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EXHIBIT 10.143
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ASSET PURCHASE AGREEMENT
BY AND BETWEEN
XXXXXX COMMUNICATIONS OF THE KEYS, INC.
AND
KEY CHAIN, INC.
FOR
RADIO STATIONS
WFKZ-FM, PLANTATION KEY, FLORIDA
WAVK-FM, MARATHON, FLORIDA
AND
WKRY-FM, KEY WEST, FLORIDA
DECEMBER 13, 1996
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TABLE OF CONTENTS
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SECTION 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Accounts Receivable" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assumed Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Consents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Escrow Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Escrow Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Consent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"FCC Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Final Order" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Intangibles" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Licenses" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Material Adverse Effect" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Real Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Tangible Personal Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"To the best knowledge of Seller" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2 PURCHASE AND SALE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Agreement to Sell and Buy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Excluded Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4 Payment of Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.5 Assumption of Liabilities and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3 REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1 Organization, Standing, and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.4 Governmental Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.5 Title to and Condition of Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.6 Title to and Condition of Tangible Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.7 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.8 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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3.9 Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.10 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.11 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.12 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.13 Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.14 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.15 Claims and Legal Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.16 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.17 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.18 Conduct of Business in Ordinary Course . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.19 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.20 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.21 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4 REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.1 Organization, Standing, and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.2 Authorization and Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.3 Absence of Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.4 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.5 Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.6 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.7 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5 OPERATIONS OF THE STATIONS PRIOR TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.2 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.3 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.4 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.5 Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.6 Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.7 Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.8 No Inconsistent Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.9 Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.10 Maintenance of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.11 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.12 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.13 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.14 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.15 Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.17 Financing Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.18 Programming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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5.19 Preservation of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.20 Collection of Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.21 Personnel Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6 SPECIAL COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.1 FCC Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.2 Control of the Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.3 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.5 Environmental Audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.6 Engineering Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.7 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.8 Sales Tax Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.9 Access to Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.10 Appraisal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.11 Studio Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.12 Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.13 C-2 Upgrade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.14 Notice of Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.15 Employment Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 7 CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT CLOSING . . . . . . . . . . . . . . . . . . . . . . 23
7.1 Conditions to Obligations of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.2 Conditions to Obligations of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 8 CLOSING AND CLOSING DELIVERIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.2 Deliveries by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.3 Deliveries by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 9 TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.1 Termination by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.2 Termination by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.3 Rights on Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.4 Escrow Deposit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; CERTAIN REMEDIES . . . . . . . . . . . 29
10.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
10.2 Indemnification by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
10.3 Indemnification by Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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10.4 Procedure for Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.5 Limitations on Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.6 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.7 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 11 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.1 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.2 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.4 Benefit and Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.5 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.6 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.8 Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.9 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.10 Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
11.11 Waiver of Compliance; Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
11.12 Press Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
11.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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LIST OF SCHEDULES
Schedule 2.2 -- Excluded Property
Schedule 2.5 -- Sales Commissions
Schedule 3.3 -- Consents
Schedule 3.4 -- Licenses
Schedule 3.5 -- Real Property
Schedule 3.6 -- Tangible Personal Property
Schedule 3.7 -- Contracts
Schedule 3.9 -- Intangibles
Schedule 3.10 -- Financial Matters
Schedule 3.11 -- Insurance Policies
Schedule 3.13 -- Employee Matters
Schedule 3.19 -- Transactions with Affiliates
Schedule 8.2(h) -- Form of Opinions of Seller's Counsel
Schedule 8.3(d) -- Form of Opinion of Buyer's Counsel
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is dated as of the 13th day of December,
1996, by and between Xxxxxx Communications of the Keys, Inc., a Florida
corporation ("Buyer"), and Key Chain, Inc., a Florida corporation ("Seller").
R E C I T A L S
A. Seller is the licensee of and owns and operates radio stations
WFKZ-FM, Plantation Key, Florida, WAVK-FM, Marathon, Florida, and WKRY-FM, Key
West, Florida (each individually, a "Station" and collectively, the
"Stations"), pursuant to licenses issued by the Federal Communications
Commission (the "FCC").
B. Seller desires to sell, and Buyer desires to buy, substantially
all the assets that are used or useful in the business or operations of the
Stations, for the price and on the terms and conditions set forth in this
Agreement.
A G R E E M E N T S
In consideration of the above recitals, which are incorporated herein
by reference, and of the mutual agreements and covenants contained in this
Agreement, Buyer and Seller, intending to be bound legally, agree as follows:
SECTION 1 DEFINITIONS
The following terms, as used in this Agreement, shall have the
meanings set forth in this Section:
"Accounts Receivable" means the rights of Seller to payment for the
sale of advertising or program time run on the Stations by Seller prior to the
Closing Date.
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Buyer under this Agreement, as specified in Section 2.1.
"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7
that are specifically designated on Schedule 3.7 as Contracts that are to be
assumed by Buyer upon its purchase of the Stations, (ii) any Contracts entered
into by Seller between the date of this
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Agreement and the Closing Date that Buyer agrees in writing to assume, and
(iii) time sales contracts entered into by Seller in compliance with Section
5.3.
"Closing" means the consummation of the purchase and sale of the
Assets pursuant to this Agreement in accordance with the provisions of Section
8.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to Buyer
or otherwise to consummate the transactions contemplated by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses,
and other agreements (including leases for personal or real property and
employment agreements), written or oral (including any amendments and other
modifications thereto) to which Seller is a party or which are binding upon
Seller and which relate to or affect the Assets or the business or operations
of the Stations, and (i) which are in effect on the date of this Agreement or
(ii) which are entered into by Seller between the date of this Agreement and
the Closing Date.
"Escrow Agent" means First Union National Bank of Florida.
"Escrow Agreement" means the Escrow Agreement dated as of the date
hereof among Buyer, Seller and the Escrow Agent.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the
assignment of the FCC Licenses to Buyer as contemplated by this Agreement.
"FCC Licenses" means all Licenses issued by the FCC to Seller in
connection with the business or operations of the Stations.
"Final Order" means an action by the FCC that has not been reversed,
stayed, enjoined, set aside, annulled, or suspended, and with respect to which
no requests are pending for administrative or judicial review, reconsideration,
appeal, or stay, and the time for filing any such requests, and the time for
the FCC to set aside the action on its own motion, have expired.
"Intangibles" means all copyrights, trademarks, trade names, service
marks, service names, licenses, patents, permits, jingles, proprietary
information, technical information and
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data, machinery and equipment warranties, and other similar intangible property
rights and interests (and any goodwill associated with any of the foregoing)
applied for, issued to, or owned by Seller or under which Seller is licensed or
franchised and which are used or useful in the business and operations of the
Stations, together with any additions thereto between the date of this
Agreement and the Closing Date.
"Licenses" means all licenses, permits, and other authorizations
issued by the FCC, the Federal Aviation Administration, or any other federal,
state, or local governmental authorities to Seller in connection with the
conduct of the business or operations of the Stations, together with any
additions thereto between the date of this Agreement and the Closing Date.
"Material Adverse Effect" means any materially adverse change in or
materially adverse effect on the business, assets, results of operations or
financial condition of any Station taken as a whole, or any event or
circumstance which could reasonably be expected to prevent or materially delay
the Closing.
"Purchase Price" means the purchase price specified in Section 2.3.
"Real Property" means all real property and interests in real
property, including fee estates, leaseholds and subleaseholds, purchase
options, easements, licenses, rights to access, and rights of way, and all
buildings and other improvements thereon, and other real property interests
which are used or useful in the business or operations of the Stations,
together with any additions thereto between the date of this Agreement and the
Closing Date.
"Tangible Personal Property" means all machinery, equipment, tools,
vehicles, furniture, leasehold improvements, office equipment, plant,
inventory, spare parts, and other tangible personal property which is used or
useful in the conduct of the business or operations of the Stations, together
with any additions thereto between the date of this Agreement and the Closing
Date.
"To the best knowledge of Seller" or any similar formulation thereof
means to the actual knowledge of Xxxx Day or Xxx Day after reasonable inquiry.
SECTION 2 PURCHASE AND SALE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and conditions
set forth in this Agreement, Seller hereby agrees to sell, transfer, and
deliver to Buyer on the Closing Date, and Buyer agrees to purchase, all of the
tangible and intangible assets used or useful in connection with the conduct of
the business or operations of the Stations, together with any additions thereto
between the date of this Agreement and the Closing Date, but excluding the
assets described in Section 2.2, free and clear of any claims, liabilities,
security interests,
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mortgages, liens, pledges, conditions, charges, or encumbrances of any nature
whatsoever (except for liens for current taxes not yet due and payable),
including the following:
(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Accounts Receivable as of 11:59 p.m., Miami time, on
the day prior to the Closing Date;
(f) The Intangibles and all intangible assets of Seller
relating to the Stations that are not specifically included within the
Intangibles, including the goodwill of the Stations, if any;
(g) To the extent not included in the Intangibles, all of
Seller's proprietary information, technical information and data, machinery and
equipment warranties, maps, computer discs and tapes, plans, diagrams,
blueprints, and schematics, including filings with the FCC relating to the
business and operation of the Stations;
(h) All choses in action of Seller relating to the Stations;
and
(i) All books and records relating to the business or
operations of the Stations, including executed copies of the Assumed Contracts,
and all records required by the FCC to be kept by the Stations.
2.2 Excluded Assets. The Assets shall exclude the following assets:
(a) Seller's cash on hand as of the Closing and all other
cash in any of Seller's bank or savings accounts; any insurance policies,
letters of credit, or other similar items and cash surrender value in regard
thereto; and any stocks, bonds, certificates of deposit and similar
investments;
(b) All books and records that Seller is required by law to
retain and that pertain to Seller's corporate organization;
(c) Any pension, profit-sharing, or employee benefit plans,
and any collective bargaining agreements;
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(d) All rights of Seller under this Agreement; and
(e) All property listed on Schedule 2.2 hereto.
2.3 Purchase Price. The Purchase Price for the Assets shall be THREE
MILLION FIVE HUNDRED THOUSAND DOLLARS ($3,500,000) adjusted as provided below:
(a) Prorations. The Purchase Price shall be increased or
decreased as required to effectuate the proration of expenses. All expenses
arising from the operation of the Stations, including business and license
fees, utility charges, real and personal property taxes and assessments levied
against the Assets, property and equipment rentals, applicable copyright or
other fees, sales and service charges, taxes (except for taxes arising from the
transfer of the Assets under this Agreement), FCC annual regulatory fees and
similar prepaid and deferred items, shall be prorated between Buyer and Seller
in accordance with the principle that Seller shall be responsible for all
expenses, costs, and liabilities allocable to the period prior to the Closing
Date, and Buyer shall be responsible for all expenses, costs, and obligations
allocable to the period on and after the Closing Date. Notwithstanding the
preceding sentence, there shall be no adjustment for, and Seller shall remain
solely liable with respect to, any Contracts not included in the Assumed
Contracts and any other obligation or liability not being assumed by Buyer in
accordance with Section 2.5.
(b) Manner of Determining Adjustments. Any adjustments
will, insofar as feasible, be determined and paid on the Closing Date, with
final settlement and payment by the appropriate party occurring no later than
ninety (90) days after the Closing Date or such other date as the parties shall
mutually agree upon. Seller shall prepare and deliver to Buyer not later than
five (5) days before the Closing Date a preliminary settlement statement which
shall set forth Seller's good faith estimate of the adjustments to the Purchase
Price under Section 2.3(a). The preliminary settlement statement (i) shall
contain all information reasonably necessary to determine the adjustments to
the Purchase Price under Section 2.3(a), to the extent such adjustments can be
determined or estimated as of the date of the preliminary settlement statement,
and such other information as may be reasonably requested by Buyer, and (ii)
shall be certified by Seller to be true and complete in all material respects
as of the date thereof.
2.4 Payment of Purchase Price. The Purchase Price, as adjusted,
shall be paid by Buyer to Seller at Closing by wire transfer of same-day funds
pursuant to wire instructions which shall be delivered by Seller to Buyer at
least two (2) days prior to the Closing Date.
2.5 Assumption of Liabilities and Obligations. As of the Closing
Date, Buyer shall (a) assume and undertake to pay, discharge, and perform all
obligations and liabilities of Seller under the Licenses and the Assumed
Contracts insofar as they relate to the time on and after the Closing Date, and
arise out of events related to Buyer's ownership of the Assets or
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its operation of the Stations on or after the Closing Date and (b) undertake
to pay all sales commissions with respect to the Accounts Receivable collected
after the Closing Date in accordance with the policy set forth on Schedule 2.5.
Buyer shall not assume any other obligations or liabilities of Seller,
including (i) any obligations or liabilities under any Contract not included in
the Assumed Contracts, (ii) any obligations or liabilities under the Assumed
Contracts relating to the period prior to the Closing Date, (iii) any claims or
pending litigation or proceedings relating to the operation of any Station
prior to the Closing, (iv) any obligations or liabilities arising under
capitalized leases or other financing agreements, (v) any obligations or
liabilities arising under agreements entered into other than in the ordinary
course of business, (vi) any obligations or liabilities of Seller under any
employee pension, retirement, health and welfare or other benefit plans or
collective bargaining agreements, (vii) any obligation to any employee of any
Station for severance benefits, vacation time, or sick leave accrued prior to
the Closing Date, and (viii) any obligations or liabilities caused by, arising
out of, or resulting from any action or omission of Seller prior to the
Closing, and all such obligations and liabilities shall remain and be the
obligations and liabilities solely of Seller.
SECTION 3 REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization, Standing, and Authority. Seller is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Florida. Seller has all requisite power and authority (i) to own,
lease, and use the Assets as now owned, leased, and used, (ii) to conduct the
business and operations of the Stations as now conducted, and (iii) to execute
and deliver this Agreement, the Escrow Agreement and the documents contemplated
hereby and thereby, and to perform and comply with all of the terms, covenants,
and conditions to be performed and complied with by Seller hereunder and
thereunder. Seller is not a participant in any joint venture or partnership
with any other person or entity with respect to any part of the operations of
the Stations or any of the Assets.
3.2 Authorization and Binding Obligation. The execution, delivery,
and performance of this Agreement and the Escrow Agreement by Seller have been
duly authorized by all necessary actions on the part of Seller and its
shareholder[s]. This Agreement and the Escrow Agreement have been duly
executed and delivered by Seller and constitute the legal, valid, and binding
obligations of Seller, enforceable against it in accordance with their
respective terms except as the enforceability of this Agreement and the Escrow
Agreement may be affected by bankruptcy, insolvency, or similar laws affecting
creditors' rights generally, and by judicial discretion in the enforcement of
equitable remedies.
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3.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents listed on Schedule 3.3, the execution, delivery, and performance of
this Agreement and the Escrow Agreement and the documents contemplated hereby
and thereby (with or without the giving of notice, the lapse of time, or both):
(i) do not require the consent of any third party, other than such consents the
failure of which to obtain would not have a Material Adverse Effect; (ii) will
not conflict with any provision of the Articles of Incorporation or Bylaws of
Seller; (iii) will not conflict with, result in a breach of, or constitute a
default under, any law, judgment, order, ordinance, injunction, decree, rule,
regulation, or ruling of any court or governmental instrumentality, other than
such conflicts, breaches and defaults that would not have a Material Adverse
Effect; (iv) will not conflict with, constitute grounds for termination of,
result in a breach of, constitute a default under, or accelerate or permit the
acceleration of any performance required by the terms of, any agreement,
instrument, license, or permit to which Seller is a party or by which Seller
may be bound, other than such conflicts, terminations, breaches, defaults and
accelerations that would not have a Material Adverse Effect; (v) will not
create any mortgage, lien, pledge or encumbrance of any nature whatsoever upon
any of the Assets; and (vi) to the best knowledge of Seller, will not create
any claim, liability, condition or charge of any nature whatsoever upon any of
the Assets.
3.4 Governmental Licenses. Schedule 3.4 includes a true and complete
list of the Licenses issued or granted to Seller by the FCC and FAA and, to the
best knowledge of Seller, each other governmental authority. Seller has
delivered to Buyer true and complete copies of the Licenses listed on Schedule
3.4 (including any amendments and other modifications thereto). The Licenses
listed on Schedule 3.4 have been validly issued, and Seller is the authorized
legal holder thereof. The Licenses listed on Schedule 3.4 comprise all of the
licenses, permits, and other authorizations required from any governmental or
regulatory authority for the lawful conduct of the business and operations of
the Stations in the manner and to the full extent they are now conducted,
except for such licenses, permits and other authorizations the failure of which
to obtain would not have a Material Adverse Effect. Except as specifically set
forth on Schedule 3.4, none of the Licenses listed on Schedule 3.4 is subject
to any restriction or condition that would limit the full operation of the
Stations as now operated. The Licenses listed on Schedule 3.4 are in full
force and effect, and the conduct of the business and operations of the
Stations is in accordance therewith. Seller has no reason to believe that any
of the Licenses listed on Schedule 3.4 would not be renewed by the FCC or other
granting authority in the ordinary course.
3.5 Title to and Condition of Real Property. Schedule 3.5 contains a
complete and accurate description of all Real Property and Seller's interests
therein (including street address, legal description, owner, and use and the
location of all improvements thereon). The Real Property listed on Schedule
3.5 comprises all real property interests necessary to conduct the business and
operations of the Stations as now conducted. Except as described in Schedule
3.5, Seller's interests in the Real Property are free and clear of all liens,
mortgages, pledges, covenants, easements, encroachments, leases, charges and
other claims
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and encumbrances, except liens for taxes not yet due and payable. With respect
to each leasehold or subleasehold interest included in the Real Property being
conveyed under this Agreement so long as Seller fulfills its obligations under
the lease therefor, Seller has enforceable rights to nondisturbance and quiet
enjoyment, and no third party holds any interest in the leased premises with
the right to foreclose upon Seller's leasehold or subleasehold interest. To
the best knowledge of Seller, all towers, guy anchors, and buildings and other
improvements included in the Assets are located entirely on the Real Property
listed in Schedule 3.5. All Real Property (including the improvements thereon)
(i) is in good condition and repair consistent with its present use, (ii) is
available for immediate use in the conduct of the business and operations of
the Stations, and (iii) to the best knowledge of Seller, complies with all
applicable building or zoning codes and the regulations of any governmental
authority having jurisdiction. Seller has full legal and practical access to
the Real Property. To the best knowledge of Seller, all easements,
rights-of-way, and real property licenses have been properly recorded in the
appropriate public recording offices.
3.6 Title to and Condition of Tangible Personal Property. Schedule
3.6 lists all material items of Tangible Personal Property. The Tangible
Personal Property listed on Schedule 3.6 comprises all material items of
tangible personal property necessary to conduct the business and operations of
the Stations as now conducted. Except as described in Schedule 3.6, Seller
owns and has good title to each item of Tangible Personal Property, and none of
the Tangible Personal Property owned by Seller is subject to any security
interest, mortgage, pledge, conditional sales agreement, or other lien or
encumbrance, except for liens listed on Schedule 3.6, which liens shall be
released at Closing, and liens for current taxes not yet due and payable. Each
item of Tangible Personal Property is available for immediate use in the
business and operations of the Stations. All items of transmitting and studio
equipment included in the Tangible Personal Property (i) have been maintained
in a manner consistent with generally accepted standards of good engineering
practice, and (ii) permit the Stations and any auxiliary broadcast stations
used in connection with the operation of the Stations to operate in accordance
with the terms of the FCC Licenses and the rules and regulations of the FCC,
and with all other applicable federal, state, and local statutes, ordinances,
rules, and regulations.
3.7 Contracts. Schedule 3.7 is a true and complete list of all
Contracts except contracts with advertisers for the sale of advertising time on
the Stations for cash at prevailing rates and which have not been prepaid and
which may be canceled by the Stations without penalty on not more than thirty
days' notice. Seller has delivered to Buyer true and complete copies of all
written Assumed Contracts, true and complete memoranda of all oral Assumed
Contracts (including any amendments and other modifications to such Assumed
Contracts), and a schedule summarizing Seller's obligations under trade and
barter agreements relating to the Stations. Other than the Contracts listed on
Schedule 3.7 and cash programming contracts, Seller requires no contract,
lease, or other agreement to enable it to
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carry on its business as now conducted. All of the Assumed Contracts are in
full force and effect, and are valid, binding, and enforceable in accordance
with their terms. There is not under any Assumed Contract any default by any
party thereto or any event that, after notice or lapse of time or both, could
constitute a default. Seller is not aware of any intention by any party to any
Assumed Contract (i) to terminate such contract or amend the terms thereof,
(ii) to refuse to renew the Assumed Contract upon expiration of its term, or
(iii) to renew the Assumed Contract upon expiration only on terms and
conditions which are more onerous than those now existing. Except for the need
to obtain the Consents listed in Schedule 3.3, Seller has full legal power and
authority to assign its rights under the Assumed Contracts to Buyer in
accordance with this Agreement, and such assignment will not affect the
validity, enforceability, or continuation of any of the Assumed Contracts.
3.8 Consents. Except for the FCC Consent provided for in Section 6.1
and the other Consents described in Schedule 3.3, no consent, approval, permit,
or authorization of, or declaration to or filing with any governmental or
regulatory authority, or, to the best knowledge of Seller, any other third
party is required (i) to consummate this Agreement and the transactions
contemplated hereby, (ii) to permit Seller to assign or transfer the Assets to
Buyer, or (iii) to enable Buyer to conduct the business and operations of the
Stations in essentially the same manner as such business and operations are now
conducted.
3.9 Intangibles. Schedule 3.9 is a true and complete list of all
Intangibles (exclusive of those listed in Schedule 3.4), all of which are valid
and in good standing and uncontested. Seller has delivered to Buyer copies of
all documents establishing or evidencing all Intangibles. To the best
knowledge of Seller, Seller is not infringing upon or otherwise acting
adversely to any trademarks, trade names, service marks, service names,
copyrights, patents, patent applications, know-how, methods, or processes owned
by any other person or persons, and there is no claim or action pending, or to
the knowledge of Seller threatened, with respect thereto. The Intangibles
listed on Schedule 3.9 comprise all intangible property interests necessary to
conduct the business and operations of the Stations as now conducted.
3.10 Financial Statements. Schedule 3.10 hereto contains true and
complete copies of Seller's unaudited financial statements including a balance
sheet as of September 30, 1996 and an income statement for the period ending
September 30, 1996 (collectively, the "Financial Statements"). The Financial
Statements have been prepared from the books and records of Seller, have been
prepared in accordance with generally accepted accounting principles
consistently applied and maintained throughout the periods indicated,
accurately reflect the books, records, and accounts of the Stations (which
books, records, and accounts are complete and correct), are complete and
correct in all material respects, and present fairly the financial condition of
the Stations as at their respective dates and the results of operations for the
periods then ended; provided, however, that the Financial Statements are
subject to normal year-end adjustments (which will not be material) and lack
footnotes. None of the Financial Statements understates the true costs and
expenses of conducting the
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business or operations of the Stations, fails to disclose any material
contingent liabilities, or inflates the revenues of the Stations.
3.11 Insurance. Schedule 3.11 is a true and complete list of all
insurance policies of Seller that insure any part of the Assets or the business
of the Stations. All policies of insurance listed in Schedule 3.11 are in full
force and effect. During the past three years, no insurance policy of Seller
on the Assets or the Stations has been canceled by the insurer and no
application of Seller for insurance has been rejected by any insurer.
3.12 Reports. All returns, reports, and statements that the Stations
are currently required to file with the FCC or with any other governmental
agency have been filed, except for such reports the failure of which to file
would not have a Material Adverse Effect, and all reporting requirements of the
FCC and other governmental authorities having jurisdiction over Seller and the
Stations have been complied with, except for such requirements the failure of
which to satisfy would not have a Material Adverse Effect. All of such
returns, reports, and statements are substantially complete and correct as
filed. Seller has timely paid to the FCC all annual regulatory fees payable
with respect to the FCC Licenses.
3.13 Personnel.
(a) Employees and Compensation. Schedule 3.13 contains a
true and complete list of all employees of the Stations, their job titles, date
of hire, current salary and date and amount of last salary increase. Except as
disclosed on Schedule 3.13, Seller does not have any employee benefit plans or
arrangements applicable to the employees of the Stations or any fixed or
contingent liabilities or obligations with respect to any person now or
formerly employed by Seller at the Stations, including any pension or thrift
plans, individual or supplemental pension or accrued compensation arrangements,
contributions to hospitalization or other health or life insurance programs,
incentive plans, bonus arrangements, and vacation, sick leave, disability and
termination arrangements or policies, including workers' compensation policies.
At Buyer's request, Seller will furnish Buyer with true and complete copies of
all applicable plan documents, trust documents, and insurance contracts with
respect to any plans and arrangements listed on Schedule 3.13. All employee
benefits and welfare plans or arrangements listed in Schedule 3.13 were
established and have been executed, managed and administered in accordance with
the Internal Revenue Code of 1986, as amended, the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and all other laws. Seller is not
aware of the existence of any governmental audit or examination of any of such
plans or arrangements or of any facts which would lead it to believe that any
such audit or examination is pending or threatened. No action, suit, or claim
with respect to any of such plans or arrangements (other than routine claims
for benefits) is pending or, to the knowledge of Seller, threatened, and Seller
possesses no knowledge of any facts which could give rise to any such action,
suit or claim;
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(b) Labor Relations. Seller is not a party to or subject to
any collective bargaining agreements with respect to any Station. Seller has
no written or oral contracts of employment with any employee of any Station,
other than those listed in Schedule 3.7. Seller has complied with all laws,
rules, and regulations relating to the employment of labor, including those
related to wages, hours, collective bargaining, occupational safety,
discrimination, and the payment of social security and other payroll related
taxes, except for such noncompliance that would not have a Material Adverse
Effect. Seller has not received any notice alleging that it has failed to
comply in any material respect with any such laws, rules, or regulations. No
controversies, disputes, or proceedings are pending or, to the best knowledge
of Seller, threatened, between Seller and any employee (singly or collectively)
of any Station. No labor union or other collective bargaining unit represents
or claims to represent any of the employees of any Station. To the best
knowledge of Seller, there is no union campaign being conducted to represent
employees of any Station or solicit cards from employees to authorize a union
to request a National Labor Relations Board certification election with respect
to any employees at any Station; and
(c) Liabilities. Seller has no liability of any kind to or
in respect of any employee benefit plan, including withdrawal liability under
Section 4201 of ERISA. Seller has not incurred any accumulated funding
deficiency within the meaning of ERISA or Section 4971 of the Internal Revenue
Code. Seller has not failed to make any required contributions to any employee
benefit plan. The Pension Benefit Guaranty Corporation has not asserted that
Seller has incurred any liability in connection with any such plan. No lien
has been attached and no person has threatened to attach a lien on any property
of Seller as a result of a failure to comply with ERISA.
3.14 Taxes. Seller has filed or caused to be filed all federal income
tax returns and all other federal, state, county, local, or city tax returns
which are required to be filed, and it has paid or caused to be paid all taxes
shown on those returns or on any tax assessment received by it to the extent
that such taxes have become due, or has set aside on its books adequate
reserves (segregated to the extent required by generally accepted accounting
principles) with respect thereto. There are no governmental investigations or
other legal, administrative, or tax proceedings pursuant to which Seller is or
could be made liable for any taxes, penalties, interest, or other charges, the
liability for which could extend to Buyer as transferee of the business of the
Stations, and no event has occurred that could impose on Buyer any transferee
liability for any taxes, penalties, or interest due or to become due from
Seller.
3.15 Claims and Legal Actions. Except for any FCC rulemaking
proceedings generally affecting the broadcasting industry or as noted on
Schedule 3.4, there is no claim, legal action, counterclaim, suit, arbitration,
governmental investigation or other legal, administrative, or tax proceeding,
nor any order, decree or judgment, in progress or pending, or, to the knowledge
of Seller, threatened, against or relating to Seller with respect
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to its ownership or operation of any Station or otherwise relating to the
Assets or the business or operations of any Station, nor does Seller know or
have reason to be aware of any basis for the same. In particular, but without
limiting the generality of the foregoing, except as noted on Schedule 3.4,
there are no applications, complaints or proceedings pending or, to the best
knowledge of Seller, threatened (i) before the FCC relating to the business or
operations of any Station other than rule making proceedings which affect the
radio broadcasting industry generally, (ii) before any federal or state agency
relating to the business or operations of any Station involving charges of
illegal discrimination under any federal or state employment laws or
regulations, or (iii) before any federal, state, or local agency relating to
the business or operations of any Station involving zoning issues under any
federal, state, or local zoning law, rule, or regulation.
3.16 Environmental Matters.
(a) Seller has complied in all material respects with all
laws, rules, and regulations of all federal, state, and local governments (and
all agencies thereof) concerning the environment, public health and safety, and
employee health and safety, and no charge, complaint, action, suit, proceeding,
hearing, investigation, claim, demand, or notice has been filed or commenced
against Seller in connection with its ownership or operation of the Stations
alleging any failure to comply with any such law, rule, or regulation;
(b) To the best knowledge of Seller, after due investigation,
Seller has no liability relating to its operation of the Stations (and there is
no basis related to the Seller's past or present operations, properties, or
facilities for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand against Seller giving rise
to any such liability) under any law, rule, or regulation of any federal,
state, or local government (or agency thereof) concerning release or threatened
release of hazardous substances, public health and safety, or pollution or
protection of the environment;
(c) To the best knowledge of Seller, after due investigation,
Seller has no liability relating to its operation of the Stations (and Seller
has not handled or disposed of any substance, arranged for the disposal of any
substance, or owned or operated any property or facility in any manner that
could form the basis for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand (under the common law or
pursuant to any statute) against Seller giving rise to any such liability) for
damage to any site, location, or body of water (surface of subsurface) from the
handling or disposal of any substance or for illness or personal injury
therefrom;
(d) To the best knowledge of Seller, after due investigation,
Seller has no liability relating to its operation of the Stations (and there is
no basis for any present or future charge, complaint, action, suit, proceeding,
hearing, investigation, claim, or demand against Seller giving rise to any such
liability) under any law, rule, or regulation of any
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federal, state, or local government (or agency thereof) concerning employee
health and safety;
(e) To the best knowledge of Seller, after due investigation,
Seller has no liability relating to its operation of the Stations (and Seller
has complied with the guidelines issued by the American National Standards
Institute concerning exposure of workers and the general public to radio
frequency radiation and has not exposed any employee to any other substance or
condition that could form the basis for any present or future charge,
complaint, action, suit, proceeding, hearing, investigation, claim, or demand
(under the common law or pursuant to statute) against Seller giving rise to any
such liability) for any illness or personal injury to any employee under any
law concerning radiofrequency radiation;
(f) In connection with its operation of the Stations, Seller
has obtained and been in compliance in all material respects with all of the
terms and conditions of all permits, licenses, and other authorizations which
are required under, and has complied in all material respects with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables which are contained in, all federal,
state, and local laws, rules, and regulations (including all codes, plans,
judgments, orders, decrees, stipulations, injunctions, and charges thereunder)
relating to public health and safety, worker health and safety, and pollution
or protection of the environment, including laws relating to emissions,
discharges, releases, or threatened releases of pollutants, contaminants, or
chemical, industrial, hazardous, or toxic materials or wastes into ambient air,
surface water, ground water, or lands or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling of pollutants, contaminants, or chemical, industrial, hazardous, or
toxic materials or wastes; and
(g) No pollutant, contaminant, or chemical, industrial,
hazardous, or toxic material or waste has ever been manufactured, buried,
stored, spilled, leaked, discharged, emitted, or released by Seller in
connection with its operation of the Stations.
3.17 Compliance with Laws. Seller has complied in all material
respects with the Licenses and all federal, state, and local laws, rules,
regulations, and ordinances applicable or relating to the ownership and
operation of the Stations. To the best knowledge of Seller, neither the
ownership or use of the properties of the Stations nor the conduct of the
business or operations of the Stations conflicts with the rights of any other
person or entity.
3.18 Conduct of Business in Ordinary Course. Since September 30, 1996,
Seller has conducted the business and operations of the Stations only in the
ordinary course and has not:
(a) Suffered any Material Adverse Effect;
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(b) Made any material increase in compensation payable or to
become payable to any of the employees of the Stations, or any bonus payment
made or promised to any employee of the Stations, or any material change in
personnel policies, employee benefits, or other compensation arrangements
affecting the employees of the Stations;
(c) Made any sale, assignment, lease, or other transfer of
any of the Stations' properties other than in the normal and usual course of
business with suitable replacements being obtained therefor;
(d) Canceled any debts owed to or claims held by Seller with
respect to the Stations, except in the normal and usual course of business;
(e) Suffered any material write-down of the value of any
Assets or any material write-off as uncollectible of any accounts receivable of
the Stations; or
(f) Transferred or granted any right under, or entered into
any settlement regarding the breach or infringement of, any license, patent,
copyright, trademark, trade name, franchise, or similar right, or modified any
existing right relating to the Stations.
3.19 Transactions with Affiliates. Except as disclosed on Schedule
3.19, Seller has not been involved in any business arrangement or relationship
relating to the Stations with any affiliate of Seller, and no affiliate of
Seller owns any property or right, tangible or intangible, which is used in the
business of the Stations. As used in this paragraph, "affiliate" has the
meaning set forth in Rule 12b-2 promulgated under the Securities and Exchange
Act of 1934.
3.20 Broker. Neither Seller nor any person acting on Seller's behalf
has incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement, except for a
commission payable by Seller to Media Venture Partners.
3.21 Full Disclosure. No representation or warranty made by Seller in
this Agreement or in 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 will omit to state any
material fact and required to make any statement made herein or therein not
misleading.
SECTION 4 REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
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4.1 Organization, Standing, and Authority. Buyer is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Florida. Buyer has all requisite power and authority to execute and
deliver this Agreement and the Escrow Agreement and the documents contemplated
hereby and thereby, and to perform and comply with all of the terms, covenants,
and conditions to be performed and complied with by Buyer hereunder and
thereunder.
4.2 Authorization and Binding Obligation. The execution, delivery,
and performance of this Agreement and the Escrow Agreement by Buyer have been
duly authorized by all necessary actions on the part of Buyer. This Agreement
and the Escrow Agreement have been duly executed and delivered by Buyer and
constitute the legal, valid, and binding obligations of Buyer, enforceable
against Buyer in accordance with their respective terms except as the
enforceability of this Agreement and the Escrow Agreement may be affected by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally
and by judicial discretion in the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents, the execution, delivery, and performance by Buyer of this Agreement
and the Escrow Agreement and the documents contemplated hereby and thereby
(with or without the giving of notice, the lapse of time, or both): (i) do not
require the consent of any third party; (ii) will not conflict with the
Articles of Incorporation or Bylaws of Buyer; (iii) will not conflict with,
result in a breach of, or constitute a default under, any law, judgment, order,
injunction, decree, rule, regulation, or ruling of any court or governmental
instrumentality; or (iv) will not conflict with, constitute grounds for
termination of, result in a breach of, constitute a default under, or
accelerate or permit the acceleration of any performance required by the terms
of, any agreement, instrument, license, or permit to which Buyer is a party or
by which Buyer may be bound, such that Buyer could not acquire or operate the
Assets.
4.4 Broker. Neither Buyer nor any person acting on Buyer's behalf
has incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement.
4.5 Qualification. Buyer is legally qualified under the
Communications Act of 1934, as amended, and the FCC's rules and regulations to
acquire the FCC Licenses and to operate the Stations.
4.6 Access Buyer has had reasonable opportunities to inspect the
Assets and to ask questions of and receive answers from persons acting on
behalf of Seller concerning the Assets and the transactions contemplated by
this Agreement.
4.7 Full Disclosure. No representation or warranty made by Buyer in
this Agreement or in any certificate, document, or other instrument furnished
or to be furnished
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by Buyer pursuant hereto contains or will contain any untrue statement of a
material fact, or omits or will omit to state any material fact and required to
make any statement made herein or therein not misleading.
SECTION 5 OPERATIONS OF THE STATIONS PRIOR TO CLOSING
5.1 Generally. Seller agrees that, between the date of this
Agreement and the Closing Date, Seller shall operate the Stations diligently in
the ordinary course of business in accordance with its past practices (except
where such conduct would conflict with the following covenants or with Seller's
other obligations under this Agreement), and in accordance with the other
covenants in this Section 5.
5.2 Compensation. Seller shall not increase the compensation,
bonuses, or other benefits payable or to be payable to any person employed in
connection with the conduct of the business or operations of the Stations,
except in accordance with past practices.
5.3 Contracts. Seller will not enter into any contract or commitment
relating to the Stations or the Assets, or amend or terminate any Contract (or
waive any material right thereunder), or incur any obligation (including
obligations relating to the borrowing of money or the guaranteeing of
indebtedness) that will be binding on Buyer after Closing, except for (a) cash
time sales agreements made in the ordinary course of business, (b) contracts
that do not involve obligations in excess of Ten Thousand Dollars ($10,000) in
the aggregate, and (c) contracts or commitments relating to the acquisition or
installation of facilities and equipment contemplated by the construction
authorization described in Section 7.1(h) (the "Construction Permit") that have
been approved in writing by Buyer, which approval shall not be unreasonably
withheld. Prior to the Closing Date, Seller shall deliver to Buyer a list of
all Contracts entered into between the date of this Agreement and the Closing
Date, together with copies of such Contracts.
5.4 Disposition of Assets. Seller shall not sell, assign, lease, or
otherwise transfer or dispose of any of the Assets, except where no longer used
or useful in the business or operations of the Stations or in connection with
the acquisition of replacement property of equivalent kind and value.
5.5 Encumbrances. Seller shall not create, assume or permit to exist
any claim, liability, mortgage, lien, pledge, condition, charge, or encumbrance
of any nature whatsoever upon the Assets, except for (i) conditions
specifically disclosed on Schedule 3.4, (ii) liens disclosed on Schedule 3.5
and Schedule 3.6, which shall be removed prior to the Closing Date, (iii) liens
for current taxes not yet due and payable, and (iv) mechanics' liens and other
similar liens, which shall be removed prior to the Closing Date.
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5.6 Licenses. Seller shall not cause or permit, by any act or
failure to act, any of the Licenses to expire or to be revoked, suspended, or,
except for the modification contemplated by the Construction Permit, modified,
or take any action that could cause the FCC or any other governmental authority
to institute proceedings for the suspension, revocation, or adverse
modification of any of the Licenses. Seller shall not fail to prosecute with
due diligence any applications to any governmental authority in connection with
the operation of the Stations.
5.7 Rights. Seller shall not waive any right relating to the
Stations or any of the Assets.
5.8 No Inconsistent Action. Seller shall not take any action that is
inconsistent with its obligations under this Agreement or that could hinder or
delay the consummation of the transactions contemplated by this Agreement.
5.9 Access to Information. Seller shall give Buyer and its counsel,
accountants, engineers, and other authorized representatives reasonable access
to the Assets and to all other properties, equipment, books, records,
Contracts, and documents relating to the Stations for the purpose of audit and
inspection, including inspections incident to the environmental study described
in Section 6.5 and the engineering study described in Section 6.6, and will
furnish or cause to be furnished to Buyer or its authorized representatives all
information with respect to the affairs and business of the Stations that Buyer
may reasonably request (including any financial reports and operations reports
produced with respect to the affairs and business of the Stations). Without
limiting the generality of the foregoing, Seller shall give Buyer and its
counsel, accountants and other authorized representatives reasonable access to
Seller's financial records and Seller's employees, counsel, accountants and
other representatives for the purpose of preparing and auditing such financial
statements as Buyer determines, in its sole judgment, are required or advisable
to comply with federal or state securities laws and the rules and regulations
of securities markets as a result of the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
5.10 Maintenance of Assets. Seller shall maintain all of the Assets
in good condition (ordinary wear and tear excepted), and use, operate, and
maintain all of the Assets in accordance with the terms of the FCC Licenses,
all rules and regulations of the FCC and generally accepted standards of good
engineering practice. Seller shall maintain inventories of spare parts and
expendable supplies at levels consistent with past practices. If any loss,
damage, impairment, confiscation, or condemnation of or to any of the Assets
occurs, Seller shall repair, replace, or restore the Assets to their prior
condition as represented in this Agreement as soon thereafter as possible, and
Seller shall use the proceeds of any claim under any insurance policy solely to
repair, replace, or restore any of the Assets that are lost, damaged, impaired,
or destroyed.
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5.11 Insurance. Seller shall maintain the existing insurance policies
on the Stations and the Assets.
5.12 Consents. Seller shall obtain the Consents and the estoppel
certificates described in Section 8.2(b), without any change in the terms or
conditions of any Contract or License that could be less advantageous to the
Stations than those pertaining under the Contract or License as in effect on
the date of this Agreement. Seller shall promptly advise Buyer of any
difficulties experienced in obtaining any of the Consents and of any conditions
proposed, considered, or requested for any of the Consents. Upon Buyer's
request, Seller shall cooperate with Buyer and use their best efforts to obtain
from the lessors under each Real Property lease such estoppel certificates and
consents to the collateral assignment of the lessee's interest under each such
lease as Buyer's lenders may reasonably request. Upon Buyer's request, Seller
shall use its reasonable best efforts to deliver to Buyer on or before the
Closing Date such certificates and confirmations to Buyer's lenders as Buyer
may reasonably request in connection with obtaining financing for the
performance of its payment obligations hereunder.
5.13 Books and Records. Seller shall maintain their books and records
relating to the Stations in accordance with past practices.
5.14 Notification. Seller shall promptly notify Buyer in writing of
any unusual or material developments with respect to the business or operations
of any Station.
5.15 Financial Information. Seller shall furnish to Buyer within
twenty (20) days after the end of each month ending between the date of this
Agreement and the Closing Date a statement of income and expense of the
Stations for the month just ended and such other financial information
(including information on payables and receivables) as Buyer may reasonably
request. All financial information delivered by Seller to Buyer pursuant to
this Section shall be prepared from the books and records of Seller in
accordance with generally accepted accounting principles consistently applied,
shall accurately reflect the books, records, and accounts of the Stations,
shall be complete and correct in all material respects, and shall present
fairly the financial condition of the Stations, as at their respective dates
and the results of operations for the periods then ended.
5.16 Compliance with Laws. Seller shall comply in all material
respects with all laws, rules, and regulations applicable or relating to the
ownership and operation of the Stations.
5.17 Financing Leases. Except for obligations assumed by Buyer
pursuant to Section 2.5, Seller will satisfy at or prior to Closing all
outstanding obligations under capital and financing leases with respect to any
of the Assets and obtain good title to the Assets leased
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by Seller pursuant to those leases so that those Assets shall be transferred to
Buyer at Closing free of any interest of the lessors.
5.18 Programming. Seller shall not make any material changes in the
broadcast hours or in the percentages of types of programming broadcast by the
Stations, or make any other material change in the Stations' programming
policies, except such changes as in the good faith judgment of the Seller are
required by the public interest.
5.19 Preservation of Business. Seller shall use its best efforts to
preserve the business and organization of the Stations and use its best efforts
to keep available to the Stations their present employees and to preserve the
audience of the Stations and the Stations' present relationships with
suppliers, advertisers, and others having business relations with them, to the
end that the business, operations, and prospects of the Stations shall be
unimpaired at the Closing Date. The ordinary and customary operating,
marketing, promotional, sales, and advertising practices of the Stations shall
be maintained.
5.20 Collection of Accounts Receivable. Seller shall collect the
accounts receivable of the Stations only in the ordinary course consistent with
their past practices and will not take any action designed or likely to
accelerate the collection of their accounts receivable.
5.21 Personnel Recommendations. Seller shall promptly notify Buyer as
personnel vacancies occur at the Stations and consider for employment all
personnel recommended by Buyer for such vacant positions.
SECTION 6 SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC Consent.
(a) The assignment of the FCC Licenses in connection with the
purchase and sale of the Assets pursuant to this Agreement shall be subject to
the prior consent and approval of the FCC; and
(b) Seller and Buyer shall promptly prepare an appropriate
application for the FCC Consent and shall file the application with the FCC
within five (5) business days of the execution of this Agreement. The parties
shall prosecute the application with all reasonable diligence and otherwise use
their best efforts to obtain a grant of the application as expeditiously as
practicable. Each party agrees to comply with any condition imposed on it by
the FCC Consent, except that no party shall be required to comply with a
condition if (1) the condition was imposed on it as the result of a
circumstance the existence of which does not constitute a breach by the party
of any of its representations, warranties, or covenants under this Agreement,
and (2) compliance with the condition would have a material adverse effect upon
it. Buyer and Seller shall oppose any requests for reconsideration or judicial
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review of the FCC Consent. If the Closing shall not have occurred for any
reason within the original effective period of the FCC Consent, and neither
party shall have terminated this Agreement under Section 9, the parties shall
jointly request an extension of the effective period of the FCC Consent. No
extension of the FCC Consent shall limit the exercise by any party of its
rights under Section 9.
6.2 Control of the Station. Prior to Closing, Buyer shall not,
directly or indirectly, control, supervise, direct, or attempt to control,
supervise, or direct, the operations of the Stations; such operations,
including complete control and supervision of all of the Stations' programs,
employees, and policies, shall be the sole responsibility of Seller until the
Closing.
6.3 Risk of Loss.
(a) The risk of any loss, damage, impairment, confiscation,
or condemnation of any of the Assets from any cause whatsoever shall be borne
by Seller at all times prior to the Closing; and
(b) If any damage or destruction of the Assets or any other
event occurs which (i) causes any Station to cease broadcasting operations for
a period of three (3) or more days or (ii) prevents in any material respect
signal transmission by any Station in the normal and usual manner and Seller
fails to restore or replace the Assets so that normal and usual transmission is
resumed within seven days of the damage, destruction or other event, Buyer, in
its sole discretion, may (x) terminate this Agreement forthwith without any
further obligations hereunder by providing to Seller written notice of
termination no later than ten (10) business days following the end of such
seven-day period, in which event all funds held by the Escrow Agent pursuant to
the Escrow Agreement, including all interest and other proceeds from the
investment of such funds, shall be immediately returned to Buyer, or (y) if
Buyer fails to provide written notice of termination within the specified
period, proceed to consummate the transaction contemplated by this Agreement
and complete the restoration and replacement of the Assets after the Closing
Date, in which event Seller shall deliver to Buyer all insurance proceeds
received in connection with such damage, destruction or other event.
6.4 Confidentiality. Except as necessary for the consummation of the
transaction contemplated by this Agreement, including Buyer's obtaining of
financing related hereto, and except as and to the extent required by law,
including, without limitation, disclosure requirements of federal or state
securities laws and the rules and regulations of securities markets, each party
will keep confidential any information obtained from the other party in
connection with the transactions contemplated by this Agreement. If this
Agreement is terminated, each party will return to the other party all
information obtained by the such party from the other party in connection with
the transactions contemplated by this Agreement.
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6.5 Environmental Audit. Buyer may, at its option and expense,
retain an environmental consultant to be selected by Buyer to perform a Phase I
environmental audit of the properties of the Stations, and such audit shall be
completed within 45 days of the date hereof. If such audit discloses any
material environmental hazard or material possibility of future liability for
environmental damages or clean-up costs, Buyer shall provide Seller with a copy
of the audit report within 50 days of the date hereof.
6.6 Engineering Study. Buyer may, at its option and expense, retain
an engineering firm to conduct a proof of performance study of the Stations and
to prepare a report on the Stations' compliance with customary engineering
practices and all applicable FCC rules, regulations, prescribed practices, and
technical standards. If such study discloses any material deficiencies in the
operations or equipment of the Stations, Buyer shall provide Seller with a copy
of the engineering report within 50 days of the date hereof.
6.7 Cooperation. Buyer and Seller shall cooperate fully with each
other and their respective counsel and accountants in connection with any
actions required to be taken as part of their respective obligations under this
Agreement, and Buyer and Seller shall execute such other documents as may be
necessary or desirable to the implementation and consummation of this
Agreement, and otherwise use their best efforts to consummate the transaction
contemplated hereby and to fulfill their obligations under this Agreement.
Notwithstanding the foregoing, Buyer shall have no obligation (i) to expend
funds to obtain any of the Consents or (ii) to agree to any adverse change in
any License or Assumed Contract to obtain a Consent required with respect
thereto.
6.8 Sales Tax Filings. Seller shall file such Florida sales tax
returns with respect to the Stations as required by applicable law and shall
concurrently deliver copies of all such returns to Buyer.
6.9 Access to Books and Records. Seller shall provide Buyer access
and the right to copy for a period of three (3) years from the Closing Date any
books and records relating to the Assets that are not included in the Assets.
Buyer shall provide Seller access and the right to copy for a period of three
(3) years from the Closing Date any books and records relating to the Assets
and delivered to Buyer at the Closing.
6.10 Appraisal. Buyer and Seller agree to allocate the Purchase
Price for tax and recording purposes in accordance with an appraisal to be
conducted by BIA Consulting, Inc. and paid for by Buyer.
6.11 Studio Option. Seller shall use its best efforts to enter into
prior to Closing an option to purchase the 12,000 square foot studio building
for Station WFKZ-FM for a purchase price of not more than $600,000 (the
"Option"). The Option shall be assignable by Seller to Buyer without the
consent of the landlord of such building and shall contain such
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other terms and conditions that are reasonably acceptable to Buyer. Upon the
Closing, Seller shall assign the Option to Buyer.
6.12 Employees.
(a) On or before the Closing Date, Buyer shall offer to
employ each individual listed on Schedule 3.13 upon such terms and conditions
as Buyer may elect in its sole discretion; provided, however, that the terms
and conditions governing Buyer's employment of Xxxx Day and Xxx Day shall be as
set forth in the Employment Agreements described in Section 6.15.
(b) In the event the Closing does not occur, neither Buyer
nor any of its affiliates will, directly or indirectly, offer employment to or
otherwise solicit any employee of Seller. This provision shall survive
notwithstanding the failure of the consummation of the transactions
contemplated hereby.
6.13 C-2 Upgrade. Following the grant by the FCC of the FCC Consent
and the Construction Permit, Buyer shall loan Seller an amount not to exceed
$50,000 (the "Construction Loan") for the reasonable and necessary expenses
required to purchase and construct the facilities authorized in the
Construction Permit. Seller agrees to execute and deliver to Buyer a promissory
note (the "Note") and such other documents as Buyer may reasonably request in
connection with the Construction Loan. Upon the Closing, Seller's obligation
to repay the Construction Loan shall be forgiven. In the event that the
Closing does not occur, Seller shall repay the Construction Loan in accordance
with the terms of the Note within ten (10) days following the termination of
this Agreement.
6.14 Notice of Developments. Buyer shall promptly notify Seller in
writing of (a) any material change in any of the information contained in
Buyer's representations and warranties contained in Section 4 of this Agreement
and (b) if and to the extent actually known by Buyer, any material breach by
Seller of Seller's representations or warranties in Section 3 of this
Agreement. Seller shall promptly notify Buyer in writing of (c) any material
change in any of the information contained in Seller's representations and
warranties contained in Section 3 of this Agreement and (d) if and to the
extent actually known by Seller, any material breach by Buyer of Buyer's
representations or warranties in Section 4 of this Agreement. If Seller fails
to cure any material breach of its representations or warranties within thirty
(30) days after Seller provides or receives written notice of such breach,
Buyer shall have thirty (30) days after the end of such 30-day cure period
within which to exercise any right Buyer may have under this Agreement as a
result of Seller's material breach. If Buyer fails to cure any material breach
of its representations or warranties within thirty (30) days after Buyer
provides or receives written notice of such breach, Seller shall have thirty
(30) days after the end of such 30-day cure period within which to exercise any
right Seller may have under this Agreement as a result of Buyer's
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material breach. If either Buyer or Seller shall fail to exercise its rights
after such thirty (30) day period, then the change or changes noted in the
written notice shall be deemed accepted and the rights of Buyer or Seller, as
the case may be, triggered by such written notice shall be deemed waived for
all purposes hereunder.
6.15 Employment Agreements. Buyer shall deliver to Seller, within a
reasonable period following the date hereof, draft Employment Agreements for
Xxxx Day and Xxx Day which shall contain the principal terms set forth in
paragraph 2(c) of the letter of intent dated October 29, 1996, between Key
Chain, Inc. and Xxxxxx Communications Corporation and such other terms that are
reasonably acceptable to Buyer, Xxxx Day and Xxx Day.
SECTION 7 CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT CLOSING
7.1 Conditions to Obligations of Buyer. All obligations of Buyer at
the Closing are subject at Buyer's option to the fulfillment prior to or at the
Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations and
warranties of Seller contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time;
(b) Covenants and Conditions. Seller shall have performed
and complied in all material respects with all covenants, agreements, and
conditions required by this Agreement to be performed or complied with by it
prior to or on the Closing Date;
(c) Consents. All Consents shall have been obtained and
delivered to Buyer without any adverse change in the terms or conditions of any
agreement or any governmental license, permit, or other authorization;
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Buyer of any conditions that need not be complied
with by Buyer under Section 6.1 hereof, Seller shall have complied with any
conditions imposed on them by the FCC Consent, and the FCC Consent shall have
become a Final Order;
(e) Governmental Authorizations. Seller shall be the holder
of all Licenses and there shall not have been any modification of any License
that could have a Material Adverse Effect. No proceeding shall be pending the
effect of which could be to revoke, cancel, fail to renew, suspend, or modify
adversely any License;
(f) Deliveries. Seller shall have made or stand willing to
make all the deliveries to Buyer set forth in Section 8.2;
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(g) Adverse Change. Between the date of this Agreement and
the Closing Date, there shall have been no Material Adverse Effect; and
(h) WAVK-FM. The FCC shall have authorized the modification
of the facilities of Station WAVK-FM to operate as a Class C-2 FM station
substantially in accordance with the operating parameters specified in the
pending application for construction permit filed by Seller on September 30,
1996 (File No. BPH-960930IF), and such authorization shall have become a Final
Order.
7.2 Conditions to Obligations of Seller. All obligations of Seller
at the Closing are subject at Seller's option to the fulfillment prior to or at
the Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations and
warranties of Buyer contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time;
(b) Covenants and Conditions. Buyer shall have performed and
complied in all material respects with all covenants, agreements, and
conditions required by this Agreement to be performed or complied with by it
prior to or on the Closing Date;
(c) Deliveries. Buyer shall have made or stand willing to
make all the deliveries set forth in Section 8.3; and
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Seller of any conditions that need not be complied
with by Seller under Section 6.1 hereof and Buyer shall have complied with any
conditions imposed on it by the FCC Consent.
SECTION 8 CLOSING AND CLOSING DELIVERIES
8.1 Closing.
(a) Closing Date. The Closing shall take place at 10:00 a.m.
on a date, to be set by Buyer on at least five (5) days' written notice to
Seller, that is (1) not earlier than the first business day after the FCC
Consent is granted, and (2) not later than ten (10) business days following the
date upon which the FCC Consent has become a Final Order, subject to the
satisfaction or waiver of all of the other conditions precedent to the holding
of the Closing. If Buyer fails to specify the date for the Closing pursuant to
the preceding sentence prior to the fifth day after the date upon which the FCC
Consent has become a Final Order, the Closing shall take place on the tenth
business day after the date upon which the FCC Consent has become a Final Order.
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(a) Closing Place. The Closing shall be held at the offices
of Dow, Xxxxxx & Xxxxxxxxx, PLLC, 0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000, or any other place that is agreed upon by Buyer and
Seller.
8.2 Deliveries by Seller. Prior to or on the Closing Date, Seller
shall deliver to Buyer the following, in form and substance reasonably
satisfactory to Buyer and its counsel:
(a) Transfer Documents. Duly executed warranty bills of
sale, deeds, motor vehicle titles, assignments, and other transfer documents
which shall be sufficient to vest good and marketable title to the Assets in
the name of Buyer, free and clear of all claims, liabilities, security
interests, mortgages, liens, pledges, conditions, charges or encumbrances,
except for liens for current taxes not yet due and payable and obligations
assumed by Buyer pursuant to Section 2.5;
(b) Estoppel Certificates. Estoppel certificates of the
lessors of all leasehold and subleasehold interests included in the Real
Property and estoppel certificates of contracting parties to those Assumed
Contracts listed in Schedule 3.7 that are designated to indicate that estoppel
certificates are required under this paragraph;
(c) Consents. A manually executed copy of any instrument
evidencing receipt of any Consent;
(d) Officer's Certificate. A certificate, dated as of the
Closing Date, executed on behalf of Seller by its President, certifying (1)
that the representations and warranties of Seller contained in this Agreement
are true and complete in all material respects as of the Closing Date as though
made on and as of that date; and (2) that Seller has in all material respects
performed and complied with all of its obligations, covenants, and agreements
set forth in this Agreement to be performed and complied with on or prior to
the Closing Date;
(e) Tax, Lien, and Judgment Searches. Results of a search
for tax, lien, and judgment filings in the Secretary of State's records of the
State of Florida, as well as the records of those counties in Florida in which
any of the Assets are located, such searches having been made no earlier than
fifteen days prior to the Closing Date;
(f) Licenses, Contracts, Business Records, Etc. Copies of
all Licenses, Assumed Contracts, blueprints, schematics, working drawings,
plans, projections, engineering records, and all available files and records
used by Seller in connection with their operations;
(g) Accounts Receivable. A complete and accurate list of the
Stations' Accounts Receivable as of a date no more than five (5) business days
prior to the Closing
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Date, including, with respect to each of the Accounts Receivable, the amount
number, date of issuance, name and address of account debtor, aggregate amount,
and balance due;
(h) Opinions of Counsel. Opinions of Seller's counsel dated
as of the Closing Date, substantially in the form of Schedule 8.2(h) hereto;
and
(i) Employment Agreements. The Employment Agreements
referred to in Section 6.15, duly executed by Xxxx and Xxx Day.
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer
shall deliver to Seller the following, in form and substance reasonably
satisfactory to Seller and their counsel:
(a) Purchase Price. The Purchase Price as provided in
Section 2.4;
(b) Assumption Agreements. Appropriate assumption agreements
pursuant to which Buyer shall assume and undertake to perform Seller's
obligations under the Licenses and Assumed Contracts insofar as they relate to
the time on and after the Closing Date;
(c) Officer's Certificate. A certificate, dated as of the
Closing Date, executed on behalf of Buyer by its Secretary, certifying (1) that
the representations and warranties of Buyer contained in this Agreement are
true and complete in all material respects as of the Closing Date as though
made on and as of that date, and (2) that Buyer has in all material respects
performed and complied with all of its obligations, covenants, and agreements
set forth in this Agreement to be performed and complied with on or prior to
the Closing Date;
(d) Opinion of Counsel. An opinion of Buyer's counsel dated
as of the Closing Date, substantially in the form of Schedule 8.3(d) hereto;
and
(e) Employment Agreements. The Employment Agreements
referred to in Section 6.15, duly executed by Buyer.
SECTION 9 TERMINATION
9.1 Termination by Seller. This Agreement may be terminated by
Seller and the purchase and sale of the Stations abandoned, if Seller is not
then in material default, upon written notice to Buyer, upon the occurrence of
any of the following:
(a) Conditions. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of Seller set
forth in this Agreement have not been satisfied or waived in writing by Seller;
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(b) Judgments. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that would
prevent or make unlawful the Closing;
(c) Upset Date. If the Closing shall not have occurred by
November 1, 1997; and
(d) Breach. Without limiting Seller's rights under the other
provisions of this Section 9.1, if Buyer has failed to cure any material breach
of any of its representations, warranties, or covenants under this Agreement
within thirty (30) days after Buyer received written notice of such breach from
Seller, and Seller shall have delivered to Buyer its termination notice no
later than thirty (30) days following the expiration of such 30-day cure
period.
9.2 Termination by Buyer. This Agreement may be terminated by Buyer
and the purchase and sale of the Stations abandoned, if Buyer is not then in
material default, upon written notice to Seller, upon the occurrence of any of
the following:
(a) Conditions. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of Buyer set
forth in this Agreement, other than the condition set forth in Section 7.1(h),
have not been satisfied or waived in writing by Buyer;
(b) Judgments. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that would
prevent or make unlawful the Closing;
(c) Upset Date. If the Closing shall not have occurred by
November 1, 1997;
(d) Interruption of Service. If any event shall have
occurred that (i) prevented signal transmission of any Station for a continuous
period of three days or (ii) caused any Station to operate at reduced power of
50 percent or more for a continuous period of fifteen days, and Buyer shall
have delivered to Seller its termination notice no later than thirty (30) days
following the end of such 3-day or 15-day period, as the case may be;
(e) Environmental Hazards. Buyer shall have notified Seller
of material environmental hazards or the material possibility of environmental
damages or clean-up costs, as indicated in the environmental audit described in
Section 6.5, within the 50-day period specified in Section 6.5, the cause
thereof shall not have been remedied within 30 days from the date that Seller
receives such notice from Buyer, and Buyer shall have delivered to Seller its
termination notice no later than thirty (30) days following the expiration of
such 30-day cure period;
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(f) Technical Deficiencies. Buyer shall have notified Seller
of material deficiencies in the operations or equipment of any Station, as
indicated in the engineering report described in Section 6.6, within the 50-
day period specified in Section 6.6, the cause thereof shall not have been
remedied within 30 days from the date that Seller receives such notice from
Buyer, and Buyer shall have delivered to Seller its termination notice no later
than thirty (30) days following the expiration of such 30-day cure period; and
(g) Breach. Without limiting Buyer's rights under the other
provisions of this Section 9.2, if Seller has failed to cure any material
breach of any of its representations, warranties, or covenants under this
Agreement within thirty (30) days after Seller received written notice of such
breach from Buyer, and Buyer shall have delivered to Seller its termination
notice no later than thirty (30) days following the expiration of such 30-day
cure period.
9.3 Rights on Termination. If this Agreement is terminated pursuant
to Section 9.1 or Section 9.2 and no party is in material breach of this
Agreement, the parties hereto shall not have any further liability to each
other with respect to the purchase and sale of the Assets. If this Agreement
is terminated by Seller due to Buyer's material breach of this Agreement, then
the payment to Seller of Three Hundred Fifty Thousand Dollars ($350,000)
pursuant to Section 9.4 below shall be liquidated damages and shall constitute
full payment and the exclusive remedy for any damages suffered by Seller by
reason of Buyer's material breach of this Agreement. Seller and Buyer agree in
advance that actual damages would be difficult to ascertain and that the amount
of Three Hundred Fifty Thousand Dollars ($350,000) is a fair and equitable
amount to reimburse Seller for damages sustained due to Buyer's material breach
of this Agreement. If this Agreement is terminated by Buyer due to Seller's
material breach of this Agreement, Buyer shall have all rights and remedies
available at law or equity; provided, however, that Buyer shall not be
permitted to recover damages against Seller in an amount in excess of the
Purchase Price.
9.4 Escrow Deposit. Buyer has deposited with the Escrow Agent the
sum of Three Hundred Fifty Thousand Dollars ($350,000) in accordance with the
Escrow Agreement. All such funds deposited with the Escrow Agent shall be held
and disbursed in accordance with the terms of the Escrow Agreement and the
following provisions:
(a) At the Closing, all amounts held by the Escrow Agent
pursuant to the Escrow Agreement, including any interest or other proceeds from
the investment of funds held by the Escrow Agent, shall be disbursed to or at
the direction of Buyer;
(b) If this Agreement is terminated pursuant to Section 9.1
or 9.2 and Buyer is not in material breach of this Agreement, all amounts held
by the Escrow Agent pursuant to the Escrow Agreement, including any interest or
other proceeds from the investment of funds held by the Escrow Agent, shall be
disbursed to or at the direction of Buyer; and
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(c) If this Agreement is terminated by Seller due to Buyer's
material breach of this Agreement, then all amounts held by the Escrow Agent
pursuant to the Escrow Agreement shall be disbursed to or at the direction of
Seller as liquidated damages under Section 9.3 above and any interest or other
proceeds from the investment of funds held by the Escrow Agent shall be
disbursed by the Escrow Agent to or at the direction of Buyer.
SECTION 10 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION;
CERTAIN REMEDIES
10.1 Representations and Warranties. All representations and
warranties contained in this Agreement shall survive the Closing for a period
of eighteen (18) months, except that the agreements of Buyer and Seller set
forth in Section 6.4 shall continue in full force and effect whether or not the
Closing occurs and without regard to any period of time. Any investigations by
or on behalf of any party hereto shall not constitute a waiver as to
enforcement of any representation, warranty, or covenant contained in this
Agreement. No notice or information delivered by Seller shall affect Buyer's
right to rely on any representation or warranty made by Seller or relieve
Seller of any obligations under this Agreement as the result of a breach of any
of their representations and warranties.
10.2 Indemnification by Seller. Notwithstanding the Closing, and
regardless of any investigation made at any time by or on behalf of Buyer or
any information Buyer may have, Seller hereby agrees to indemnify and hold
Buyer harmless against and with respect to, and shall reimburse Buyer for:
(a) Any and all losses, liabilities, or damages resulting
from any untrue representation, breach of warranty, or nonfulfillment of any
covenant by Seller contained in this Agreement or in any certificate, document,
or instrument delivered to Buyer under this Agreement, other than losses,
liabilities or damages resulting from any breach that is waived by Buyer
pursuant to Sections 6.14 and 9.2(d), (e), (f) and (g) hereof;
(b) Any and all obligations of Seller not assumed by Buyer
pursuant to this Agreement, including any liabilities arising at any time under
any Contract not included in the Assumed Contracts;
(c) Any loss, liability, obligation, or cost resulting from
the failure of the parties to comply with the provisions of any bulk sales law
applicable to the transfer of the Assets;
(d) Any and all losses, liabilities, or damages resulting
from the operation or ownership of any Station prior to the Closing, including
any liabilities arising under the Licenses or the Assumed Contracts which
relate to events occurring prior the Closing Date; and
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(e) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including reasonable legal fees
and expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
10.3 Indemnification by Buyer. Notwithstanding the Closing, and
regardless of any investigation made at any time by or on behalf of Seller or
any information Seller may have, Buyer hereby agrees to indemnify and hold
Seller harmless against and with respect to, and shall reimburse Seller for:
(a) Any and all losses, liabilities, or damages resulting
from any untrue representation, breach of warranty, or nonfulfillment of any
covenant by Buyer contained in this Agreement or in any certificate, document,
or instrument delivered to Seller under this Agreement, other than losses,
liabilities or damages resulting from any breach that is waived by Seller
pursuant to Sections 6.14 and 9.1(d) hereof;
(b) Any and all obligations of Seller assumed by Buyer
pursuant to this Agreement;
(c) Any and all losses, liabilities, or damages resulting
from the operation or ownership of any Station on and after the Closing; and
(d) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
10.4 Procedure for Indemnification. The procedure for indemnification
shall be as follows:
(a) The party claiming indemnification (the "Claimant") shall
promptly give notice to the party from which indemnification is claimed (the
"Indemnifying Party") of any claim, whether between the parties or brought by a
third party, specifying in reasonable detail the factual basis for the claim.
If the claim relates to an action, suit, or proceeding filed by a third party
against Claimant, such notice shall be given by Claimant within five days after
written notice of such action, suit, or proceeding was given to Claimant;
provided, however, that the failure of the Claimant to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Section 10, except to the extent the Indemnifying Party is actually and
materially prejudiced by such failure to give notice;
(b) With respect to claims solely between the parties,
following receipt of notice from the Claimant of a claim, the Indemnifying
Party shall have thirty days to make
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such investigation of the claim as the Indemnifying Party deems necessary or
desirable. For the purposes of such investigation, the Claimant agrees to make
available to the Indemnifying Party and/or its authorized representatives the
information relied upon by the Claimant to substantiate the claim. If the
Claimant and the Indemnifying Party agree at or prior to the expiration of the
thirty-day period (or any mutually agreed upon extension thereof) to the
validity and amount of such claim, the Indemnifying Party shall immediately pay
to the Claimant the full amount of the claim. If the Claimant and the
Indemnifying Party do not agree within the thirty-day period (or any mutually
agreed upon extension thereof), the Claimant may seek appropriate remedy at law
or equity or under the arbitration provisions of this Agreement, as applicable;
(c) With respect to any claim by a third party as to which
the Claimant is entitled to indemnification under this Agreement, the
Indemnifying Party shall have the right at its own expense, to participate in
or assume control of the defense of such claim, and the Claimant shall
cooperate fully with the Indemnifying Party, subject to reimbursement for
actual out-of-pocket expenses incurred by the Claimant as the result of a
request by the Indemnifying Party. If the Indemnifying Party elects to assume
control of the defense of any third-party claim, the Claimant shall have the
right to participate in the defense of such claim at its own expense; provided,
however, that the Claimant shall not consent to the entry of any judgment or
enter into any settlement unless Claimant obtains the prior written consent of
the Indemnifying Party (which consent shall not be unreasonably withheld). If
the Indemnifying Party does not elect to assume control or otherwise
participate in the defense of any third party claim, it shall be bound by the
results obtained by the Claimant with respect to such claim;
(d) If a claim, whether between the parties or by a third
party, requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible; and
(e) The indemnifications rights provided in Sections 10.2 and
10.3 shall extend to the shareholders, directors, officers, employees, and
representatives of any Claimant although for the purpose of the procedures set
forth in this Section 10.4, any indemnification claims by such parties shall be
made by and through the Claimant.
10.5 Limitations on Indemnification. Seller's and Buyer's obligations
to indemnify the other pursuant to this Section 10 shall be subject to the
following limitations:
(a) No indemnification shall be required to be made under
Section 10.2 or Section 10.3 until the aggregate amount of losses, liabilities,
damages or expenses incurred by Buyer or Seller, as the case may be, exceeds
$25,000, and then the indemnification shall be made by the Indemnifying Party
only to the extent of such excess over $25,000; and
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(b) No indemnification shall be required to be made under
Section 10.2 (a) or Section 10.3(a) if the written notice of any claim for
indemnification is received by the Indemnifying Party following the expiration
of the period specified in Section 10.1.
10.6 Specific Performance. The parties recognize that if Seller
breaches this Agreement and refuses to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled, in addition to any other
remedies that may be available, including money damages, to obtain specific
performance of the terms of this Agreement. If any action is brought by Buyer
to enforce this Agreement, Seller shall waive the defense that there is an
adequate remedy at law.
10.7 Attorneys' Fees. In the event of a default by either party which
results in a lawsuit or other proceeding for any remedy available under this
Agreement, the prevailing party shall be entitled to reimbursement from the
other party of its reasonable legal fees and expenses.
SECTION 11 MISCELLANEOUS
11.1 Fees and Expenses. Any federal, state, or local sales or transfer
tax arising in connection with the conveyance of the Assets by Seller to Buyer
pursuant to this Agreement shall be paid by Seller. Buyer and Seller shall
each pay one-half of the fees payable to the Escrow Agent and one-half of the
filing fee required in connection with the application for the FCC Consent.
Except as otherwise provided in this Agreement, each party shall pay its own
expenses incurred in connection with the authorization, preparation, execution,
and performance of this Agreement, including all fees and expenses of counsel,
accountants, agents, and representatives, Seller shall be responsible for all
fees or commissions payable to Media Venture Partners, and each party shall be
responsible for all fees or commissions payable to any other finder, broker,
advisor, or similar person retained by or on behalf of such party.
11.2 Arbitration. Except as otherwise provided to the contrary below,
any dispute arising out of or related to this Agreement or the Escrow Agreement
that Seller and Buyer are unable to resolve by themselves shall be settled by
arbitration by a panel of three (3) neutral arbitrators who shall be selected
in accordance with the procedures set forth in the commercial arbitration rules
of the American Arbitration Association in the State of Florida. The persons
selected as arbitrators shall have prior experience in the broadcasting
industry but need not be professional arbitrators, and persons such as lawyers,
accountants, brokers and bankers shall be acceptable. Before undertaking to
resolve the dispute, each arbitrator shall be duly sworn faithfully and fairly
to hear and examine the matters in controversy and to make a just award
according to the best of his or her understanding. The arbitration hearing
shall be conducted in accordance with the commercial arbitration rules of the
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American Arbitration Association in the State of Florida. The written decision
of a majority of the arbitrators shall be final and binding on Seller and
Buyer. The costs and expenses of the arbitration proceeding shall be assessed
between Seller and Buyer in a manner to be decided by a majority of the
arbitrators, and the assessment shall be set forth in the decision and award of
the arbitrators. Seller acknowledges and agrees that the arbitrators' award
may include, among other things, the right of Buyer to obtain specific
performance of the terms of this Agreement pursuant to Section 10.5. Judgment
on the award, if it is not paid or otherwise satisfied within thirty days, may
be entered in any court having jurisdiction over the matter. No action at law
or suit in equity based upon any claim arising out of or related to this
Agreement shall be instituted in any court by Seller or Buyer against the other
except (i) an action to compel arbitration pursuant to this Section or (ii) an
action to enforce the award of the arbitration panel rendered in accordance
with this Section.
11.3 Notices. All notices, demands, and requests required or permitted
to be given under the provisions of this Agreement shall be (a) in writing, (b)
delivered by personal delivery, or sent by commercial delivery service or
registered or certified mail, return receipt requested, (c) deemed to have been
given on the date of personal delivery or the date set forth in the records of
the delivery service or on the return receipt, and (d) addressed as follows:
If to Seller: Xxxx Day, President
Key Chain, Inc.
00000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxx X. Xxxxx, Esq.
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
If to Buyer: Xxxxxx X. Xxxxxx, Chairman
Xxxxxx Communications of the Keys, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
With a copy to: Xxxx X. Xxxxx, Xx., Esq.
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
or to any other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
11.3.
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11.4 Benefit and Binding Effect. No party hereto may assign this
Agreement without the prior written consent of the other parties hereto;
provided, however, that Buyer may assign its rights and obligations under this
Agreement, in whole or in part, to one or more subsidiaries or commonly
controlled affiliates of Buyer without seeking or obtaining Seller's prior
approval in which event Buyer shall have no further obligation hereunder and
Buyer may assign its rights and interests hereunder to its lenders as
collateral security for Buyer's obligations to such lenders without seeking or
obtaining Seller's prior approval. Upon any permitted assignment by Buyer or
Seller in accordance with this Section 11.4, all references to"Buyer" herein
shall be deemed to be references to Buyer's assignee and all references to
"Seller" herein shall be deemed to be references to Seller's assignee, as the
case may be. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns. No
assignment pursuant to the terms of this Section 11.4 shall excuse Buyer or
Seller from performing its obligations hereunder in the event its assignee
fails to perform such obligations. Except for any permitted assignee of Buyer
or Seller, this Agreement confers no rights of any kind upon any third party.
11.5 Further Assurances. The parties shall take any actions and
execute any other documents that may be necessary or desirable to the
implementation and consummation of this Agreement, including, in the case of
Seller, any additional bills of sale, deeds, or other transfer documents that,
in the reasonable opinion of Buyer, may be necessary to ensure, complete, and
evidence the full and effective transfer of the Assets to Buyer pursuant to
this Agreement.
11.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED, AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT REGARD TO
THE CHOICE OF LAW PROVISIONS THEREOF).
11.7 Headings. The headings in this Agreement are included for ease of
reference only and shall not control or affect the meaning or construction of
the provisions of this Agreement.
11.8 Gender and Number. Words used in this Agreement, regardless of
the gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine, or neuter, and any other number,
singular or plural, as the context requires.
11.9 Entire Agreement. This Agreement, the schedules hereto, and all
documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between Buyer and Seller with respect to the subject matter hereof. This
Agreement supersedes all prior negotiations between the parties and cannot be
amended, supplemented, or changed except by an agreement in writing
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that makes specific reference to this Agreement and which is signed by the
party against which enforcement of any such amendment, supplement, or
modification is sought.
11.10 Schedules. The Schedules hereto are incorporated herein by
reference and made a part hereof.
11.11 Waiver of Compliance; Consents. Except as otherwise provided in
this Agreement, any failure of any of the parties to comply with any
obligation, representation, warranty, covenant, agreement, or condition herein
may be waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, representation,
warranty, covenant, agreement, or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any party hereto, such
consent shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in this Section 11.11.
11.12 Press Release. No party shall publish any press release, make
any other public announcement or otherwise communicate with any news media
concerning this Agreement or the transactions contemplated hereby without the
prior written consent of the other parties; provided, however, that nothing
contained herein shall prevent either party from promptly making all filings
with governmental authorities as may, in its judgement be required or
advisable in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby.
11.13 Counterparts. This Agreement may be signed in counterparts with
the same effect as if the signature on each counterpart were upon the same
instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
XXXXXX COMMUNICATIONS OF
THE KEYS, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
KEY CHAIN, INC.
By: /s/ Xxxx X. Day
----------------------------------
Name: Xxxx X. Day
Title: President
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