole cost and
expense, shall have the right to consult with the indemnifying party and its
counsel or other representatives concerning such Claim and the indemnifying
party and the indemnified party, and their respective counsel or other
representatives, shall cooperate in good faith with respect to such Claim.
15.3.4 No undertaking of defense or opposition to a Claim shall
be construed as an acknowledgment by such party that it is liable to the party
claiming indemnification with respect to the Claim at issue or other similar
Claims.
15.3.5 Notwithstanding the provisions in Section 15.2, neither
Seller nor Buyers shall have the obligation to defend, indemnify and hold
harmless under Section 15.2.1(a) and 15.2.2(a) for breach of Warranties until
the aggregate Damages on account thereof exceed $50,000; provided, however, that
the aggregate amount of all Damages asserted by either Seller or Buyer under
Section 15.2 shall in no event exceed $250,000, except as otherwise set forth in
Sections 16.2 and 16.3 hereof.
ARTICLE 16
TERMINATION RIGHTS
------------------
16.1 Termination. This Agreement may be terminated at any time prior
-----------
to Closing as follows:
16.1.1 Upon the mutual written consent of Buyers and Seller,
this Agreement may be terminated on such terms and conditions as so agreed; or
16.1.2 By written notice of Buyers 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 notice of breach or
default served by Buyers or such longer period as provided in Section 17.1
hereof; or
16.1.3 By written notice of Seller to Buyers if either Buyer
breaches in any
28
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 notice of breach or default
served by Seller; or
16.1.4 By written notice of any party if any material condition
to the obligation to perform this Agreement of the party seeking to terminate
has not been satisfied or materially complied with by the Closing Date or the
date specified herein for such satisfaction or material compliance, and such
inaccuracy, failure of performance or non-satisfaction of or material compliance
with a condition, if capable of being cured, has not been cured within thirty
(30) days after written demand therefor, or has not been waived by the party
seeking to terminate this Agreement; or
16.1.5 By written notice of Buyers to Seller or by Seller to
Buyers if the FCC denies the FCC Application; or
16.1.6 By written notice of Buyers to Seller, or by Seller to
Buyers, if any court of competent jurisdiction shall have issued an order,
decree or ruling (which then remains in effect) or taken any other action
restraining, enjoining or otherwise prohibiting the transactions contemplated by
this Agreement; or
16.1.7 By written notice of Buyers to Seller, or by Seller to
Buyers, if the Closing shall not have been consummated on or before December 20,
2001; or
16.1.8 By written notice of Buyers to Seller if it shall become
apparent in both Seller's and Buyers' judgment reasonably exercised that any
condition to Buyers' obligation to close as set forth in Article 11 hereof will
not be satisfied on or before December 20, 2001; or
16.1.9 By written notice of Buyers to Seller under the
conditions set forth in Section 9.2 hereof.
Notwithstanding the foregoing, no party hereto may effect a
termination hereof if such party is in material default or breach of this
Agreement.
16.2 Liability. Except as set forth in Section 16.4 below, the
---------
termination of this Agreement under Section 16.1 shall not relieve any party of
any liability for breach of this Agreement prior to the date of termination.
16.3 Monetary Damages, Specific Performance and Other Remedies. The
---------------------------------------------------------
parties recognize that if Seller refuses to perform under the provisions of this
Agreement, monetary damages alone will not be adequate to compensate Buyers for
their injury. Buyers shall therefore be entitled to obtain specific performance
of the terms of this Agreement in addition to any other remedies, that may be
available to them. If any action is brought by Buyers to enforce this
Agreement, Seller shall waive the defense that there is an adequate remedy at
law. The prevailing party in any lawsuit for damages, specific performance, or
other remedy brought pursuant to this Agreement shall be entitled to
reimbursement by the other party of the
29
reasonable legal fees and expenses incurred by such prevailing party.
16.4 Seller's Liquidated Damages. As more fully described in the
---------------------------
Deposit Escrow Agreement, in the event this Agreement is terminated because of
Buyers' material breach of this Agreement, and all other conditions to Closing
are at such time satisfied or waived (other than such conditions as can
reasonably be satisfied by Closing), then the Escrow Deposit shall be delivered
to NMG, and the proceeds thereof shall constitute liquidated damages as to both
NMG and Licensee. It is understood and agreed that such liquidated damages
amount represents Buyers' and Seller's reasonable estimate of actual damages and
does not constitute a penalty. Recovery by NMG of liquidated damages shall be
the sole and exclusive remedy of both NMG and Licensee against Buyers for
failing to consummate this Agreement as a result of Buyers' material breach
hereof, and shall be applicable regardless of the actual amount of damages
sustained and all other remedies are deemed waived by both NMG and Licensee.
ARTICLE 17
MISCELLANEOUS PROVISIONS
------------------------
17.1 Risk of Loss. The risk of loss or damage to any of the Station
------------
Assets prior to the Closing Date shall be upon Seller. Subject to Buyers' right
to terminate this Agreement pursuant to Section 9.2 hereof, Seller shall repair,
replace and restore any such damaged or lost Station Asset to its prior
condition as soon as possible and in no event later than forty-five (45) days
following the loss or damage; provided, however, that in the event any such loss
or damage of the Station Assets exists on the Closing Date, then notwithstanding
any other provision hereto, Buyers at their option may extend the Closing Date
for a period of up to sixty (60) days until such time as Seller shall have
repaired, replaced and restored any such damaged or lost Station Asset to its
prior condition or deduct from the Purchase Price that amount which Buyers and
Seller reasonably determine to be sufficient to cover any such loss or damage
and close the transaction on the Closing Date.
17.2 Certain Interpretive Matters and Definitions. Unless the
--------------------------------------------
context otherwise requires: (a) all references to Sections, Articles, Schedules
or Exhibits are to Sections, Articles, Schedules or Exhibits of or to this
Agreement; (b) each term defined in this Agreement has the meaning assigned to
it; (c) each accounting term not otherwise defined in this Agreement has the
meaning assigned to it in accordance with generally accepted accounting
principles as in effect on the date hereof, (d) "or" is disjunctive but not
necessarily exclusive; (e) words in the singular include the plural and vice
versa; (f) the term "Affiliate" has the meaning given it in Rule 12b-2 of
Regulation 12B under the Securities Exchange Act of 1934, as amended; (g) all
references to "$" or dollar amounts will be to lawful currency of the United
States of America; and (h) the term "Seller" means not only NMG and Licensee
collectively but also each of NMG and Licensee separately.
17.3 Further Assurances. After the Closing, Seller shall from time
------------------
to time, at the request of and without further cost or expense to Buyers,
execute and deliver such other instruments of conveyance and transfer and take
such other actions as may reasonably be requested in order more effectively to
consummate the transactions contemplated hereby to vest
30
in Buyers good and marketable title to the Station Assets being transferred
hereunder in accordance with the terms hereof, and Buyers 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 more effectively to relieve Seller of any obligations
being assumed by Buyers hereunder.
17.4 Preservation of Records. Subject to Section 10.1 hereof, Buyers
-----------------------
hereby agree that they will preserve and make available to Seller and its
attorneys and accountants (including the right to inspect and copy at Seller's
cost), during normal business hours and upon reasonable advance notice, for
three (3) years after the Closing Date, such of the books, records, files,
correspondence, memoranda and other documents referred pursuant to this
Agreement as Seller may reasonably require for the preparation of tax reports
and returns, the preparation of financial statements, or the preparation of a
response to any claim by a third party against Seller.
17.5 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 not voluntarily or involuntarily
assign its interest under this Agreement without the prior written consent of
Buyers; provided, however, that no such consent shall be required if Seller
assigns its interest under this Agreement to NextMedia Licensing, Inc. pursuant
to Section 9.5(b) above. All covenants, agreements, statements,
representations, warranties and indemnities in this Agreement by and on behalf
of any of the parties hereto shall bind and inure to the benefit of their
respective successors and permitted assigns of the parties hereto. In the event
Buyers find it necessary or are required to provide to a third party a
collateral assignment of the Buyers' interest in this Agreement and/or any
related documents, Seller shall reasonably cooperate with the Buyers and any
third party requesting such assignment including but not limited to signing a
consent and acknowledgment of such assignment.
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 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 Commonwealth of Pennsylvania,
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, including
by facsimile, 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 or when dispatched by facsimile transmission (with the facsimile
transmission confirmation being deemed conclusive evidence of
31
such dispatch) and shall be addressed to the following addresses, or to such
other address as any party may request, in the case of Seller, by notifying
Buyers, and in the case of Buyers, by notifying Seller:
To Seller: NextMedia Group II, Inc.
0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx
Xxxxx 000-X
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xx. Xxxx Xxxxxx
Copy to: XXXXXXXXX AND ASSOCIATES, P.A.
0 XX 0/xx/ Xxxxxx
Xxxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
To Buyers: Regent Broadcasting of Erie, Inc.
c/o Regent Communications, Inc.
000 Xxxx XxxxxXxxxxx Xxxx.
0/xx/ Xxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xx. Xxxxx X. Xxxxxx
Copy to: XXXXXXX & XXXX
The Federal Reserve Building
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
17.10 Counterparts. This Agreement may be executed in two or more
------------
counterparts and by facsimile, each of which will be deemed an original and all
of which together will constitute one and the same instrument.
17.11 No Third Party Beneficiaries. Nothing herein expressed or
----------------------------
implied is intended or shall be construed to confer upon or give to any person
or entity other than the parties hereto and their successors or permitted
assigns any rights or remedies under or by reason of this Agreement.
17.12 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
32
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.
17.13 Entire Agreement. This Agreement and the schedules and
----------------
exhibits hereto embody the entire agreement and understanding of the parties
hereto and supersede any and all prior agreements, arrangements and
understandings relating to the matters provided for herein.
17.14 Authority. Buyers and Seller expressly acknowledge that the
----------
agents executing this Agreement on their behalf possess the full agency and
authority, both actual and apparent, to fully bind their respective principals
to this Agreement. Neither party shall assert or interpose any defense in any
proceeding, which defenses are hereby waived, that said agents did not possess
the legal authority and agency to bind their respective principals to this
Agreement.
17.15 Studio Facilities. For a period of ninety (90) days following
-----------------
the Closing (the "Transition Period"), Seller shall allow the Station to
continue its operations at its current studio location under Buyers' control to
provide Buyers with ample time to construct and equip new studios for the
Station at Buyers' own facilities. Buyers may operate the Station in its
current facilities in a manner substantially similar to the manner in which it
is currently operated, using all commercially reasonable efforts to minimize any
inconvenience to Seller. Buyers shall pay to NMG the Station's proportionate
allocation of all utility costs associated with Buyers' use of Seller's studio
and equipment during the Transition Period.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
REGENT BROADCASTING OF
ERIE, INC.
By:
--------------------------
Name:
-----------------------
Title:
----------------------
REGENT LICENSEE OF ERIE, INC.
By:
--------------------------
Name:
-----------------------
Title:
----------------------
NEXTMEDIA GROUP II, INC.
By:
--------------------------
Name:
-----------------------
Title:
----------------------
33
NEXTMEDIA LICENSING, INC.
By:
--------------------------
Name:
-----------------------
Title:
----------------------
34
