EXHIBIT 10.2
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of November _____, 2002, by and among RADIO UNICA OF DENVER LICENSE CORP., a
Delaware corporation ("LICENSEE"), RADIO UNICA OF DENVER, INC., a Delaware
corporation ("OPERATING COMPANY", and together with Licensee, the "SELLER"), and
NRC BROADCASTING, INC., a Delaware corporation ("BUYER").
WITNESSETH:
WHEREAS, Seller owns and operates radio station KCUV(AM), Englewood,
Colorado (the "Station") and Licensee holds certain licenses issued by the
Federal Communications Commission (the "FCC") with respect to the Station; and
WHEREAS, on the terms and conditions described herein, Seller desires to
sell and Buyer desires to acquire substantially all of the assets owned or
leased by Seller and used or useful in connection with the operation of the
Station;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter set forth, and for good and valuable
consideration, the receipt and adequacy of which is acknowledged by the parties,
the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE 1.
PURCHASE OF ASSETS
1.1 TRANSFER OF ASSETS. On the Closing Date (as hereinafter defined),
subject to the provisions hereof, Seller shall sell, assign, transfer and convey
to Buyer, and Buyer shall purchase from Seller, substantially all of the assets,
properties, interests and rights of Seller of whatsoever kind and nature, real
and personal, tangible and intangible, which are used or held for use in
connection with the operation of the Station (collectively, the "Station
Assets"), free and clear of all liens, encumbrances, debts, security interests,
mortgages, trusts, claims, pledges, conditional sales agreements, charges,
covenants, conditions or restrictions of any kind, except current taxes not yet
due and payable (collectively, "LIENS"). The Station Assets shall include,
without limitation, the following (but excluding the assets specified in Section
1.2 hereof and subject to the limitations otherwise set forth in this Section
1.1):
(a) All licenses, permits and other authorizations, including
applications with respect thereto, relating to the Station issued to Seller by
the FCC or any other governmental authority on or prior to the Closing Date,
together with renewals or modifications thereof, including, without limitation,
the licenses, permits, authorizations and applications identified on SCHEDULE
1.1(a) attached hereto (the licenses, permits, authorizations issued by the FCC
and applications pending before the FCC collectively are referred to herein as
the "FCC Licenses";
the FCC Licenses and the licenses, permits and other authorizations issued by
any other governmental authority collectively are referred to herein as the
"Station Licenses");
(b) All equipment, office furniture and fixtures, office materials
and supplies, inventory and other tangible personal property, together with any
additions thereto or replacements thereof made between the date hereof and the
Closing Date, and less any retirements or dispositions thereof made between the
date hereof and the Closing Date which are replaced with items of equal or
greater value, consisting solely of the property identified on SCHEDULE 1.1(b)
attached hereto (collectively, the "Tangible Personal Property");
(c) Seller's right, title and interest in and to the Seller's
contracts, agreements and operating leases (but excluding any agreement for
borrowed money, including any mortgage) written or oral, relating to the
operation of the Station and specifically identified on SCHEDULE 1.1(c) hereto,
together with all contracts, agreements and operating leases entered into or
acquired by Seller between the date hereof and the Closing Date which Buyer has
approved in writing before their execution, and in each case solely those
agreements which Buyer has agreed to assume in writing at the Closing (as
hereinafter defined) (collectively, the "Contracts");
(d) All of Seller's right, title and interest in and to the call
letters "KCUV(AM)" and all trademarks, trade names, service marks, franchises,
copyrights, including registrations and applications for registration of any of
them, jingles, logos and slogans used in the conduct of the business and
operation of the Station and either owned by Seller or licensed to Seller on the
date hereof, together with any associated goodwill and any additions thereto
between the date hereof and the Closing Date, including but not limited to those
described on SCHEDULE 1.1(d) attached hereto and excluding "Radio Unica" or any
phrase of which "Radio Unica" is a part (collectively, the "Intellectual
Property");
(e) All of Seller's right, title and interest in and to all of the
real property owned or leased by Seller in connection with the operation of the
Station, specifically including, without limitation, a certain 18 acre parcel of
owned real property used at the tower site facility for the Station (the "Tower
Site Property"), and a leased property used as the Station broadcast studio (the
"Studio Lease" or "Studio Property"), and all of Seller's ownership or leasehold
rights, in and to any buildings, fixtures, and improvements located thereon,
together with any additions thereto between the date hereof and the Closing
Date, including but not limited to those described on SCHEDULE 1.1(e) hereto
(collectively, the "Real Property"); and
(f) All files, records, and books of account relating to, or which
are located at the premises of, the Station, including, without limitation,
programming information and studies, technical information and engineering data,
news and advertising studies or consulting reports, marketing and demographic
data, lists of advertisers, promotional materials, filings with the FCC, copies
of all written contracts to be assigned hereunder, logs, the public inspection
file and copies of all software programs used in connection with the operation
of the Station.
1.2 EXCLUDED ASSETS. Notwithstanding anything to the contrary contained
herein, it is expressly understood and agreed that the Station Assets shall not
include the following assets along with all right, title and interest therein
(collectively, the "Excluded Assets"):
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(a) All cash, cash equivalents or similar type investments of Seller,
such as certificates of deposit, Treasury bills and other marketable securities
on hand and/or in banks, and all accounts receivable generated from broadcasts
by Seller prior to the Closing Date;
(b) All contracts or agreements to which Seller is a party that (i)
have been terminated in accordance herewith, (ii) have expired prior to the
Closing Date in the ordinary course of business, or (iii) Buyer has not assumed,
as further described in Sections 2.1 and 2.2 hereof;
(c) Seller's corporate seal, minute books, charter documents,
corporate stock record books and such other books and records relating to the
organization, existence or capitalization of Seller and duplicate copies of such
records conveyed to Buyer 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 the Station's operations;
(d) Contracts of insurance and all insurance proceeds or claims made
by Seller relating to property or equipment repaired, replaced or restored by
Seller prior to the Closing Date;
(e) Any and all claims made by Seller with respect to transactions
prior to the Closing Date and the proceeds thereof, except claims with respect
to obligations to be assumed by Buyer pursuant to Section 2.1 hereof;
(f) All other rights, interests or intangible assets of Seller which
are not specifically identified on SCHEDULE 1.1(b) or which are identified on
SCHEDULE 1.2(f);
(g) Any books and records relating to any of the foregoing, except to
the extent that Buyer wishes to make, at its expense, a duplicate copy of such
materials in order to facilitate its operation of the Station and conduct of its
business; and
(h) All tangible personal property disposed of in the ordinary course
of business as permitted under this Agreement.
ARTICLE 2.
ASSUMPTION OF OBLIGATIONS
2.1 ASSUMPTION OF OBLIGATIONS. Subject to the provisions of Section 2.2
and Section 3.4 hereof, on the Closing Date, Buyer shall assume and undertake to
pay, satisfy or discharge the liabilities and obligations of Seller arising or
to be performed on or after the Closing Date under the Contracts to be assumed
by Buyer and included on SCHEDULE 1.1(c) AND THE STUDIO LEASE, except
obligations which arise after the Closing Date as a result of a default by
Seller under any Contract or the Studio Lease prior to the Closing Date. All of
the foregoing assumed liabilities and obligations shall be referred to herein
collectively as the "Assumed Liabilities." In addition to the Assumed
Liabilities, Buyer shall also have the indemnification responsibilities set
forth in Section 12.3 hereof and Seller shall have the indemnification
responsibilities set forth in Section 12.2 hereof.
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2.2 RETAINED LIABILITIES. Except as set forth in Section 2.1 hereof,
Buyer expressly does not, and shall not, assume or be deemed to assume, under
this Agreement or otherwise by reason of the transactions contemplated hereby,
any liability, obligation, commitment, undertaking, expense or agreement of
Seller of any nature whatsoever, including any mortgage or other agreement for
borrowed money, whether known or unknown or absolute or contingent. All of such
liabilities and obligations shall be referred to herein collectively as the
"Retained Liabilities." Without limiting the generality of the foregoing, it is
understood and agreed that Buyer is not agreeing to assume, and shall not
assume, any liability or obligation of Seller to Seller's employees, including
without limitation any such liability or obligation in respect of wages,
salaries, bonuses, accrued vacation or sick pay.
ARTICLE 3.
CONSIDERATION
3.1 PURCHASE PRICE. In consideration for the sale, assignment, transfer
and conveyance of the Station Assets, at Closing Buyer shall pay the sum of
THREE MILLION THREE HUNDRED TWENTY FOUR THOUSAND DOLLARS ($3,324,000.00) (the
"PURCHASE PRICE") to Seller, plus or minus any adjustment to be made pursuant to
Section 3.4 hereof, such Purchase Price to be delivered to Seller at an account
designated by Seller by wire transfer of same day Federal funds, and Buyer shall
assume the Assumed Liabilities.
3.2 ESCROW DEPOSIT. Concurrently with the execution of this Agreement,
Buyer shall deliver to First Liberty National Bank, located in Washington, D.C.
(the "ESCROW AGENT"), the sum of Two Hundred Thousand Dollars ($200,000) to be
held as an xxxxxxx money deposit (the "XXXXXXX MONEY DEPOSIT") pursuant to an
Escrow Agreement of even date herewith (the "ESCROW AGREEMENT") in the form of
Exhibit A hereto. The Xxxxxxx Money Deposit shall be paid to Seller as partial
payment of the cash Purchase Price due at Closing to Seller, or shall be paid to
Seller as liquidated damages and Seller's sole recourse hereunder in the event
of a material breach of this Agreement by Buyer that causes the Closing not to
occur, but in all other events, the Xxxxxxx Money Deposit shall be released to
Buyer in accordance with the provisions of this Agreement. Notwithstanding any
other provision of this Agreement or the Escrow Agreement, Buyer shall have all
right, title and interest in the Xxxxxxx Money Deposit until (i) the Xxxxxxx
Money Deposit is paid to Seller as a portion of the Purchase Price on the
Closing Date pursuant to joint written escrow instructions of the parties to the
Escrow Agent, or (ii) Buyer has admitted in writing to a material breach of this
Agreement causing a Closing not to occur, and has executed and delivered a
written instruction to the Escrow Agent to deliver such funds to Seller, or
(iii) a court of competent jurisdiction has determined in a final and
non-appealable judgment that, due to Buyer's material breach of its obligations
under this Agreement causing the Closing not to occur, Seller is entitled to the
Xxxxxxx Money Deposit.
3.3 ALLOCATION OF PURCHASE PRICE. Buyer and Seller shall exercise their
best efforts to determine a mutually agreeable allocation of the Purchase Price
prior to Closing. In the event that Buyer and Seller shall be unable to mutually
agree upon the allocation by Closing, Buyer and Seller shall each select an
independent certified public accountant within ten (10) days after the Closing
and such independent certified public accountants shall within ten (10) days
select a third independent certified public accountant who shall make a
determination of the allocation within sixty (60) days after his or her
selection. Buyer and Seller agree that the allocation
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determined by their mutual agreement or otherwise by the independent certified
public accountant, as the case may be, shall be conclusive and binding on Buyer
and Seller for all purposes, including without limitation, reporting and
disclosure requirements of the Internal Revenue Service.
3.4 PRORATION OF INCOME AND EXPENSES
(a) Except as otherwise provided herein, all income and expenses
arising from Seller's ownership of the Station Assets to be conveyed hereunder
shall be prorated between Buyer and Seller in accordance with generally accepted
accounting principles as of 12:01 a.m., Mountain time, on the Closing Date (the
Adjustment Time), on the basis that all income and expenses which accrue prior
to the Adjustment Time are for the account of Seller, and all income and
expenses which accrue after the Adjustment Time are for the account of Buyer.
Such prorations shall include, without limitation, all real property, ad
valorem, and other property taxes (but excluding taxes arising by reason of the
transfer of the Station Assets as contemplated hereby, which, shall be paid as
set forth in Article 11 of this Agreement), utility charges, business and
license fees, music and other license fees currently paid by Seller, FCC
regulatory fees, and similar prepaid and deferred items attributable to the
ownership of the Station or the Station Assets. Revenues, expenses, taxes, costs
and liabilities earned or incurred in connection with particular programs and
announcements shall be allocated to the time of performance of such programs and
announcements without regard to the date of payment therefor. Salaries, wages,
sales commissions, fringe benefit accruals and termination or severance pay for
employees shall not be pro-rated but shall be the sole responsibility of Seller.
(b) The prorations and adjustments contemplated by this Section, 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 sixty (60) days of the Closing
Date. In the event of any disputes between the parties as to such adjustments,
the amounts not in dispute shall nonetheless be paid at such time and such
disputes shall be resolved by an independent certified public accountant
mutually acceptable to the parties, and the fees and expenses of such accountant
shall be paid one-half by Seller and one-half by Buyer. The decision of such
accountant shall be rendered within one hundred eighty (180) days after the
Closing and shall be conclusive and binding on the parties.
ARTICLE 4.
GOVERNMENTAL CONSENTS
4.1 FCC CONSENT. The transactions contemplated hereby are expressly
conditioned on and subject to the prior consent and approval of the FCC to
assignment of the FCC Licenses from Seller to Buyer ("FCC Consent") without the
imposition of any conditions on the assignment of the FCC Licenses which would
reasonably have a material adverse effect on the results of operations of Buyer
or the Station.
4.2 FCC APPLICATION. Within ten (10) days after execution of this
Agreement, each party shall prepare and execute its respective portion of an
application for FCC Consent ("FCC Application") from Seller to Buyer and Seller
shall promptly file the completed FCC Application with the FCC. The parties
shall thereafter prosecute the FCC Application with all reasonable
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diligence and otherwise use commercially reasonable efforts to obtain the grant
of the FCC Application as expeditiously as practicable (but no party shall have
any obligation to satisfy complainants or the FCC by taking any steps which
would have a material adverse effect on the results of operations of a party or
any affiliated entity). If the FCC Consent imposes any condition on a party
hereto, such party shall use commercially reasonable efforts to comply with such
condition; provided, however, that no party shall be required hereunder to
comply with any condition that would have a material adverse effect on the
results of operations of such party or any affiliated entity. 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, such party shall not be required to take any action which
would have a material adverse effect on the results of operations of such party
or any affiliated entity. Nothing in this Section 4.2 shall be construed to
limit a party's right to terminate this Agreement pursuant to Article 13 hereof.
ARTICLE 5.
CLOSING
5.1 CLOSING DATE. Except as otherwise mutually agreed upon by Seller and
Buyer, or as provided by Section 5.2, the consummation of the transactions
contemplated herein (the "Closing") shall occur within ten (10) days after
public notice of the grant of FCC Consent has occurred, on a date to be
designated by Buyer in a notice given in writing to Seller at least five (5)
days before such Closing is to occur. All actions taken at the Closing will be
considered as having been taken simultaneously and no such actions will be
considered to be completed until all such actions have been completed. The
parties shall enter into an Unwind Agreement at the Closing, in the form
attached hereto as SCHEDULE 5.1, providing for unwinding of the transactions
contemplated hereby, including return of the Purchase Price to Buyer and the
return of all Station Assets to Seller, in the event that the FCC Consent is
rescinded and an order is issued by the FCC, and has become effective, mandating
that the transaction be unwound, prior to Final Order, as defined below.
5.2 SPECIAL CLOSING CONDITION IN THE EVENT OF FCC PROCEEDINGS. In the
event that a petition to deny, petition for reconsideration, objection or other
proceeding before the FCC has been filed or instituted opposing the grant of FCC
Consent or seeking to prohibit consummation of the transactions contemplated by
this Agreement between the time of filing of the FCC Application and the Closing
Date as determined in Section 5.1 above (the "Special Condition"), Buyer may
elect to delay the Closing. In the event of such an election by Buyer, the
Closing shall take place on a date designated by Buyer at least five (5) days
before such Closing is to occur, but in no event later than that date five (5)
days after FCC Consent has become a Final Order. A "Final Order" shall be deemed
to have occurred on the date upon which the FCC Consent has not been reversed,
stayed, enjoined or set aside and with respect to which no timely request for
stay, reconsideration, review, rehearing or notice of appeal or determination to
reconsider or review is pending, and as to which the time for filing any such
request, petition, or notice of appeal or for review by the FCC, and for any
reconsideration, stay or setting aside by the FCC on its own motion or
initiative, has expired.
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5.3 CLOSING PLACE. The Closing shall be held at 10:00 AM at the offices
of Xxxx Xxxxxxx LLP, 2300 N Street NW, Washington, DC, or such other place as
the parties hereto may agree, or by mail.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
6.1 ORGANIZATION AND QUALIFICATION. The Licensee is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and is qualified to do business in the State of Colorado as a foreign
corporation. The Operating Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and is
qualified to business in the State of Colorado as a foreign corporation. Each
Seller has all necessary corporate power to carry on its business as it is now
being conducted.
6.2 AUTHORITY.
(a) Each Seller has all necessary corporate power and authority to
enter into this Agreement and all other agreements, documents, certificates and
instruments delivered or to be delivered hereunder by such Seller (this
Agreement and such other agreements, documents, certificates and instruments are
referred to herein collectively as the "Seller Documents"), to perform its
obligations thereunder, and to consummate the transactions contemplated thereby.
The execution and delivery of the Seller Documents by each Seller and the
consummation by each Seller of the transactions contemplated thereby have been,
or will be prior to the Closing, as the case may be, duly authorized by all
necessary corporate action on the part of each Seller. Each of the Seller
Documents has been, or at or prior to the Closing will be, as the case may be,
duly executed and delivered by Seller and constitutes, or will constitute at the
Closing, as the case may be, a valid and binding obligation of each Seller,
enforceable against such Seller in accordance with their respective terms.
(b) Except as set forth on SCHEDULE 6.2(b), the execution and
delivery by each Seller of the Seller Documents does not or will not, and the
consummation of the transactions contemplated thereby will not: (i) conflict
with, or result in a violation of, any provision of the Articles of
Incorporation or Bylaws of such Seller; (ii) constitute or result in a breach of
or default (or an event which with notice or lapse of time, or both, would
constitute a default) under, or result in the termination or suspension of, or
accelerate the performance required by, or result in a right of termination,
cancellation or acceleration of any Contract, or any other material agreement,
indenture, covenant, instrument, license or permit by which such Seller is
bound; (iii) create any Lien upon any of the Station Assets; or (iv) constitute,
or result in, a violation of any judgment, ruling, order, writ, injunction,
decree, statute, law, rule or regulation applicable to such Seller or any of its
properties or assets.
(c) Except for the FCC Consent, no consent, approval, order or
authorization of, notice to, or registration, declaration of filing with, any
governmental entity is necessary in connection with the execution and delivery
of the Seller Documents by Seller or the
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consummation of the transactions contemplated thereby by Seller, except for
filing of required documents with the FCC.
6.3 FCC LICENSES.
(a) SCHEDULE 1.1(a) hereto contains a true and complete list of the
FCC Licenses. Licensee is the authorized legal holder of the FCC Licenses. The
FCC Licenses are in full force and effect, unimpaired by any act or omission of
either Seller. The FCC Licenses are all of the licenses, permits or other
authorizations from federal governmental and regulatory authorities necessary to
the operation of the Station in the manner and to the full extent as such
operations are currently conducted and there are no conditions upon the FCC
Licenses except those conditions stated on the face thereof. No proceedings are
pending or threatened (other than proceedings applicable to the radio industry
as a whole) nor do any facts exist which may result in the revocation,
modification, non-renewal or suspension of any of the FCC Licenses, the denial
of any pending applications related to the FCC Licenses, the issuance of any
cease and desist order related to the FCC Licenses, the imposition of any
administrative actions by the FCC with respect to the FCC Licenses or which may
affect Buyer's ability to operate the Station in accordance with the FCC
Licenses and the existing rules, regulations and policies of the FCC (the "FCC
Rules").
(b) Except as disclosed on SCHEDULE 1.1(a) hereof, the Station and
its transmission facilities are operating in material compliance with the FCC
Licenses and the FCC Rules, and Seller shall take all steps reasonably necessary
to insure continued compliance therewith pending the Closing. Licensee has filed
with the FCC all material reports or applications (including payment of any fee,
fine or forfeiture due to the FCC as of date hereof) with respect to the FCC
Licenses and the Station. Seller has complied in all material respects with
applicable FCC Rules pertaining to (i) the Station's public file, and (ii) the
requirements to maintain logs and other records. All such files, logs, and
records required by the FCC are kept in good order and maintained at the
Station. Except as disclosed on SCHEDULE 1.1(a) hereof, the Station's tower and
transmitting facilities are in good repair and structurally sound, are currently
maintained and shall be maintained in accordance with good engineering practice
and all applicable FCC Rules, have correct monitoring points, and possess all
necessary lighting and markings to comply with applicable FCC Rules. If
required, the transmission towers are duly registered with the FCC and Federal
Aviation Administration. The Station is currently transmitting its broadcast
signal, and shall on the Closing Date be transmitting its broadcast signal, at
no less than ninety percent (90%) of its maximum authorized power.
6.4 TANGIBLE PERSONAL PROPERTY.
(a) SCHEDULE 1.1(b) hereto contains a true and complete list of the
Tangible Personal Property. The Tangible Personal Property which is leased is
identified as such on SCHEDULE 1.1(b). The Tangible Personal Property is all of
the tangible personal property necessary to operate the Station in the manner in
which it is presently operated. Seller (i) is the lawful owner of all of the
Tangible Personal Property it purports to own, (ii) has valid leasehold
interests in the Tangible Personal Property it purports to lease, and (iii) has
valid license rights (whether as a licensor or licensee) in the Tangible
Personal Property it purports to license, in all cases free and clear of any
Liens, except for Liens disclosed in SCHEDULE 1.1(b) attached hereto.
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Seller has delivered to Buyer a true, accurate and complete copy of each lease,
license or sublicense regarding any Tangible Personal Property leased, licensed
or sublicensed by Seller.
(b) Except as set forth on Schedule 1.1(b), as of the date hereof,
each item of Tangible Personal Property owned by Seller is in good repair and
condition, ordinary wear and tear excepted, and has been maintained in
accordance with industry practice.
6.5 CONTRACTS. SCHEDULE 1.1(c) hereto contains a true and complete list
of all Contracts that are to be conveyed to Buyer at the Closing. Seller is not
in violation or breach of, nor has Seller received in writing any claim or
threat that it has breached any of the terms and conditions of, any Contract.
Neither Seller nor any other party to any Contract is in default thereunder or
breach thereof. Seller has delivered to Buyer a true, accurate and complete copy
of each Contract, including all amendments, supplements or modifications thereto
or waivers thereunder. Except as set forth on SCHEDULE 1.1(c) or SCHEDULE 6.2(b)
attached hereto, neither the execution and delivery by Seller of this Agreement
nor the consummation by Seller of the transactions contemplated under this
Agreement requires the consent of any party to a Contract or any other agreement
or obligation of Seller, whether or not such agreement or obligation is to be
assigned to or assumed by Buyer, and any material Contract requiring consent to
assignment by a third party is identified on SCHEDULE 1.1(c) with an asterisk.
6.6 EMPLOYEE AND LABOR RELATIONS.
(a) Seller is not a party to any contract with any labor
organization, nor has Seller agreed to recognize any union or other collective
bargaining unit, nor has any union or other collective bargaining unit been
certified as representing any of Seller's employees. There are no organizational
efforts currently being made or threatened by or on behalf of any labor union
with respect to employees of Seller. There are no present or threatened work
stoppages or labor difficulties relating to the employees of Seller.
(b) Buyer shall have no obligation to employ any current employee of
Seller on or after the Closing Date and shall have no liability whatsoever with
respect to any Seller employee or employee pay, commission, or benefits.
6.7 COMPLIANCE WITH LAW. The Station Assets and the operation of the
Station are in material compliance with all applicable statutes, laws,
ordinances, regulations, rules or orders of any federal, state or local
government, department or agency, including, without limitation, energy,
environmental, public utility, zoning, building code, health, and employee
safety agencies.
6.8 BROKERS. Except for Xxxxxxx Xxxxxxxx, Inc. and Marconi/LMC, whose
fees will be paid at Closing by Seller, there is no broker or finder or other
person who would have any valid claim for a commission or brokerage in
connection with this Agreement or the transaction contemplated hereby as a
result of any agreement, understanding or action by Seller.
6.9 LITIGATION. Seller is not subject to any judgment, award, order,
writ, injunction, arbitration decision or decree with respect to or affecting
the Station or Station Assets. There is no third party claim, litigation,
proceeding or investigation pending or, to the best of Seller's knowledge,
threatened against Seller with respect to the Station in any federal, state or
local
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court, or before any administrative agency, arbitrator or other tribunal
authorized to resolve disputes. There is no third party claim, litigation,
proceeding or investigation pending or, to the best of Seller's knowledge,
threatened against Seller with respect to the Station, which might have a
material adverse effect upon the business, assets or condition, financial or
otherwise, of the Station or which seeks to enjoin or prohibit, or otherwise
questions the validity of, any action taken or to be taken in connection with
this Agreement.
6.10 NO UNDISCLOSED LIABILITIES. Other than trade payables arising in the
ordinary course of business which shall be paid and discharged by Seller within
thirty (30) days after the Closing Date, and except as set forth on SCHEDULE
6.10 hereof or disclosed on any other Schedule to this Agreement, Seller has no
debt, liability, or obligation of any kind, whether accrued, absolute,
contingent, inchoate or otherwise, and all such debts, liabilities or
obligations disclosed on any Schedule to this Agreement shall be either (i) an
express Assumed Liability pursuant to this Agreement, (ii) paid or discharged by
Seller on or before the Closing Date, or (iii) with respect to secured
obligations of Seller, all liens upon the Station Assets shall have been
released as of the Closing Date.
6.11 TRANSACTION FOR FAIR VALUE; SOLVENCY. Seller acknowledges and agrees
that the Purchase Price to be paid at Closing represents the "fair market value"
of the Station arrived at between a willing buyer and willing seller negotiating
at arms length not compelled to buy or sell except for fair value. No insolvency
proceedings of any character, including without limitation, bankruptcy,
receivership, reorganization, composition or arrangement with creditors,
voluntary or involuntary, affecting Seller or any of the Station Assets, are
pending or threatened, and Seller has not taken any action in contemplation of
or which would constitute the basis for the institution of such insolvency
proceedings.
6.12 REAL PROPERTIES
(a) SCHEDULE 1.1(e) attached hereto is a true and complete list of
all Real Property to be conveyed to Buyer at the Closing. The Real Property
constitutes the only real property required to operate the Station in the manner
it is presently operated.
(b) Seller holds good, marketable and insurable fee simple title to
the Tower Site Property, free and clear of all Liens, except for Liens described
in SCHEDULE 1.1(e) attached hereto, and easements, covenants and non-monetary
encumbrances granted in the ordinary course of business which do not interfere
in any material respect with the operation of the Station on the Tower Site
Property.
(c) Seller has valid leasehold interests in the Studio Property, free
and clear of all Liens, except for (i) rights of sublessees which are identified
on SCHEDULE 1.1(e), and (ii) Liens described in SCHEDULE 1.1(e) attached hereto.
Seller enjoys peaceful and undisturbed possession under the Studio Lease. To
Seller's knowledge, no other party to the Studio Lease is in default thereunder
or breach thereof, and the Studio Lease is valid and in full force and effect.
(d) None of the Real Property lies in an area which is, or, to the
knowledge of Seller, will be, subject to zoning, use, or building code
restrictions which would prohibit the continued use of such Real Property in the
radio broadcasting business, and no Real Property
10
lacks or shall as of the Closing Date lack dedicated access from a public right
of way. Except as disclosed on SCHEDULE 1.1(e), the Real Property and the
improvements constructed thereon, as well as the current uses thereof, conform
in all material respects with all restrictive covenants and with all applicable
zoning, environmental and building codes, laws, rules and regulations, including
"set back" restrictions. There are no pending or, to Seller's knowledge,
threatened condemnation proceedings relating to any Real Property.
(e) Any and all buildings, structures, fixtures, or other
improvements located on the Real Property and used in the operation of the
Station: (i) are structurally sound and free of material defect; (ii) have been
regularly maintained and are in good condition and repair, ordinary wear and
tear excepted; and (iii) are equipped with all necessary mechanical and
electrical facilities, and such equipment and facilities are in good working
order, condition and repair; and (iv) are located entirely within the boundaries
of such Real Property.
6.13 ENVIRONMENTAL MATTERS
(a) The term "Hazardous Materials" shall mean any substance,
material, liquid or gas defined or designated as hazardous or toxic (or by any
similar term) under any Environmental Law, including, without limitation,
petroleum products and friable materials containing more than one percent (1.0%)
asbestos by weight.
(b) "Environmental Law" shall mean any federal, state, or local law,
ordinance, order, rule, or regulation relating to pollution, protection of the
environment, or actual or threatened releases, discharges, or emissions into the
environment.
(c) The term "Environmental Condition" shall refer to any
contamination or damage to the environment caused by or relating to the use,
handling, storage, treatment, recycling, generation, transportation, release,
spilling, leaking, pumping, pouring, emptying, discharging, injection, escaping,
leaching, disposal, dumping or threatened release of Hazardous Materials by
Seller or its predecessors in interest. With respect to claims by employees,
Environmental Condition also includes the exposure of persons to Hazardous
Materials at a work place of Seller.
(d) The term "Environmental Noncompliance" shall mean any violation
of any Environmental Law.
(e) There are no investigations, inquiries, administrative
proceedings, actions, suits, claims, legal proceedings or any other proceedings
pending or, to the knowledge of Seller, threatened against Seller that involve,
or relate to, Environmental Conditions, Environmental Noncompliance or the
release, use or disposal of any Hazardous Materials on any Real Property.
(f) There are no Hazardous Materials being released, stored, used or
otherwise held on, under or about the Real Property, and there are no
underground storage tanks located on or under the Real Property. The Real
Property has been maintained by Seller in material compliance with all
Environmental Laws.
11
6.14 TAXES.
(a) Seller has paid or has made adequate provision (in accordance
with generally accepted accounting principles) for all Taxes (as hereinafter
defined) required to be paid by Seller.
(b) There are no pending or, to the knowledge of Seller, threatened,
investigations or claims against Seller for or relating to any liability in
respect of Taxes and, to the knowledge of Seller, no facts or circumstances
exist which indicate that any such, investigations or claims in respect of Taxes
may be brought or are under discussion with any governmental authorities.
(c) All Taxes required to be withheld by Seller on or before the date
hereof have been withheld and paid when due to the appropriate agency or
authority.
(d) For the purposes of this Agreement, "Taxes" and "Tax" shall mean
all taxes and any tax, including without limitation, all foreign, federal,
state, county and local income, sales, employment, profit, payroll, use, trade,
capital, occupation, property, excise, value added, unitary, withholding, stamp,
transfer, registration, recordation and license tax, taxes measured on or
imposed by net worth, and other taxes, levies, imposts, duties, deficiencies and
assessments, together with all interest, penalties and additions imposed with
respect thereto, including any transferee or secondary liability for taxes and
any liability for taxes in connection with, attributable to or arising as a
result of being a member of any affiliated, consolidated, combined or unitary
group.
6.15 INSURANCE. All of the Station Assets which are insurable in character
are insured against loss, including casualty, injury or damage to the full value
and extent and in the manner customary for properties and assets of that nature.
SCHEDULE 6.15 attached hereto set forth a list of all such insurance policies,
the scope and amounts of coverage for each such policy, and the date of renewal
or expiration.
6.16 NO OTHER AGREEMENTS TO SELL THE STATION. Seller has no legal
obligation, absolute or contingent, to any other person or firm to sell, assign,
or transfer the Station Assets (whether through a merger, reorganization or sale
of stock or otherwise) or to enter into any agreement with respect thereto.
6.17 DISCLOSURE. The representations and warranties of Seller herein or in
any document, exhibit, statement, certificate or schedule furnished by or on
behalf of Seller to Buyer as required by this Agreement do not contain nor will
contain any untrue statement of a material fact or omit or will omit to state
any material fact necessary in order to make the statements herein or therein,
in light of the circumstances under which they were made, not misleading in any
material respect.
12
ARTICLE 7.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
7.1 ORGANIZATION, STANDING AND POWER. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, is qualified to do business in the State of Colorado as a foreign
corporation, and has the necessary power to carry on its business as it is now
being conducted.
7.2 AUTHORITY.
(a) Buyer has all necessary power and authority to enter into this
Agreement and all other agreements, documents, certificates and instruments
delivered or to be delivered hereunder by Buyer (the "Buyer Documents"), to
perform its obligations thereunder and to consummate the transactions
contemplated thereby. The execution and delivery of the Buyer Documents by Buyer
and the consummation by Buyer of the transactions contemplated thereby have been
duly authorized by all necessary action on the part of Buyer. Each of the Buyer
Documents has been, or will be at the Closing, as the case may be, duly executed
and delivered by Buyer and constitutes, or will constitute at the Closing, as
the case may be, a valid and binding obligation of Buyer, enforceable against
Buyer in accordance with their respective terms.
(b) The execution and delivery by Buyer of the Buyer Documents does
not or will not, and the consummation of the transactions contemplated thereby
will not: (i) conflict with, or result in a violation of, any provision of the
Articles of Incorporation or Bylaws of Buyer; (ii) constitute or result in a
breach or default (or an event which with notice or lapse of time, or both,
would constitute a default) under, or result in the termination or suspension
of, or accelerate the performance required by, or result in a right of
termination, cancellation or acceleration of any contract, or any other material
agreement, indenture, covenant, instrument, license or permit by which such
Buyer is bound; or (iii) constitute, or result in, a violation of any judgment,
ruling, order, writ, injunction, decree, statute, law, rule or regulation
applicable to Buyer.
(c) Other than the FCC Consent, no consent, approval, order or
authorization of, notice to, or registration, declaration or filing with, any
governmental entity is necessary in connection with the execution and delivery
of any of the Buyer Documents by Buyer or the consummation by Buyer of the
transactions contemplated thereby, except filings with the FCC.
7.3 LITIGATION. There are no third party claims, actions, suits,
litigation, labor disputes, arbitrations, proceedings or investigations pending
or, to the knowledge of Buyer, threatened against Buyer relating to the
transactions contemplated by this Agreement.
7.4 QUALIFICATION. There are no facts relating to Buyer which, under the
Communications Act of 1934, as amended, or the existing FCC Rules, would
disqualify Buyer as an assignee of the FCC Licenses.
7.5 DISCLOSURE. The representations and warranties of Buyer herein or in
any document, exhibit, statement, certificate or schedule furnished by or on
behalf of Buyer to Seller
13
as required by this Agreement do not contain nor will contain any untrue
statement of a material fact or omit or will omit to state any material fact
necessary in order to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading in any material
respect.
7.6 COMPLIANCE WITH LAWS. To Buyer's knowledge, Buyer is not in material
violation of and has not received any notice asserting noncompliance by Buyer
with any applicable statute, law, rule or regulation, whether federal, state,
local or otherwise.
ARTICLE 8.
COVENANTS
8.1 OPERATION OF BUSINESS. Between the date of this Agreement and the
Closing Date, Seller shall:
(a) preserve and protect all of the Station Assets in good repair and
condition, normal wear and tear excepted;
(b) maintain the Station's books of account and records in the usual
and ordinary manner;
(c) not enter into any material agreement with respect to the
Station, the Station Assets or Seller, including any option or agreement to
sell, assign or transfer the Station or control of Seller to any other party;
(d) not take or permit any other action inconsistent with Seller's
obligations hereunder and the consummation of the transactions contemplated
hereby;
(e) maintain the insurance policies listed on SCHEDULE 6.15 in full
force and effect, with policy limits and scope of coverage not less than is
currently provided;
(f) satisfy all trade and barter obligations of the Station as of the
Closing Date;
(g) maintain and preserve Seller's rights under the Station Licenses,
operate the Station in accordance with the FCC Rules and the Station Licenses,
maintain the Station's public file in good order to the reasonable satisfaction
of Buyer, including placement therein of all required documents in relation to
the FCC Application, and timely file and prosecute any required extensions of
outstanding construction permits, applications or authorizations which may
expire prior to the Closing Date; and
(h) conduct the Station's business in the ordinary course consistent
with past practices or as required by this Agreement. By way of amplification
and not limitation, without the prior written consent of Buyer, which shall not
be unreasonably withheld, Seller shall not:
(i) enter into any agreement, contract or lease with an
aggregate liability of more than $5,000, unless cancelable
without penalty prior to the Closing Date;
14
(ii) place or allow to be placed on any of the Station Assets
any Lien;
(iii) sell or otherwise dispose of any Station Asset except in
accordance with Section 1.1;
(iv) commit any act or omit to do any act which will cause a
breach of any material Contract or terminate or fail to
renew any material Contract;
(v) violate in any material respect any law, statute, rule,
governmental regulation or order of any court or
governmental or regulatory authority (whether Federal,
State or local);
(vi) cause or permit by any act, or failure to act, any of the
Station Licenses to expire, be surrendered, adversely
modified, or otherwise terminated, or the FCC to institute
any proceedings for the suspension, revocation or adverse
modification of any of the Station Licenses, or fail to
prosecute with due diligence any pending applications to
the FCC; or
(vii) increase the salary, benefits or other compensation
payable to any Seller employee, except to the extent
consistent with existing practice.
8.2 NO OTHER BIDS. Seller shall not, and shall not authorize or permit
any officer, director or employee of Seller, or any investment banker, attorney,
accountant or other advisor or representative retained by Seller to, solicit,
initiate, encourage (including by way of furnishing information), endorse or
enter into any agreement with respect to, or take any other action to
facilitate, any inquiries or the making of any proposal that constitutes, or may
reasonably be expected to lead to, any proposal to purchase, directly or
indirectly, the Station. Upon a violation of this Section, in addition to any
other remedies available hereunder or at law, Buyer shall be entitled to
injunctive relief.
8.3 ACCESS TO INFORMATION. From the date hereof to the Closing Date,
Seller shall afford, and shall cause its respective officers, directors,
employees and agents to afford, to Buyer and the officers, employees and agents
of Buyer reasonable access at all reasonable times to Seller's officers,
employees, independent contractors, agents, properties, books, records and
contracts, and shall furnish Buyer all financial, operating and other data and
information as Buyer, through its respective officers, employees or agents, may
reasonably request.
8.4 CONFIDENTIALITY.
(a) Each party shall hold, and shall cause its officers, employees,
agents and representatives, including, without limitation, attorneys,
accountants, consultants and financial advisors who obtain such information to
hold, in confidence, and not use for any purpose other than evaluating the
transactions contemplated by this Agreement, any confidential information of
another party obtained through the investigations permitted hereunder, which for
the purposes hereof shall not include any information which (i) is or becomes
generally available to the public
15
other than as a result of disclosure by the party which alleges the information
is confidential or its affiliates, (ii) becomes available to a party on a
nonconfidential basis from a source, other than the party which alleges the
information is confidential or its affiliates, which has represented that such
source is entitled to disclose it, or (iii) was known to a party on a
nonconfidential basis prior to its disclosure to such party hereunder. If this
Agreement is terminated, each party shall deliver, and cause its officers,
employees, agents, and representatives, including, without limitation,
attorneys, accountants, consultants and financial advisors who obtain
confidential information of another party pursuant to investigations permitted
hereunder to deliver to such other party all such confidential information that
is written (including copies or extracts thereof), whether such confidential
information was obtained before or after the execution hereof.
(b) If a party or a person to whom a party transmits confidential
information of another party is requested or becomes legally compelled (by oral
questions, interrogatories, requests for information or documents, subpoena,
criminal or civil investigative demand or similar process) to disclose any of
such confidential information, such party or person will provide the other
applicable party with prompt written notice so that such party may seek a
protective order or other appropriate remedy or waive compliance with Section
8.4(a). If such protective order or other remedy is not obtained, or if the
applicable party waives compliance with Section 8.4(a), the party subject to the
request will furnish only that portion of such confidential information which is
legally required and will exercise its best efforts to obtain reliable assurance
that confidential treatment will be accorded such confidential information.
8.5 NOTIFICATION OF CERTAIN MATTERS.
(a) Seller shall give prompt notice to Buyer, and Buyer shall give
prompt notice to Seller, of: (i) any material inaccuracy in any representation
or warranty made by such party, or (ii) any failure of the party to comply with
or satisfy any material covenant, condition or agreement to be complied with or
satisfied by such party under this Agreement; provided, however, that no such
notification or failure to give notice shall affect the representations or
warranties or covenants or agreements of the parties or the conditions to the
obligations of the parties hereunder.
(b) Seller shall give prompt notice to Buyer, and Buyer shall give
prompt notice to Seller concerning any oral or written communication from the
FCC concerning the FCC Application.
8.6 CONSENTS AND APPROVALS. Seller shall obtain consent to this
transaction from each other party listed in SCHEDULE 6.2(b) and shall use
commercially reasonable efforts to obtain any and all other material consents,
transfers, authorizations, or approvals (and in the case of the Studio Lease, an
Estoppel Certificate in customary form executed by the landlord of the Studio
Lease property) required for the consummation of the transactions contemplated
by this Agreement other than the FCC Consent, which is governed by Section 4.2.
Buyer will cooperate with Seller in obtaining, and == providing all information
necessary to obtain, such consents.
8.7 EMPLOYEES. Seller hereby covenants that all employees of the Station
shall be terminable, without liability to Buyer, on and as of the Closing Date,
and that Buyer will have no
16
liability to any present or past employee of the Station for retirement,
pension, bonus, termination, vacation, or other pay, or for hospitalization,
major medical, life or other insurance or other employee benefits.
8.8 CONTROL OF STATION. Buyer shall not, directly or indirectly, control,
supervise or direct the operation of the Station. Subject to the covenants of
Seller contained herein, such operation, including complete control and
supervision of all Station programs, employees and policies, shall be the sole
responsibility of Seller.
8.9 NEWS RELEASES. Prior to the Closing Date, and except as required by
law, any news releases pertaining to the transactions contemplated hereby shall
be reviewed and approved by Buyer and Seller, or their respective
representatives, and shall be acceptable to them prior to the dissemination
thereof.
8.10 ENVIRONMENTAL AUDIT. Buyer may, at its own expense, retain a
qualified contractor to perform a Phase I environmental audit, and if
recommended by such contractor, a Phase II environmental audit with respect to
the Tower Site Property, such audits to be completed within thirty (30) days
from the date of this Agreement. Seller shall provide such contractor reasonably
detailed information about and access to the Tower Site Property for purposes of
such audit(s). Such environmental audit(s) shall confirm, in a manner reasonably
satisfactory to Buyer, either the absence of any Hazardous Materials from the
Tower Site Property, or the presence of Hazardous Materials in a state or
condition which does not violate any Environmental Laws, and that there are no
conditions existing at the Tower Site Property which could reasonably subject
Buyer to material damages, penalties or other remedial action under the
Environmental Laws. In the event that any audit discloses any material violation
of any Environmental Laws, Buyer shall be entitled to elect, upon written notice
to Sellers within ten (10) days after receipt of such audit, either to require
Sellers to undertake remedial action to correct such violation, or to terminate
this Agreement.
8.11 TITLE COMMITMENT. Seller shall obtain at its own expense and deliver
to Buyer within thirty (30) days of the date of this Agreement: (A) a
preliminary title report with respect to the Tower Site Property, issued by a
title insurance company acceptable to Buyer (the "TITLE COMPANY"), which
preliminary report shall contain a commitment (the "TITLE COMMITMENT") of the
Title Company to issue one or more (as appropriate) owner's title insurance
policies on ALTA Policies (each, a "TITLE POLICY") insuring the fee simple
interest of Buyer in the Tower Site Property; and (B) copies of all documents,
filings and information disclosed in the Title Commitment. The Title Commitment
shall not be subject to any material Liens other than Liens that will be
released at Closing. All standard exceptions which can be deleted by the use of
owner's or seller's affidavits are to be deleted from the Title Commitment and
Title Policies, and Seller shall cooperate with Buyer in executing and
delivering such instruments to the Title Company.
8.12 SURVEY. Seller shall permit Buyer to obtain at its own expense before
the Closing Date an as-built survey of the Tower Site Property (the "SURVEY").
17
ARTICLE 9.
CONDITIONS
9.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. The obligations of
Buyer to consummate the transactions contemplated by this Agreement are subject
to the fulfillment, prior to or at the Closing, of each of the following
conditions, except to the extent Buyer shall have waived in writing satisfaction
of such condition:
(a) The representations and warranties made by Seller in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and on the Closing Date as though such representations and
warranties were made on such date.
(b) Seller shall have performed and complied in all material respects
with all covenants, agreements, representations, warranties and undertakings
required by this Agreement to be performed or complied with by Seller prior to
the Closing.
(c) No governmental authority shall have enacted, enforced, issued or
entered any law, rule, regulation or order, including in connection with any
action or proceeding brought by a third party (not subsequently dismissed,
settled or otherwise terminated), which prohibits or invalidates the
transactions contemplated by this Agreement or any other Seller Document or
prevents, limits, restricts or impairs the ownership, use or operation of the
Assets or the Station Assets by Buyer, other than an action or proceeding
instituted by Buyer.
(d) Seller shall have delivered to Buyer all of the documents
required by Section 10.1 hereof.
(e) The FCC Consent shall be effective.
(f) Seller shall have obtained and delivered to Buyer all required
third-party consents to the assignment of all material Contracts (as identified
on Schedule 1.1(c)) to be conveyed hereunder and the Studio Lease, which
consents shall not have as a condition thereof any modifications to the terms
thereof or any payment by Buyer to consummate the assignment.
(g) Seller shall have obtained and delivered to Buyer the Title
Commitment.
(h) There shall not be any Liens on the Station Assets or any
financing statements of record with respect to Seller or the Station Assets
except those to be released at the Closing, and Seller shall have delivered to
Buyer lien search reports (the "Lien Search"), in form and substance
satisfactory to Buyer and dated no earlier than ten (10) days prior to the
Closing, reflecting the results of UCC, tax and judgment lien searches conducted
at Secretary of State offices of the State of Delaware, the State of Colorado,
and in the County Clerk's Office of Xxxxxxx County, Colorado.
(i) Buyer and Seller shall cooperate to obtain a legally dedicated
improved means of access to the Tower Site Property.
9.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. The obligations of
Seller to consummate the transactions contemplated by this Agreement are subject
to the fulfillment, prior
18
to or at the Closing, of each of the following conditions, except to the extent
Seller shall have waived in writing satisfaction of such condition:
(a) The representations and warranties made by Buyer in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and on the Closing Date as though such representations and
warranties were made on such date.
(b) Buyer shall have performed and complied in all material respects
with all covenants, agreements, representations, warranties and undertakings
required by this Agreement to be performed or complied with by it prior to the
Closing.
(c) No governmental authority shall have enacted, enforced, issued or
entered any law, rule, regulation or order, including in connection with any
action or proceeding brought by a third party, (not subsequently dismissed,
settled, or otherwise terminated) which prohibits or invalidates the
transactions contemplated by this Agreement or any other Buyer Document, other
than an action or proceeding instituted by Seller.
(d) The FCC Consent shall be effective.
(e) Buyer shall have delivered to Seller all of the documents
required by Section 10.2 hereof.
ARTICLE 10.
CLOSING DELIVERIES
10.1 SELLER'S DELIVERIES. At the Closing, Seller shall deliver or cause to
be delivered to Buyer the following:
(a) (i) a Xxxx of Sale for the Tangible Personal Property and
Intellectual Property;
(ii) an Assignment and Assumption of the Station Licenses;
(iii) an Assignment and Assumption of Contracts;
(iv) executed third party written consents to assignment of
each material Contract to be assumed by Buyer for which
such consent is required thereunder;
(v) an Assignment and Assumption of the Studio Lease;
(vi) a Consent executed by the landlord of the Studio Lease
property;
(vii) a Warranty Deed for the Tower Site Property;
(viii) the Title Commitment;
(ix) written consents from any party that is a Secured Party
identified on any UCC-1 Financing Statement of record with
respect to
19
Seller, the Station or Station Assets as shown on the Lien
Search, agreeing to amendment or termination of the Liens
evidenced thereby upon conditions set forth in such
consent;
(x) such instruments of amendment, termination or release of
Liens, all in form and substance reasonably satisfactory
to counsel for Buyer, as are necessary to vest in Buyer
good and marketable title in and to the Station Assets,
including the Real Property; and
(xi) a Joint Notice to Escrow Agent to release the Xxxxxxx
Money Deposit to Seller as payment of a portion of the
Purchase Price, executed by Seller.
(b) A certificate, executed by an officer of Seller certifying to the
fulfillment or satisfaction of the conditions set forth in Sections 9.1(a) and
(b). The delivery of such certificate shall constitute a representation and
warranty of Seller as to the statements set forth therein as of the Closing
Date.
(c) Updated Schedules to the Agreement reflecting any changes
necessary to render the certification contained in such certificate true and
accurate on the Closing Date.
(d) Resolutions of the Board of Directors of Seller authorizing the
execution, delivery and performance of the Seller Documents by Seller, certified
by the secretary of Seller, and a certificate of good standing from the State of
Delaware, and a certificate of good standing as a foreign corporation qualified
to do business in the State of Colorado from the Secretary of State of Colorado.
(e) An opinion of counsel to Seller in the form of Exhibit B hereto.
(f) The Lien Search.
(g) Such other documents to be delivered by Seller hereunder as are
reasonably necessary for Buyer to effectuate and document the transactions
contemplated hereby.
10.2 BUYER'S DELIVERIES. At the Closing, Buyer shall deliver or cause to
be delivered to Seller the following:
(a) The Purchase Price required under Section 3.1 hereof;
(b) The Assignment and Assumption of Station Licenses.
(c) The Assignment and Assumption of Contracts.
(d) The Assignment and Assumption of Studio Lease.
(e) The Joint Notice to Escrow Agent, executed by Buyer.
20
(f) A certificate, executed by an officer of Buyer, certifying to the
fulfillment or satisfaction by Buyer of the conditions set forth in Sections
9.2(a) and (b). The delivery of such certificate shall constitute a
representation and warranty of Buyer as to the statements set forth therein as
of the Closing Date.
(g) Resolutions of the Board of Directors of Buyer authorizing the
execution, delivery and performance of the Buyer Documents by Buyer, certified
by the secretary of Buyer, and a certificate of good standing from the State of
Delaware, and a certificate of good standing as a foreign corporation qualified
to do business in the State of Colorado from the Secretary of State of Colorado.
(h) All such documents and actions that are required pursuant to the
provisions of Section 5.2 hereof in the event that the Special Condition has
occurred;
(i) Such other documents to be delivered by Buyer hereunder as are
reasonably necessary for Seller to effectuate and document the transactions
contemplated hereby.
ARTICLE 11.
TRANSFER TAXES, FEES AND EXPENSES
11.1 EXPENSES. Except as set forth in Section 11.2 and 11.3 hereof, each
party hereto shall be solely responsible for all costs and expense incurred by
it in connection with the negotiation and preparation of the Agreement and the
transactions contemplated thereby.
11.2 TRANSFER TAXES AND SIMILAR CHARGES. Buyer shall each pay all fees for
recordation, transfer and documentary taxes, and any excise, sales or use taxes
imposed by reason of the transfer of the Station Assets in accordance with this
Agreement.
11.3 GOVERNMENTAL FILING OR GRANT FEES. The FCC Application fee and any
other filing or grant fees imposed by any governmental authority the consent of
which is required to the transactions contemplated hereby shall be borne equally
by Buyer and Seller.
ARTICLE 12.
INDEMNIFICATION
12.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this Agreement shall survive the Closing for a period of
eighteen months from the Closing Date. The right of any party to recover Damages
(as defined in Section 12.2 hereof) on any claim shall not be affected by the
termination of any representations and warranties as set forth above provided
that notice of the existence of such claim has been given by the Indemnified
Party (as hereinafter defined) to the Indemnifying Party (as hereinafter
defined) prior to such termination.
12.2 INDEMNIFICATION OF BUYER BY SELLER. Seller shall indemnify and hold
Buyer and its attorneys, affiliates, representatives, agents, partners,
successors or assigns harmless from and against any liability, loss, cost,
expense, judgment, order, settlement, obligation, deficiency, claim, suit,
proceeding (whether formal or informal), investigation, Lien or other damage,
including, without limitation, attorney's fees and expenses, (all of the
foregoing items for
21
purposes of this Agreement are referred to as "Damages" and are not limited to
matters asserted by third-parties against a party, but includes Damages incurred
or sustained by a party caused by breach or default by the other party),
resulting from, arising out of or incurred with respect to:
(a) A breach of any representation, warranty, covenant or agreement
of Seller contained herein, subject to notice of a claim being given before the
expiration of the applicable period specified in Section 12.1 hereof with
respect to the representations or warranties by Seller contained herein;
(b) The Retained Liabilities; or
(c) Any and all claims, liabilities or obligations of any nature,
absolute or contingent, relating to the business and operation of the Station
prior to the Closing Date.
12.3 INDEMNIFICATION OF SELLER BY BUYER. Buyer shall indemnify and hold
Seller and its respective attorneys, affiliates, representatives, agents,
officers, directors, successors or assigns, harmless from and against any
Damages resulting from, arising out of, or incurred with respect to:
(a) A breach of any representation, warranty, covenant or agreement
of Buyer contained herein, subject to notice of a claim being given before the
expiration of the applicable period specified in Section 12.1 hereof with
respect to the representations and warranties made by Buyer herein;
(b) The Assumed Liabilities; or
(c) Any and all claims, liabilities or obligations of any nature,
absolute or contingent, relating to the business and operation of the Station as
conducted by Buyer on and after the Closing Date.
12.4 PROCEDURES.
(a) Promptly after the receipt by any party (the "Indemnified Party")
of notice of (a) any claim or (b) the commencement of any action or proceeding
which may entitle such party to indemnification under this Section, such party
shall give the other party (the "Indemnifying Party") written notice of such
claim or the commencement of such action or proceeding and shall permit the
Indemnifying Party to assume the defense of any such claim, or any litigation or
proceeding resulting from such claim. The failure to give the Indemnifying Party
timely notice under this subsection shall not preclude the Indemnified Party
from seeking indemnification from the Indemnifying Party unless, and then only
to the extent, such failure has materially prejudiced the Indemnifying Party's
ability to defend the claim, litigation or proceeding. If such claim does not
arise from the claim of a third party, the Indemnifying Party shall have 30 days
after such notice to cure the conditions giving rise to such claim to the
Indemnified Party's satisfaction. Failure by the Indemnifying Party to notify an
Indemnified Party of its election to defend any such claim, litigation or
proceeding by a third party within 30 days after notice thereof shall have been
given to the Indemnifying Party shall be deemed a waiver by the Indemnifying
Party of its rights to defend such claim, litigation or proceeding.
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(b) If the Indemnifying Party assumes the defense of any such claim,
litigation or proceeding resulting therefrom with counsel reasonably acceptable
to the Indemnified Party, the Indemnifying Party shall take all steps necessary
in the defense or settlement of such claim, litigation or proceeding resulting
therefrom and hold the Indemnified Party harmless from and against any Damages
caused by or arising out of any settlement approved by the Indemnifying Party or
any judgment in connection with such claim, litigation or proceeding resulting
therefrom; however, the Indemnified Party may participate, at its expense, in
the defense of such claim, litigation or proceeding provided that the
Indemnifying Party shall direct and control the defense of such claim,
litigation or proceeding. The Indemnified Party shall cooperate and make
available all books and records reasonably necessary and useful in connection
with the defense. Except with the prior written consent of the Indemnified
Party, the Indemnifying Party shall not, in the defense of such claim, or any
litigation or proceeding resulting therefrom, consent to the entry of any
judgment (other than a judgment of dismissal on the merits without cost) or
enter into any settlement 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 Damages in respect of such claim, litigation or proceeding.
(c) If the Indemnifying Party shall not assume the defense of any
such claim, litigation or proceeding resulting therefrom, the Indemnified Party
may, but shall have no obligation to, defend against such claim, litigation or
proceeding in such manner as it may deem appropriate, and the Indemnified Party
may compromise or settle such claim, litigation or proceeding without the
Indemnifying Party's consent. Within 30 days of written request, the
Indemnifying Party shall promptly reimburse the Indemnified Party for the amount
of all Damages incurred by the Indemnified Party in connection with the defense
against or settlement of such claim, litigation or proceeding. If no settlement
of the claim, litigation or proceeding is made, the Indemnifying Party shall
promptly reimburse the Indemnified Party for the amount of any judgment rendered
with respect to such claim, litigation or proceeding.
ARTICLE 13.
TERMINATION RIGHTS
13.1 TERMINATION. In addition to any termination rights provided for in
other sections of this Agreement, this Agreement may be terminated, by written
notice given by any party (provided such party is not then in material breach of
any of its representations, warranties, covenants or duties hereunder) to the
other party hereto, at any time prior to the Closing Date as follows, and in no
other manner.
(a) By mutual written consent of the parties;
(b) By either Buyer or Seller if a court of competent jurisdiction or
governmental, regulatory or administrative agency or commission shall have
issued an order, decree or ruling or taken any other action, in each case
permanently restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement and such order, decree, ruling or other action
shall have become final and nonappealable;
(c) By Buyer, if Seller fails to perform or breaches any of its
material representations, warranties, covenants or duties under this Agreement,
and Seller has not cured
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such failure to perform or breach within thirty (30) days after delivery of
written notice from Buyer, or pursuant to the provisions of Sections 14.1 hereof
("Seller's Breach");
(d) By Buyer, as specifically provided in Section 8.10 and Sections
14.1 and 14.2 hereof;
(e) By Seller, if Buyer fails to perform or breaches any of its
material obligations, representations, warranties, covenants or duties under
this Agreement, and Buyer has not cured such failure to perform or breach within
thirty (30) days after delivery of written notice from Seller ("Buyer's
Breach");
(f) By any party, if the FCC denies the FCC Application, or if the
FCC Application is designated for a hearing; or
(g) By any party, if the Closing has not occurred within seven (7)
months of the execution of this Agreement.
13.2 LIABILITY OF BUYER. Upon a termination of this Agreement (except for
reason of a Buyer's Breach) Buyer shall have no further liability hereunder and
shall be entitled to immediate return of the Xxxxxxx Money Deposit from the
Escrow Agent.
13.3 LIABILITY OF SELLER. Upon termination of this Agreement (except for
reason of a Seller's Breach), Seller shall not have any liability or obligation
hereunder, except that Seller shall immediately execute a Joint Notice to Escrow
Agent and deliver such notice to Escrow Agent, unless such termination is caused
by a Buyer's Breach.
13.4 LIQUIDATED DAMAGES FOR BUYER'S BREACH. Buyer and Seller agree that if
the Closing does not occur due to a Buyer's Breach as described in the
provisions of Section 13.1(e) above, Seller's sole and exclusive remedy under
Section 13.1(e) shall be the right of Seller to claim and be paid the Xxxxxxx
Money Deposit. The parties agree that the liquidated damages provided in this
Section are intended to limit the claims that Seller may have against Buyer in
the circumstances described herein, and that the liquidated damages provided
herein bear a reasonable relationship to the anticipated harm which would be
caused by a Buyer's Breach. The parties further acknowledge and agree that the
amount of actual loss caused by Buyer's Breach is difficult to estimate with
precision and that Seller would not have a convenient and adequate alternative
to liquidated damages hereunder.
13.5 SPECIFIC PERFORMANCE AS REMEDY FOR SELLER'S BREACH. Seller
acknowledges and agrees that the Station Assets are unique assets not readily
available on the open market, and in the event Seller shall fail to perform its
obligations to consummate the transactions contemplated hereby, money damages
alone cannot adequately compensate Buyer for its injury. In the event a court of
competent jurisdiction finds that Seller has failed to perform its obligations
under this Agreement and such finding is no longer subject to appeal, Buyer
shall be entitled to specific performance of this Agreement and of Seller's
obligation to consummate the transaction contemplated hereby, and Seller shall
waive any and all defenses that Buyer has an adequate remedy at law.
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ARTICLE 14.
DAMAGE TO STATION ASSETS
14.1 RISK OF LOSS. The risk of loss to any of the Station Assets on or
prior to the Closing Date shall be upon Seller. Seller shall use all
commercially reasonable efforts to repair or replace any damaged or lost Station
Assets, provided, however, that in the event that Station Assets with a value of
greater than One Hundred Thousand Dollars ($100,000) are damaged or lost as of
the date otherwise scheduled for Closing, Buyer may, at its option, either (i)
postpone Closing for a period of up to sixty (60) days while Seller repairs or
replaces such Station Assets, or (ii) elect to close with the Assets in their
current condition, in which case Seller shall assign all proceeds from insurance
on such lost or damaged Station Assets to Buyer, and Buyer shall have the
responsibility to repair or replace the Station Assets, or (iii) terminate this
Agreement without penalty on written notice to Seller. Seller shall have no
responsibility to repair or replace damaged or destroyed Station Assets not
covered by insurance if the cost of such repair exceeds One Hundred Thousand
Dollars ($100,000), provided, however, that should Seller not advise Buyer
within five (5) days after being requested to do so that Seller will repair or
replace such Station Assets, Buyer may terminate this Agreement without penalty
upon written notice to Seller.
14.2 TRANSMISSION DEFAULT. Should the Station (i) not operate for a period
in excess of seventy-two (72) consecutive hours, or (ii) not operate at more
than 90% of its maximum authorized power for a period of thirty (30) consecutive
days, or if the Station shall not be operating at more than 90% of its maximum
authorized power as of the scheduled Closing Date (either (i) or (ii) a
"Transmission Default"), and it is reasonably expected that the Transmission
Default could be remedied within a reasonable time, Buyer may either elect to
terminate this Agreement without penalty upon written notice to Seller or
postpone the Closing for a period of up to sixty (60) days while Seller attempts
to cure the Transmission Default condition, and if such cure occurs within such
sixty (60) day period, then the parties shall consummate the transaction at the
earliest practicable date thereafter.
ARTICLE 15.
MISCELLANEOUS PROVISIONS
15.1 BENEFIT AND ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. No party may voluntarily or involuntarily assign this
Agreement or any right or obligation hereunder without the prior written consent
of the other party.
15.2 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.
15.3 GOVERNING LAW; JURISDICTION; VENUE. This Agreement and the rights of
the parties hereto shall be governed, construed and interpreted in accordance
with the internal laws of the State of Delaware, without giving effect to the
choice of law principles thereof. Jurisdiction and venue for any action arising
from or in relation to this Agreement or any provision hereof shall be
exclusively in a state or federal court sitting in Denver, Colorado, and
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each party hereby submits to the jurisdiction of and venue in any such court as
the agreed exclusive jurisdiction and venue for any such action.
15.4 AMENDMENT. This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties hereto.
15.5 SEVERABILITY. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
15.6 CONSTRUCTION. The language used in this Agreement will be deemed to
be language chosen by the parties to express their mutual intent. In the event
an ambiguity or question of intent arises, this Agreement will be construed as
if drafted jointly by the parties, and no presumption or burden of proof will
arise favoring or disfavoring any person or entity by virtue of the authorship
of any of the provisions of this Agreement.
15.7 ATTORNEYS' FEES. Should any party hereto institute any action or
proceeding at law or in equity to enforce any provision of this Agreement,
including an action for declaratory relief, or for damages by reason of an
alleged breach of any provision of this Agreement, or otherwise in connection
with this Agreement, or any provision hereof, the prevailing party shall be
entitled to recover from the losing party or parties reasonable attorneys' fees
and costs for services rendered to the prevailing party in such action or
proceeding.
15.8 NOTICES. Unless applicable law requires a different method of giving
notice, any and all notices, demands or other communications required or desired
to be given hereunder by any party shall be in writing. Assuming that the
contents of a notice meet the requirements of the specific Section of this
Agreement which mandates the giving of that notice, a notice shall be validly
given or made to another party if served either personally or if transmitted by
facsimile or other electronic written transmission device or if sent by
overnight courier service, and if addressed to the applicable party as set forth
below. If such notice, demand or other communication is served personally,
service shall be conclusively deemed given at the time of such personal service.
If such notice, demand or other communication is given by overnight courier, or
electronic transmission, service shall be conclusively deemed given at the time
of confirmation of delivery. The addresses for the parties are as follows:
If to Buyer to:
NRC Broadcasting, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
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With a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxxxxx LLP
0000 X Xxxxxx XX
Xxxxxxxxxx, X.X. 00000
If to Seller to:
Radio Unica Corp.
0000 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxx Xxxxx
Any party hereto may change its or his address for the purpose of receiving
notices, demands and other communications as herein provided, by a written
notice given in the aforesaid manner to the other parties hereto.
15.9 ENTIRE AGREEMENT. This Agreement, the Schedules and Exhibits attached
hereto and the ancillary documents provided for herein, constitute the entire
agreement and understanding of the parties hereto relating to the matters
provided for herein and supersede any and all prior agreements, arrangements,
negotiations, discussions and understandings relating to the matters provided
for herein. All Exhibits and Schedules attached hereto or to be delivered in
connection herewith are incorporated herein by this reference.
15.10 WAIVERS. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the waiver.
15.11 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.
15.12 COUNTERPARTS. This Agreement and any ancillary document hereto may be
executed in counterpart signature pages, and each such counterpart signature
page shall constitute one and the same original signature page.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
NRC BROADCASTING, INC.
By:
---------------------------
Its:
----------------------------
RADIO UNICA OF DENVER LICENSE
CORP.
By:
---------------------------
Its:
----------------------------
RADIO UNICA OF DENVER, INC.
By:
---------------------------
Its:
----------------------------
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