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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is dated as of September 16, 1996, by and
among Spanish Broadcasting System, Inc., a Delaware corporation ("Buyer"), Xxxx
Xxxxxxx, Xx., New Age Broadcasting, Inc., a Florida corporation ("New Age"),
The Seventies Broadcasting Corporation, a Florida corporation ("Seventies",
and together with New Age, individually, a "Seller" and collectively, the
"Sellers") and, with respect to Section 9.3 hereof only, Xxxx Xxxxxxxx, Xxxxxxx
X. Oasis and Xxxxxx Xxxxxxxx.
RECITALS
A. Sellers are the licensees of and own and operate radio stations
WXDJ-FM, Homestead, Florida and WRMA-FM, Ft. Lauderdale, Florida (the
"Stations") pursuant to licenses issued by the Federal Communications
Commission.
X. Xxxxxxx desire to sell, and Buyer wishes 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.
AGREEMENTS
In consideration of the above recitals and of the mutual agreements and
covenants contained in this Agreement, Buyer and Sellers, 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 Sellers to cash payment for
the sale of advertising time and other revenues which are outstanding on the
Closing Date, which shall be reflected on the list to be provided to Buyer by
Sellers pursuant to Section 6.4(a).
"Affiliate" of any Person means any Person which is directly or
indirectly controlled by, under common control with or controlling such Person.
The term "control" means possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person or
the beneficial ownership, directly or indirectly, of a general partnership
interest in, or 10% or more of the equity of such Person.
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"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,
(ii) contracts entered into prior to the date of this Agreement with
advertisers for the sale of advertising time for cash at rates consistent with
Sellers' past practices, (iii) any Contracts entered into by any Seller between
the date of this Agreement and the Closing Date that Buyer agrees in writing to
assume, and (iv) Contracts entered into by Sellers 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,
including the written consents to the assignment of the Assumed Contracts.
"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 any Seller is a party or which are binding upon any 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 Sellers between the date of this Agreement and the
Closing Date.
"Designated Officers" means (i) with respect to New Age, Xxxxxxx X.
Oasis as President, Xxxx X. Xxxxxxxx as Secretary and Xxxxxx X. Xxxxxxxx as
Vice President and (ii) with respect to Seventies, Xxxxxxx X. Oasis as
President, Xxxx X. Xxxxxxxx as Secretary and Xxxxxx X. Xxxxxxxx as Treasurer.
"Effective Time" means 12:01 a.m., local Florida time, on the Closing
Date.
"FAA" means the Federal Aviation Administration.
"FCC" means the Federal Communications Commission.
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"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 any Seller in
connection with the existing or currently authorized 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 timely filed 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, call signs, licenses, patents, permits, jingles,
proprietary information, technical information and 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 any Seller or under which any Seller is licensed or
franchised and which are used or useful in the business and operations of the
Stations, material items of which (other than those set forth in Schedule 3.4)
are set forth on Schedule 3.9, together with any additions thereto between the
date of this Agreement and the Closing Date, excluding the names "New Age" and
"The Seventies".
"Licenses" means all licenses, permits, construction permits and other
authorizations issued by the FCC, the FAA or any other federal, state, or local
governmental authorities to any Seller, currently in effect and used in
connection with the conduct of the business or operations of the Stations,
which Licenses are set forth on Schedule 3.4, together with any additions
thereto between the date of this Agreement and the Closing Date.
"Liens" means security interests, mortgages, pledges, charges and other
liens and encumbrances.
"Permitted Liens" means (i) Liens for taxes not yet due and payable,
(ii) Liens arising pursuant to the Assumed Contracts and Liens securing
obligations assumed by Buyer at the Closing as provided in Section 2.4, (iii)
Liens disclosed on Schedules 3.5 and 3.6 hereto and other Liens which shall be
discharged prior to the Closing, (iv) mechanics' Liens and other similar Liens
incurred in the ordinary course of business which shall be discharged prior to
the Closing, and (v) with respect to leasehold interests, the rights and
interests of lessors and other owners and Liens granted by such Persons and all
Liens and other matters of record.
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"Person" means an individual or corporation, partnership, trust, sole
proprietorship or other entity.
"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 of Sellers 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 of Sellers' interests in
machinery, equipment, tools, vehicles, furniture, leasehold improvements,
office equipment, 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.
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, Sellers hereby agree to sell, transfer, and
deliver to Buyer on the Closing Date, and Buyer agrees to purchase from
Sellers, all of Sellers' rights, title and interest in and to 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 Liens (except for Permitted Liens), including
the following:
(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles;
(f) All of Sellers' proprietary information, technical
information and data, transferrable 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; and
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(g) All of Sellers' books and records relating to the business
and operations of the Stations, and all of Sellers' records required by the FCC
to be kept by the Stations.
2.2 Excluded Assets. The Assets shall exclude the following assets:
(a) Sellers' cash on hand as of the Closing and any of Sellers'
interests in their bank accounts and all of Sellers other cash, cash
equivalents, securities, investments, deposits, prepayments (including prepaid
taxes and insurance), tax refunds and overpayments;
(b) Any insurance policies and proceeds thereof, promissory
notes, amounts due from employees, bonds, letters of credit, certificates of
deposits or other similar items and cash surrender value in regard thereto;
(c) Any pension, profit-sharing, or employee benefit plans,
including all of Sellers' interest in any Welfare Plan, Pension Plan, or
Benefit Arrangement (as defined in Section 3.13), and any collective bargaining
agreements;
(d) The Accounts Receivable;
(e) Any Contracts not included among the Assumed Contracts;
(f) All tax returns and supporting materials, all original
financial statements and supporting materials, all books and records that
Sellers are required by law to retain, all corporate minutes and records, and
all records of Sellers relating to the sale of the Assets;
(g) Any interest in and to any refunds of federal, state, or
local franchise, income or other taxes for periods prior to the Closing Date;
(h) the assets listed on Schedule 2.2.
Buyer acknowledges that Sellers' shareholders own a company that holds
an option to acquire a tower site in the Miami area and neither such company
nor such option are included in the Assets.
2.3 Purchase Price.
(a) The Purchase Price for the Assets shall be One hundred ten
million dollars ($110,000,000), subject to adjustment as provided in Section
2.3(c) hereof. The Purchase Price shall be paid by Buyer in full at Closing by
confirmed wire transfer or transfers of immediately available funds pursuant to
wire instruc-
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tions signed by at least two of Xxxx Xxxxxxxx, Xxxxxxx Oasis or Xxxxxx
Xxxxxxxx; provided, however, that the signature of only one such individual
shall be required if the other two individuals are not alive or legally
competent on the Closing Date.
(b) Prorations. All revenues and expenses arising from the operation
of the Stations, including revenues and expenses arising under Assumed
Contracts, tower rentals, business and license fees, utility charges, real and
personal property taxes and assessments levied against the Assets (including
those prepaid by Sellers and those payable by Sellers after Closing), property
and equipment rentals, applicable copyright or other fees, sales and service
charges, taxes (except for income taxes and taxes arising from the transfer of
the Assets under this Agreement), and similar prepaid and deferred items, shall
be prorated between Buyer and Sellers in accordance with the principle that
Sellers shall receive all revenues and shall be responsible for all expenses,
costs, and liabilities allocable to the operations of the Stations for the
period prior to the Effective Time, and Buyer shall receive all revenues and
shall be responsible for all expenses, costs, and obligations allocable to the
operations of the Stations for the period after the Effective Time, subject to
the following:
(1) Contracts. There shall be no adjustment for, and Sellers
shall remain solely liable and receive all benefits with respect to, any
Contracts not included in the Assumed Contracts. An adjustment and proration
shall be made in favor of Buyer to the extent that Buyer assumes any liability
under any Assumed Contract to refund (or to credit against payments otherwise
due) any security deposit or similar prepayment paid to Sellers by any lessee
or other third party which is not otherwise credited to Buyer. Any adjustment
and proration shall be made in favor of Sellers to the extent that Sellers have
made (i) any security deposit under any Assumed Contract whether or not there
is a proration under such Assumed Contract or (ii) other prepayment under any
Assumed Contracts for which there is a proration.
(2) Employee Compensation. Except as otherwise provided
herein, Sellers shall be responsible for the payment of all compensation and
commissions owed to the Stations' employees up to the Effective Time. Buyer
may, as of the Effective Time, employ those employees of the Stations as Buyer
may elect on terms and conditions determined by Buyer and Buyer shall be
responsible for the payment of all compensation and commissions payable to the
Stations' employees retained by Buyer after the Effective Time. The parties
agree that Buyer shall be entitled to a proration crediting the Buyer for any
obligations of the Sellers to any employees that relate to accrued and unpaid
vacation time, sick leave or severance pay existing on and as of the Closing
Date, after which Sellers shall no longer be liable for such obligations and
Buyer shall assume and discharge such obligations.
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(3) Music Licenses. There shall be no proration of music
license fees. Sellers are responsible for filing and paying all music license
fees (ASCAP, BMI, SESAC, etc.) due and payable as of the Effective Time, and
Buyer is responsible for filing and paying all such fees after the Effective
Time.
(c) Subject to Sections 7.1(e) and 7.2(e) hereof, in the event that the
minimum combined "Broadcast Cash Flow" of the Sellers is less than nine million
one hundred thousand dollars ($9,100,000) (the "Target Broadcast Cash Flow")
for the 12 consecutive whole months immediately preceding the Closing for which
monthly financial statements have been prepared and are available (the
"Trailing 12 months"), then the Purchase Price shall be reduced by an amount
equal to (i) (A) the Target Broadcast Cash Flow minus (B) the actual Broadcast
Cash Flow of the Sellers for the Trailing 12 Months multiplied by (ii) 12.09.
For example, if the actual Broadcast Cash Flow of the Sellers for the Trailing
12 Months is $8,900,000, then the Purchase Price shall be reduced pursuant to
this Section 2.3(c) by $2,418,000. For purposes of this Agreement, "Broadcast
Cash Flow" shall mean the Sellers' combined operating income, as determined by
generally accepted accounting principles ("GAAP") as applied by Sellers on a
basis consistent with their most recent audited financial statements, before
any reduction for depreciation and amortization, interest, taxes, write-down of
franchise costs, trade expense and trade income, corporate expenses (including,
without limitation, Xxxx Oasis' compensation and benefits), legal fees and all
expenses associated with the sale or attempted sale of the Stations and the
legal fees and costs and any judgment associated with the litigation described
in Schedule 3.16. By way of example only, Exhibit 2.3(c) hereto sets forth an
itemized determination of Broadcast Cash Flow.
(d) Manner of Determining Prorations. The prorations pursuant to
Section 2.3(b) will be determined finally in accordance with the following
procedures:
(1) Sellers shall prepare and deliver to Buyer not later than
seven (7) days before the Closing Date a preliminary settlement statement which
shall set forth Sellers' good faith determination of the prorations under
Section 2.3(b). The Sellers' settlement statement (A) shall contain all
information reasonably necessary to determine the prorations under Section
2.3(b) to the extent such prorations can be determined or estimated as of the
date thereof and such other information as may be reasonably requested by
Buyer, and (B) shall be certified by Sellers to be true and complete to the
best of Sellers' knowledge as of the date thereof.
(2) No later than three (3) days prior to the Closing Date,
Buyer will deliver to Sellers a settlement statement setting forth Buyer's good
faith determination of the prorations
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under Section 2.3(b). Buyer's settlement statement (A) shall contain all
information reasonably necessary to determine the prorations under Section
2.3(b), and such other information as may have been reasonably requested by
Sellers, and (B) shall be certified by Buyer to be true and complete to the
best of Buyer's knowledge as of the date thereof.
(3) In the event the Buyer and the Sellers are in agreement with
respect to the amounts of the prorations under Section 2.3(b) hereof, at the
Closing payment in cash or other immediately available funds shall be made by
either the Buyer or the Sellers, as applicable, to give effect to such
prorations. The parties shall resolve any dispute relating to the amount of
such prorations under Section 2.3(b) in accordance with Section 2.3(d)(4)
below.
(4) Buyer and Sellers shall use good faith efforts to resolve any
dispute involving the determination of the prorations pursuant to Section
2.3(b) at or prior to Closing. If the parties are unable to resolve the dispute
at Closing, all prorations which are not in dispute shall be made in accordance
with Section 2.3(b) and, with respect to the disputed prorations, Buyer and
Sellers shall each (at its own expense) designate an accountant to resolve the
dispute within 15 days following the Closing, and if such accountants are
unable to resolve the dispute, such accountants shall appoint a third
accountant independent of Buyer and Sellers (such two or three accountants, "the
Accountants") to resolve the dispute. Any fees of any third Accountant shall be
divided equally between the parties. In the event that either Buyer or Sellers
fail to designate an Accountant, then the determination of the Accountant which
has been designated shall be final and binding upon the parties. In the event
that the Accountants designated by Buyer and Sellers are unable to resolve the
dispute and are also unable to agree upon a third Accountant within 30 days
following the Closing, then such third Accountant shall be selected within 60
days of the Closing (or as soon thereafter as practicable) by arbitration in
accordance with Section 11.2 hereof. With respect to any prorations disputed by
the parties (collectively, the "Disputed Amount") on the Closing Date, Buyer
and Sellers shall each submit in writing to the Accountants their determination
of the Disputed Amount. The Accountants' resolution of the dispute shall be
made within thirty (30) days after the Closing Date (unless the Accountants are
unable to agree, if required by the terms hereof, upon a third Accountant, in
which case the resolution of the dispute by the Accountants shall be made
within 15 days of the selection of a third Accountant), in accordance with this
Agreement by unanimous decision of the initial one or two Accountants or
majority decision of three Accountants, and shall be final and binding on the
parties, and a judgment may be entered thereon in any court of competent
jurisdiction. In the event the total amount of the
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proration sought by or on behalf of either party exceeds the final
determination of the Accountants by more than ten percent (10%), then such party
shall bear all costs and expenses associated with the resolution of the
dispute; provided, that if the total amount of the proration sought by both
parties exceeds such final determination of the Accountants by more than ten
percent (10%), then the parties shall bear equally all costs and expenses
associated with the resolution of such dispute. It is expressly understood and
agreed that any dispute under this Section 2.3 (d) shall not delay or prevent
the Closing in any manner, and that the transactions contemplated hereby shall
be consummated notwithstanding such dispute in accordance herewith. Any claims
to the Escrow Amount shall be paid following the Closing.
2.4 Assumption of Liabilities and Obligations.
(a) As of the Closing Date, Buyer shall assume and undertake to
pay, discharge and perform (i) any obligations or liabilities under the Assumed
Contracts insofar as they relate to the period after the Closing Date except
insofar as an adjustment therefor is made in favor of Sellers under Section 2.3
(b), (ii) any claims or litigation or proceedings insofar as they relate to the
operation of the Stations after the Closing, and (iii) any obligations or
liabilities relating to the business operations of the Stations after the
Closing, and all such obligations and liabilities shall become and be the
obligations and liabilities solely of Buyer.
(b) Buyer shall not assume any other obligations or liabilities
of Sellers, including (i) any obligations or liabilities under any Contract not
included in the Assumed Contracts, (ii) any obligations or liabilities under the
Assumed Contracts insofar as they relate to the period prior to the Closing Date
except insofar as an adjustment therefor is made in favor of Buyer under Section
2.3(b), (iii) any claims or pending litigation or proceedings insofar as they
relate to the operation of the Stations prior to the Closing, (iv) any
obligations or liabilities of Sellers under any employee pension, retirement, or
other benefit plans, (v) any obligations or liabilities of Sellers under any
collective bargaining agreements, (vi) any obligation to any employee of any of
the Stations for severance benefits, vacation time, or sick leave accrued prior
to the Closing Date, or (vii) any obligations or liabilities other than the
liabilities being assumed by Buyer pursuant to Section 2.4(a) caused by, arising
out of, or resulting from any action or omission of Sellers prior to the
Closing, and all such obligations and liabilities shall remain and be the
obligations and liabilities solely of Sellers.
2.5 Allocation of Purchase Price. Subject to the following
sentence, the Purchase Price shall be allocated between Sellers and among the
Assets, as of the Closing Date, pursuant to the appraisal
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of the current value of the Assets on the Closing Date to be paid for by the
Buyer and supplied by Buyer to Sellers within 30 days following the Closing
Date, which appraisal shall be subject to the approval of Sellers, which
approval shall not be unreasonably withheld. It is expressly understood and
agreed that an aggregate of $200,000 of the Purchase Price shall be "allocated"
to the Non-Competition Agreement referred to in Section 8.2(f) hereof.
Notwithstanding the foregoing, in the event that the parties are unable to
agree upon the allocation of the Purchase Price within 30 days following the
Closing Date, then the parties shall submit such dispute to arbitration
pursuant to Section 11.2 hereof within 45 days following the Closing.
SECTION 3 REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers represent and warrant to Buyer as follows:
3.1 Organization, Standing, and Authority. Each Seller is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Florida. Such Seller has all requisite power and authority (i) to own,
lease, and use the Assets as now owned, leased, and used in all material
respects, (ii) to conduct the business and operations of the Stations as now
conducted in all material respects, and (iii) to execute and deliver this
Agreement and the documents contemplated hereby, and to perform and comply with
all of the terms, covenants, and conditions to be performed and complied with
by such Seller hereunder and thereunder. Except as set forth on Schedule 3.1,
neither Seller is a participant in any joint venture or partnership with any
other person or entity with respect to any material part of the operations of
the Stations or any of the material Assets.
3.2 Authorization and Binding Obligation. The execution, delivery, and
performance of this Agreement by Sellers have been duly authorized by all
necessary corporate actions on the part of Sellers and their shareholders. This
Agreement has been duly executed and delivered by Sellers and constitutes the
legal, valid, and binding obligation of Sellers, enforceable against them in
accordance with its terms except as the enforceability of this Agreement may be
affected by bankruptcy, insolvency, or similar laws affecting creditors' rights
generally, and by judicial discretion in the enforcement of equitable remedies.
3.3 Absence of Conflicting Agreements. Except as otherwise provided
herein including, without limitation, Section 6.10 hereof, subject to obtaining
the FCC Consent, and the filing of a Notification and Report Form and the
expiration of the waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 0000 (xxx "XXX Xxx", and together with the FCC Consent, the
"Required Consents"), and the Consents listed on Schedule 3.3 (as
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defined below), the execution, delivery, and performance of this Agreement and
the documents contemplated hereby (with or without the giving of notice, the
lapse of time, or both): (i) do not conflict with any provision of the Articles
of Incorporation or Bylaws of Sellers; (ii) do not as of the date hereof
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; (iii) do not as of the date hereof
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 any Seller is a party or by which any Seller may be legally bound which
would have a material adverse effect on Sellers or the Stations; and (iv) will
not create any Lien of any material nature whatsoever upon the Assets, except
in the case of each of clauses (ii), (iii) and (iv) above, for such violations,
conflicts, breaches, defaults, terminations, accelerations or creations of
Liens which would not, individually or in the aggregate, have a material
adverse effect on Sellers ability to consummate the transactions contemplated
hereby.
3.4 Governmental Licenses. Schedule 3.4 includes a true and complete
list of the FCC Licenses. Sellers have made available to Buyer true and
complete copies of the FCC Licenses (including any amendments and other
modifications thereto). To Sellers' knowledge, the Licenses have been validly
issued, and Sellers are the authorized legal holders thereof (respectively, as
indicated on such schedule). The FCC Licenses listed on Schedule 3.4 comprise
all of the licenses, permits, and other authorizations required from the FCC
for the lawful conduct of the business and operations of the Stations in the
manner and to the full extent they are now conducted. Subject to the foregoing,
the FCC Licenses are in full force and effect and the conduct of the business
and operations of the Stations are in accordance therewith.
3.5 Interests in Real Property.
(a) Schedule 3.5 contains a complete and accurate description of
all Sellers' interests in and to all leases of real property. The leases listed
on Schedule 3.5 comprise all real property interests used by Sellers to conduct
the business and operations of the Stations as now conducted. Sellers own no
real property in fee.
(b) With respect to each leasehold interest listed on Schedule
3.5 (the "Leased Property"), except as set forth in Schedule 3.5, Sellers hold
such leasehold interests subject to the terms of the relevant Assumed Contract,
free and clear of Liens, except for Permitted Liens. Except as set forth in
Schedule 3.5, (i) each such lease or sublease that is an Assumed Contract is in
full force and effect, and is valid, binding and enforceable in all
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material respects in accordance with its respective terms except as
enforceability thereof may be affected by bankruptcy, insolvency, or similar
laws affecting creditors' rights generally, and by judicial discretion in the
enforcement of equitable remedies, (ii) all accrued and currently payable rents
and other payments required to be paid by Sellers under such leases have been
paid, (iii) neither any Seller nor to Sellers' knowledge as of the date hereof,
any other party is in default in any material respect under any such leases,
(iv) to Sellers' knowledge as of the date hereof, no party has asserted any
material defense, set off or counterclaim thereunder, and (v) as of the date
hereof no notice of material default or termination has been given or received
by Sellers thereunder, as of the date hereof no event of material default has
occurred by any Seller thereunder or to Sellers' knowledge, by any other party
thereto, and as of the date hereof no condition exists and no event has
occurred that, with the giving of notice, the lapse of time, or the happening
of any further event would become a material default by any Seller thereunder
or to Sellers' knowledge, by any other party thereto. Except as set forth in
Schedule 3.5 hereto, no third-party consent or approval is required for the
assignment of any such lease to Buyer. As of the date hereof, all Real Property
(including the improvements thereon) is available for immediate use in the
conduct of the business or operations of the Stations as now conducted and, to
Sellers' knowledge, complies in all material respects with all applicable
building and zoning codes and the regulations of any governmental authority
having jurisdiction, except to the extent the current use, while permitted,
constitutes a "nonconforming use" under current zoning or land use regulations.
All improvements included in the Assets, if any, are located entirely on the
Real Property.
3.6 Title to and Condition of Tangible Personal Property. Schedule 3.6
lists all items of Tangible Personal Property having a value in excess of
$1,000. The Tangible Personal Property listed on Schedule 3.6 comprises all
material items of tangible personal property used by Sellers to conduct the
business and operations of the Stations as now conducted and, except as set
forth on Schedule 3.6, all such property is in good working order and repair
and is suitable for the operation of the Stations by Buyer in a manner
consistent with the manner in which the Stations have heretofore been operated
by Sellers, in conformity with all applicable FCC rules and regulations. Except
as described in Schedule 3.6, Sellers own and have good title to each item of
Tangible Personal Property, and none of the Tangible Personal Property owned by
Sellers is subject to any Lien, except for Permitted Liens. Except as set forth
on Schedule 3.6, all items of transmitting and studio equipment included in the
Tangible Personal Property permit the Stations and any auxiliary broadcast
facilities related thereto to operate in accordance with the terms of the FCC
Licenses and the rules and regulations of the FCC (other than FCC engineering
specifications). The representations and warranties set forth in
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this Section 3.6 shall not be deemed untrue or incomplete at any time by reason
of any disposition, repair or replacement of Tangible Personal Property in
compliance with Section 5.4 or 6.5 or otherwise in compliance with this
Agreement.
3.7 Contracts. Schedule 3.7 is a true and complete list of all
Contracts as of the date hereof except contracts for the sale of advertising
time on the Stations for cash at rates consistent with past practices and other
contracts which may be canceled by Sellers without penalty on not more than
ninety (90) days' notice. Sellers have delivered to Buyer true and complete
copies of all written Assumed Contracts, true and complete descriptions (in all
material respects) of all oral Assumed Contracts (including any amendments and
other modifications to such Contracts) and a schedule summarizing Sellers'
material obligations under trade and barter agreements relating to the Stations
as of the date hereof. To Sellers' knowledge as of the date hereof, all of the
Assumed Contracts are in full force and effect, in all material respects, and,
to Sellers' knowledge, are valid, binding and enforceable, in all material
respects, in accordance with their terms except as otherwise disclosed on
Schedule 3.7 or except as the enforceability thereof may be affected by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally,
and by judicial discretion in the enforcement of equitable remedies.
3.8 Consents. As of the date hereof, except for the Required
Consents and the other Consents described in Schedule 3.3, to Sellers'
knowledge, no consent, approval, permit, or authorization of, or declaration to
or filing with any governmental or regulatory authority, or any other third
party is required to permit Sellers to assign or transfer the Assets to Buyer,
excluding Consents which, if not obtained, would not have a material adverse
effect on any Station.
3.9 Intangibles. Schedule 3.9 is a true and complete list of all
Intangibles (exclusive of Licenses listed in Schedule 3.4) that are used by
Sellers to conduct the business and operations of the Stations as now
conducted, all of which to Sellers' knowledge are on the date hereof valid and
in good standing and uncontested except as otherwise set forth on Schedule 3.9.
Sellers have delivered to Buyer copies of all existing documents that establish
or evidence any of the Intangibles. As of the date hereof, other than with
respect to matters generally affecting the radio broadcasting industry and not
particular to Sellers, Sellers have not received any notice or demand alleging
that any Seller is 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 to the knowledge of Sellers, there is no claim or action
pending or threatened with respect thereto.
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3.10 Financial Statements. Sellers have furnished Buyer with true and
complete copies of (i) audited financial statements of New Age containing the
balance sheet, statement of income and retained earnings and statement of cash
flow at and for New Age's fiscal year ended September 30, 1994, (ii) audited
combined financial statements of New Age and Seventies containing the balance
sheet, statement of income and retained earnings and statement of cash flows at
and for the fiscal year ended September 30, 1995, (iii) unaudited combined
financial statements of Sellers containing the balance sheet, statement of
income and retained earnings and statement of cash flows at and for the three
month periods ended December 31, 1994 and December 31, 1995, and (iv) unaudited
statement of income and expenses for Sellers for the period of January 1996
through July 1996 (collectively, the "Financial Statements"). The Financial
Statements have been prepared in accordance with GAAP as applied by Sellers on a
consistent basis, accurately reflect the books, records and accounts of the
Stations (which books, records and accounts 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, and do not, in accordance with GAAP as applied by the Sellers on a
consistent basis, materially overstate income or understate expenses.
3.11 Insurance. Schedule 3.11 is a true and complete list of all
insurance policies of Sellers that insure any part of the Assets or the
business of the Stations as of the date hereof. All policies of insurance
listed in Schedule 3.11 are in full force and effect.
3.12 Reports. All returns, reports and statements that the Stations
are currently required to file with the FCC or FAA have been filed, and all
reporting requirements of the FCC and FAA have been complied with. All of such
returns, reports, and statements, as filed, satisfy all applicable legal
requirements.
3.13 Personnel.
Employees and Compensation. As of the date hereof, Schedule 3.13
contains a true and complete list of all employees of the Stations and all
persons retained as independent contractors at the Stations (collectively, the
"Employees") and a description of all compensation arrangements affecting them.
As of the date hereof, no Seller has any employee benefit plans or arrangements
applicable to its respective Employees other than as set forth on Schedule
3.13.
3.14 Labor Relations. Each Seller has complied in all material
respects 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
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payment of social security and other payroll related taxes, except where the
failure to so comply would not have a material adverse effect on the Sellers or
the Stations, and it has not received any notice alleging that it has failed to
comply with any such laws, rules, or regulations. No material controversies,
disputes, or proceedings are pending or, to the knowledge of Sellers,
threatened, between any Seller and any employee (individually or collectively)
of the Stations. To Sellers' knowledge as of the date hereof, no labor union or
other collective bargaining unit represents or claims to represent any of the
employees of the Stations. To Sellers' knowledge as of the date hereof, there
is no union campaign being conducted to solicit cards from employees to
authorize a union to request a National Labor Relations Board certification
election with respect to any employees at the Stations.
3.15 Taxes. Except as set forth on Schedule 3.15, Sellers have
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 have
been filed, and they have paid or caused to be paid all taxes shown on those
returns or on any tax assessment received by them to the extent that such taxes
have become due and payable, or have set aside on their books adequate reserves
with respect thereto. As of the date hereof, there are no legal,
administrative, or tax proceedings pursuant to which any 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.
3.16 Claims and Legal Actions. As of the date hereof, except as
disclosed on Schedule 3.16 or Schedule 3.4 and except for rulemaking
proceedings generally affecting the radio broadcasting industry, there is no
claim, legal action, counterclaim, suit, arbitration or other legal,
administrative, or tax proceeding, nor any order, decree or judgment, in
progress or pending or, to the knowledge of Sellers, threatened, against or
relating to any Seller with respect to its ownership or operation of the
Stations or otherwise relating to the Assets or the business or operations of
the Stations, nor do Sellers know of any reasonable basis for the same. In
particular, but without limiting the generality of the foregoing as of the date
hereof, except as disclosed on such schedules, there are no applications,
complaints or proceedings pending or, to Sellers' knowledge, threatened (i)
before the FCC relating to the business or operations of the Stations other
than rulemaking proceedings which affect the radio industry generally, (ii)
before any federal or state agency relating to the business or operations of
the Stations 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 the Stations involving
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zoning issues under any federal, state, or local zoning law, rule, or
regulation.
3.17 Environmental Matters.
Subject to the disclosure on Schedule 3.17 and excluding environmental
matters as may affect the radio broadcasting industry as a whole:
(a) To Sellers' knowledge, Sellers have 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 to Sellers'
knowledge as of the date hereof, no charge, complaint, action, suit,
proceeding, hearing, claim, demand, or notice has been filed or commenced
against any Seller in connection with its ownership or operation of any Station
alleging any failure to comply with any such law, rule, or regulation.
(b) To Sellers' knowledge, no Seller has any material liability
relating to its ownership and operation of the Stations (and to Sellers'
knowledge, there is no reasonable basis related to Sellers' past or present
operations of the Stations, for any present or future charge, complaint, action,
suit, proceeding, hearing, investigation, claim, or demand against any Seller
giving rise to any such liability) under the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), the Resource Conservation
and Recovery Act ("RCRA"), the Federal Water Pollution Control Act, the Clean
Air Act, the Safe Drinking Water Act, the Toxic Substances Control Act, the
Refuse Act or the Emergency Planning and Community Right-to-Know Act (each as
amended), or any other law, rule, or regulation of any federal, state, or local
government (or agency thereof) concerning release or threatened release of
hazardous substances (as such term is defined in CERCLA and RCRA ("Hazardous
Substances")), public health and safety, or pollution or protection of the
environment.
(c) To Sellers' knowledge, no Seller has any liability relating
to its ownership or operation of the Stations (and no Seller has handled or
disposed of any Hazardous Substances, arranged for the disposal of any
Hazardous Substances, or owned or operated any property or facility in any
manner that could reasonably be expected to 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 any
Seller giving rise to any such liability) for material damage to any site,
location, or body of water (surface or subsurface) or for illness or personal
injury.
(d) To Sellers' knowledge, no Seller has any material liability
relating to its ownership or operation of the Stations
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(and there is no reasonable basis for any charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand against any Seller giving
rise to any such liability) under the Occupational Safety and Health Act, as
amended, or under any other law, rule, or regulation of any federal, state, or
local government (or agency thereof) concerning employee health and safety.
(e) In connection with its ownership or operation of the
Stations, to Sellers' knowledge, each Seller has obtained and is in material
compliance with all of the terms and conditions of all permits, licenses, and
other authorizations which are required under, and, to Sellers' knowledge, 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.
(f) All properties and equipment used in the business of the
Stations are and have been free of PCB's and, to Sellers' knowledge, asbestos
and asbestos-related products, methylene chloride, trichloroethylene, 1,
2-trans-dichloroethylene, dioxins, dibenzofurans, and Extremely Hazardous
Substances (as defined in Section 302 of the Emergency Planning and Community
Right-to-Know Act).
3.18 Compliance with Laws. Sellers have complied with the FCC
Licenses and, to Sellers' knowledge, in all material respects with all federal,
state, and local laws, rules, regulations, and ordinances applicable or
relating to the ownership and operation of the Stations by Sellers.
3.19 Conduct of Business in Ordinary Course. Except as set forth in
Schedule 3.19, since July 31, 1996, and continuing through the date hereof,
Sellers have conducted the business and operations of the Stations only in the
ordinary course and have not:
(a) Suffered any material adverse change in the Tangible
Personal Property, including any damage, destruction, or loss affecting in any
material respect any assets used or useful in the conduct of the business of
the Stations;
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(b) Subject to Section 5.2 hereof, except for increases,
payments and changes reflected in the information set forth in Schedule 3.13,
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 consistent with past business practices with suitable replacements
being obtained therefor;
(d) Canceled any debts owed to or claims held by any Seller
with respect to the Stations;
(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.
3.20 Transactions with Affiliates. Except as disclosed on Schedule
3.20, neither Seller has been involved in any material business arrangement or
relationship relating to the Stations with any Affiliate of any Seller, and no
Affiliate of any Seller owns any material property or right, tangible or
intangible, which is used in the business of the Stations.
3.21 Broker. Neither Sellers nor any person or entity acting on their
behalf have incurred any liability for any finders' or brokers' fees or
commissions in connection with the transactions contemplated by this Agreement.
SECTION 4 REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Sellers as follows:
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 Delaware. Buyer has all requisite corporate power and authority to
execute and deliver this Agreement and the documents contemplated hereby, and
to perform and comply with all of the terms, covenants, and conditions to be
performed and complied with by Buyer hereunder and thereunder.
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4.2 Authorization and Binding Obligation. The execution, delivery,
and performance of this Agreement by Buyer has been duly authorized by all
necessary corporate actions on the part of Buyer. This Agreement has been duly
executed and delivered by Buyer and constitutes the legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms
except as the enforceability of this 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. Except as set forth on Schedule
4.3, the execution, delivery, and performance by Buyer of this Agreement and the
documents contemplated hereby (with or without the giving of notice, the lapse
of time, or both): (i) do not require the consent of any third party under any
agreement, license or law applicable to Buyer; (ii) will not conflict with any
organizational documents of Buyer; (iii) will not conflict with, judgment,
order, injunction, decree, rule, regulation, or ruling of any court or
governmental instrumentality applicable to Buyer; 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.
4.4 Broker. Neither Buyer nor any person or entity acting on its
behalf has incurred any liability for any finders' or brokers' fees or
commissions in connection with the transactions contemplated by this Agreement.
4.5 Buyer Qualifications. Buyer is qualified to be the licensee of,
acquire, own and operate the Stations under the Communications Act of 1934, as
now in effect, and the rules, regulations and policies of the FCC as now in
effect including without limitation under the multiple ownership standards of
the Act and the FCC, without need for a waiver thereof. Buyer knows of no fact
that would, under existing law and the existing rules, regulations, policies
and procedures of the FCC (a) disqualify Buyer as an assignee of the FCC
Licenses or as the owner and operator of the Stations or (b) cause the FCC to
fail to approve in timely fashion the application for the FCC Consent. Buyer
and no Affiliate of Buyer has ever had an application for transfer of an FCC
License or any filing under the Xxxx-Xxxxx-Xxxxxx Act denied.
4.6 Financing. Buyer will have as of the Closing sufficient finances
to enable it to close on the transactions contemplated hereby and to pay the
Purchase Price to Sellers in accordance with the terms hereof.
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4.7 Claims and Legal Actions. There is no claim, legal action,
counterclaim, suit, arbitration or other legal proceeding, nor any order,
decree or judgment in progress or pending or, to the knowledge of Buyer,
threatened, against or relating to the Buyer, that may adversely affect its
ability to consummate the transactions contemplated hereby.
SECTION 5 OPERATIONS OF THE STATIONS PRIOR TO CLOSING
Between the date of this Agreement and the Closing Date, Sellers and
Buyer, as applicable, shall comply with the covenants set forth in this Section
5, unless approved in advance by Buyer (in the case of covenants relating to
conduct of Sellers) or by Sellers (in the case of covenants relating to the
conduct of Buyer).
5.1 Generally. Sellers shall operate the Stations diligently in
the ordinary course of business substantially in accordance with their past
practices (except where such operations would conflict with the following
covenants or with Sellers' other obligations under this Agreement or under the
Contracts or Licenses), and in accordance with the other covenants in this
Section 5. Sellers shall have the right to amend the Schedules to this
Agreement, including, without limitation, Schedule 3.20 hereof, to reflect the
occurrence of any transactions of Sellers in the ordinary course of business
substantially in accordance with their past business practices during the last
two years between the date hereof and the Closing Date.
5.2 Compensation. Other than in accordance with existing
contracts, Sellers shall not increase the compensation, bonuses, or other
benefits payable following the Closing or to be payable to any person employed
in connection with the conduct of the business or operations of the Stations;
provided that Sellers shall have the right to (i) extend the term of or renew
existing employment agreements in a manner generally consistent with its past
business practices and (ii) increase the amount of compensation payable to any
employee consistent with its past business practices.
5.3 Contracts. Sellers will not, without Buyer's approval, enter
into any contract or commitment relating to the Stations or the Assets, or
incur any obligation (including obligations relating to the borrowing of money
or the guaranteeing of indebtedness and obligations arising from the amendment
of any existing Assumed Contract) that will impose any liability on Buyer after
Closing, except for (a) cash time sales agreements made in the ordinary course
of business consistent with Sellers' past practices, (b) other contracts
entered into in the ordinary course of business consistent with Sellers' past
practices that do not involve consideration payable by Buyer after the Closing,
in the aggregate,
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in excess of $50,000 measured at Closing, and (c) agreements permitted by
Section 5.20 hereof. Prior to the Closing Date, Sellers shall deliver to Buyer
a list of all Contracts entered into between the date of this Agreement and the
Closing Date and shall make available to Buyer copies of such Contracts.
5.4 Disposition of Assets. Sellers shall not sell, assign, lease, or
otherwise transfer or dispose of any of the material Assets, except assets that
are replaced by property of substantially equivalent kind and value.
5.5 Encumbrances. Sellers shall not create or assume any Lien of any
material nature upon the Assets, except for Permitted Liens.
5.6 Licenses. Sellers shall not cause or permit, by any act or
failure to act, any of the Licenses required to be listed on Schedule 3.4 to
expire or to be revoked, suspended, or modified, or take any action that could
reasonably be expected to cause the FCC or any other governmental authority to
institute proceedings for the suspension, revocation, or material adverse
modification of any of the material Licenses. Sellers shall not fail to
prosecute with due diligence any material applications to any governmental
authority necessary for the operation of the Stations and shall file with the
FCC any request necessary to extend the expiration date of any outstanding
construction permit if applicable.
5.7 Obligations. Sellers shall pay all obligations relating to the
Stations as they become due so that all such obligations shall be current as of
the Closing Date, except for obligations contested in good faith which shall be
disclosed in writing to Buyer on or prior to the Closing Date.
5.8 Access to Information. Sellers shall give Buyer and its counsel,
accountants, engineers, investment bankers, lenders and other authorized
representatives reasonable access to the Assets and the Stations and to all of
Sellers other properties, equipment, books, records, Contracts, and documents
relating to the Stations for the purpose of audit and inspection and will
furnish or cause to be furnished to Buyer or its authorized representatives all
information of Sellers 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), all at Buyer's expense. Without limiting the generality of the
foregoing, Sellers shall give Buyer and its counsel, accountants and other
authorized representatives reasonable access to Sellers' financial records and
Sellers' employees, counsel, accountants and other representatives for the
purpose of preparing and auditing such financial statements as Buyer
determines, in its judgment, are required or advisable to comply with federal
or state securities laws and the rules and
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regulations of securities markets as a result of the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby.
5.9 Maintenance of Assets. Sellers shall maintain all of the Assets in
good working order and repair (ordinary wear and tear and casualty excepted),
and use, operate, and maintain all of the Assets in good working order and
repair. Sellers shall maintain inventories of spare parts at levels consistent
with past practices. Subject to the provisions of Section 6.5, if any insured
or indemnified loss, damage, impairment, confiscation, or condemnation of or to
any of the Assets occurs, Sellers shall substantially repair, replace, or
restore the Assets to their prior condition as represented in this Agreement as
soon thereafter as possible (after receipt of the insurance or the
indemnification proceeds), and Sellers shall use the proceeds of any claim
under any property damage insurance policy or other recovery solely to repair
or restore (or in Sellers' discretion, replace) any of the Assets that are
lost, damaged, impaired, or destroyed.
5.10 Insurance. Sellers shall maintain comparable insurance coverage
provided by the existing insurance policies on the Stations and the Assets.
5.11 Consents. Sellers shall obtain the Required Consents and shall use
their best efforts to obtain the other Consents described on Schedule 3.3,
without any material change in the terms or conditions of any material Contract
that could reasonably be expected to be materially less advantageous to Buyer
than those pertaining under such Contract as in effect on the date of this
Agreement. Sellers 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, and shall deliver Buyer a copy of any
written Consent that may be obtained by Sellers. Sellers shall have no
obligation to bring or threaten legal action or to materially increase their
obligations thereunder to obtain any of the Consents.
5.12 Book and Records. Sellers shall maintain their books and records
relating to the Stations in accordance with past practices.
5.13 Notification. Sellers and Buyer shall promptly notify each other in
writing of any material change in any of the information contained in their
respective representations and warranties contained in Section 3 or 4 of this
Agreement of which such party, as applicable, has actual knowledge, provided
that such notification shall not relieve such party of any obligations
hereunder.
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5.14 Financial Information. Sellers shall furnish Buyer with operating
results of the Stations on a monthly basis and shall furnish to Buyer within
twenty-one days after the end of each month ending between the date of this
Agreement and the Closing Date a statement of income and expenses for the month
just ended and such other financial information (including information on
payables and receivables) as Buyer may reasonably request. In connection with
any audit by Buyer of Sellers' financial records for the past three years,
Sellers shall furnish Buyer with the report or other information prepared by
Sellers' accountants with respect to the Financial Statements immediately upon
Sellers' receipt of such report of other information and with such other
financial information in their possession as Buyer may reasonably request.
Within five days prior to the Effective Time, Sellers shall also furnish Buyer
with unaudited combined financial statements of New Age and Seventies containing
the balance sheet, statement of income and retained earnings and statement of
cash flows of Sellers through the end of the most recent fiscal quarters of each
of New Age and Seventies ended on or prior to 45 days prior to the Closing Date
(the "Closing Unaudited Financial Statements").
5.15 Compliance with Laws. Sellers shall use their best efforts to comply
in all material respects with all laws, rules, and regulations applicable or
relating to the ownership and operation of the Stations, it being understood
that at the Closing Sellers shall deliver to the Buyer title to the Assets,
free and clear of any Liens; provided, however, that any tax returns which
Sellers may be obligated to file as a result of or in connection with the
transactions contemplated hereby may be filed by Sellers within ninety (90)
days after the Closing.
5.16 Programming. Sellers shall not make any material changes in the
Stations' programming policies, except such changes as in the good faith
judgment of Sellers are required by the public interest or otherwise in the
best interest of the Stations.
5.17 Preservation of Business. Sellers shall use their commercially
reasonable efforts consistent with their past practices to preserve the
business and organization of the Stations and 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.
5.18 Collection of Accounts Receivable. Sellers shall collect the
accounts receivable of the Stations only in the ordinary course consistent with
their past practices.
5.19 Inconsistent Action. Sellers and Buyer shall not take any action
that is inconsistent with their obligations under this Agreement in any
material respect or that could reasonably be
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expected to materially hinder or delay the consummation of the transactions
contemplated by this Agreement.
5.20 Trade Agreements. Sellers may enter into trade agreements for
use by the Stations subject to Section 5.1; provided that trade agreements
having an aggregate value of less than $100,000 shall be deemed to be made by
Sellers in the ordinary course of business.
5.21 Buyer Approvals. Buyer shall not unreasonably withhold, delay
or condition any approval or consent requested by Sellers hereunder, provided,
however, that Buyer shall not be obligated to incur any obligation it
reasonably deems is material or agree to any material change in any Contract or
License to be assumed hereunder; and provided, further, that any requirement of
Buyer to pay a security deposit under one or more of the leases described on
Schedule 3.5 shall not be deemed to be material. Buyer shall respond to each
request for an approval or consent hereunder within five business days after
such approval or consent has been received from Sellers in writing and if Buyer
shall fail to respond in writing to such a request within such period, Buyer
shall be deemed to have granted such approval or consent.
5.22 SBS and Xxxx Xxxxxxx, Xx. ("Xxxxxxx") agree, jointly and
severally, that they will not, directly or indirectly, enter into an agreement
("Sale Agreement") with any Person whatsoever to sell all or substantially all
of the assets of SBS or its Affiliates, or a majority of the radio stations
owned or controlled by SBS or its Affiliates, or a majority of the capital
stock of SBS. Upon any breach by SBS or Xxxxxxx of this Section 5.22, then
Sellers' sole remedy for such breach shall be governed by Section 9.4 hereof,
and Sellers shall not have the right to terminate this Agreement solely as a
consequence of the breach of this Section 5.22.
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.
(b) Sellers and Buyer shall promptly prepare appropriate
applications for the FCC Consent and shall file such applications with the FCC
on or before the fifth business day after the date of this Agreement. The
parties shall prosecute the applications with all reasonable diligence and
otherwise use their reasonable commercial efforts to obtain a grant of the
applications as expeditiously as practicable. Each party agrees to comply with
any condition imposed on it by the FCC Consent, except that no party
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shall be required to comply with a condition if (1) the condition sought to be
imposed on it is the result of a circumstance, the existence of which does not
constitute a breach by such party of any of its representations, warranties, or
covenants under this Agreement, and (2) compliance with such condition would
have a material adverse effect upon it. Buyer and Sellers shall oppose any
petitions to deny or other objections filed with respect to the application for
the FCC Consent and any requests for reconsideration or judicial 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, either party hereto may request an
extension of the effective period of the FCC Consent and the other party hereto
shall cooperate with such request. No extension of the FCC Consent shall limit
the exercise by either party of its rights under Section 9. Sellers and Buyer
are not aware of any condition which would materially adversely affect the
parties' ability to obtain the FCC Consent.
6.2 HSR Filing. As soon as practicable after the execution hereof
but in no event later than fifteen (15) business days after the execution
hereof, Buyer and Sellers shall each make the filings required by the HSR act.
Each party shall bear one-half (1/2) of all filing fees under the HSR Act. Each
party will cooperate with the other in accomplishing such filings and will keep
the other party appraised of the status of any inquiries made of such party by
the Federal Trade Commission ("FTC"), the U.S. Department of Justice ("DOJ") or
any other governmental agency with respect to this Agreement or the transaction
contemplated hereby. The transfer of the Assets hereunder is expressly
conditioned upon the waiting period relating to any such filings having duly
expired or been terminated by the appropriate government agencies without the
enforcement of any action by any such agencies to restrain or postpone the
transactions contemplated hereby.
6.3 Control of the Stations. 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 Sellers until the
Closing.
6.4 Accounts Receivable.
(a) Collection. At the Closing, Sellers shall designate Buyer
as their agent solely for the purposes of collecting the Accounts Receivable.
Sellers shall deliver to Buyer on or as soon as practicable after the Closing
Date a complete and detailed statement showing the name, amount and age of each
Account Receivable. Buyer shall make reasonable efforts in accordance with
Buyer's customary business practices to collect the Accounts
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Receivable during the "Collection Period," which shall be the period beginning
on the Closing Date and ending on the last day of the fifth full calendar month
beginning after the Closing Date. Buyer shall not be obligated to use any
efforts to collect any of the Accounts Receivable that are more extensive than
the efforts that Buyer uses to collect its own accounts receivable. Buyer shall
not refer any Accounts Receivable to a collection agency or attorney for
collection, and Buyer shall not make any such referral or compromise, nor
settle or adjust the amount of any of the Accounts Receivable, except with the
approval of Sellers. During the Collection Period, upon delivery of prior
written notice to the Buyer, Sellers shall be entitled to assume all collection
efforts with respect to any of the Accounts Receivable which are in dispute or
have not been paid within 90 days from their incurrence in its sole and
absolute discretion. Collections by Buyer (or Sellers, if applicable) of the
Stations' receivables shall be applied first to the oldest unpaid billing of an
account debtor of any Station.
(b) Payments to Sellers. On or before the fifteenth day
after the end of each full calendar month during the Collection Period, Buyer
shall furnish to Sellers (i) a list of the amounts collected before the end of
such month with respect to the Accounts Receivable, and (ii) the amount
collected during such month with respect to the Accounts Receivable. On or
before the fifteenth day after the end of the Collection Period, Buyer shall
furnish Sellers with a list of all of the Accounts Receivable which remain
uncollected at the end of the Collection Period.
(c) Further Obligations. After the expiration of the
Collection Period, Buyer shall have no further obligation hereunder other than
to make the payment under Section 6.4(b), and the agency relationship
established pursuant to this Section 6.4 shall end.
6.5 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 Sellers at all times prior to the Closing. For purposes of this Agreement, a
Stations' transmission signal shall be deemed not operating in the normal and
usual manner only if (i) with respect to radio station WRMA-FM, Ft. Lauderdale,
Florida, such Station's transmission facilities operate at less than 20,000
xxxxx ERP, (ii) with respect to radio station WXDJ-FM, Homestead, Florida, such
Station's transmission facilities operate at less than 10,000 xxxxx ERP, except
during the period in which the new permanent directional antenna for such
Station is being installed (which will permit such Station to broadcast at less
than 10,000 xxxxx ERP) and (iii) any event occurs which prevents a signal
transmission by either Station in the normal and usual manner (as described in
(i) and (ii) above) for a period of seven or more consecutive days after the
date hereof. Sellers shall
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promptly give Buyer notice of the occurrence of any event described in this
Section 6.5(a), and Buyer shall have the right to terminate this Agreement upon
the occurrence of the event described in Section 6.5(a)(iii) hereof. Buyer
shall be required to notify Sellers in writing of Buyer's decision to terminate
this Agreement pursuant to this Section 6.5(a) hereof within three days of
receipt of Sellers' written notification of the event described in Section
6.5(a)(iii) hereof, or Buyer shall be deemed to have waived such termination
right.
(b) If any damage or destruction of the Assets or any other event
occurs which prevents in any material respect signal transmission by any
Station in the normal and usual manner and Sellers are unable to restore or
replace the Assets so that such conditions are cured and normal and usual
transmission is resumed in all material respects before the Closing Date, the
Closing Date shall be postponed, for a period of up to sixty days, to permit
the repair or replacement of the damage or loss.
(c) In the event of any damage or destruction of the Assets described
above, if such Assets have not been restored or replaced and such Station's
normal and usual transmission resumed within the sixty day period specified
above, Buyer may terminate this Agreement forthwith without any further
obligation hereunder by written notice to Sellers; provided, however, that such
written notice to be effective must be given by Buyer within five calendar days
following the end of such sixty day period or Buyer shall have waived such
termination rights. Alternatively, Buyer may, at its option, proceed to close
this Agreement and complete the restoration and replacement of such damaged
Assets after the Closing Date, in which event Sellers shall deliver to Buyer all
insurance proceeds received in connection with such damage or destruction of
the Assets; provided, however, that Sellers may retain the proceeds of any
business interruption insurance with respect to periods prior to the Closing.
Notwithstanding any of the foregoing, Sellers shall have no obligation to
expend their own funds to restore any damage or destruction.
6.6 Confidentiality. Except as necessary for the consummation of the
transactions 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 rules and regulations of securities markets, each party will
keep confidential any information of a confidential nature obtained from the
other parties in connection with the transactions contemplated by this
Agreement. In the event that any party hereto desires to disclose any
information concerning any other party to any third party who is not a
representative of such party, such party shall inform the other party in advance
of the reason for such disclosure, the information to be disclosed and the
identities
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of the recipients thereof. If this Agreement is terminated, each party will
return to the other parties all information obtained by such party from the
other parties in connection with the transactions contemplated by this
Agreement. The provisions of this Section shall survive and continue in full
force and effect following any termination of this Agreement.
6.7 Cooperation.
(a) The parties hereto 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 the parties hereto shall execute such other documents as may be
reasonably necessary and 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.
(b) Buyer will exercise its best efforts to have Sellers released, to
the extent reasonably possible, from further liability under the Assumed
Contracts; provided that the release of Sellers from any Assumed Contract shall
not be a condition of Sellers' or Buyer's obligations at Closing.
Notwithstanding the foregoing, and except as otherwise expressly provided in
this Agreement, Buyer shall have no obligation (i) to obtain the release of
Sellers from any Assumed Contract or to expend funds to obtain any of the
Consents and (ii) neither Buyer nor Sellers shall have any obligation to agree
to any material adverse change in any License or Assumed Contract in order to
obtain a Consent required with respect thereto or to obtain the release of
Sellers from any Assumed Contract, and Sellers shall have no obligation to
expend funds to obtain any of the Consents, except as may be required to cure
any default by Sellers under any License or Assumed Contract. In the event
Buyer is unable to successfully obtain a release of the Sellers from liability
under any Assumed Contract, Buyer shall perform its obligations, and shall
comply with all requirements, under the terms of each such Assumed Contract.
Buyer shall indemnify and hold harmless Sellers from and against any claims,
losses, damages or liabilities (including court costs and reasonable attorneys'
fees incurred at both trial and appellate levels) as a result of any actual or
alleged non-performance or non-compliance by the Buyer or any third party under
any Assumed Contract. Buyer shall timely pay any deposits required under the
terms of the Assumed Contracts.
(c) In the event that the parties are unable to obtain any Consent,
the parties shall enter into such arrangements as are deemed reasonably
necessary to provide Buyer (as Sellers' assignee), to the extent reasonably
possible, with the benefits and
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obligations of such Assumed Contract from and after the Closing Date.
6.8 Access to Books and Records. Sellers shall provide Buyer
access and the right to copy for a period of three years from the Closing Date
any books and records relating to the Assets but not included in the Assets.
Buyer shall provide Sellers access and the right to copy for a period of five
years from the Closing Date any books and records relating to the Assets that
are included in the Assets.
6.9 Observation Rights. Sellers and their representatives shall
have the right to observe any investigation of the Stations conducted by Buyer
and shall with reasonable promptness receive copies of all reports and
correspondence issued in connection therewith, which shall be subject to the
confidentiality provisions contained herein.
6.10 Tower Consents. For a period of 45 days from the date hereof,
Sellers shall use their best efforts to obtain promptly the approval by the
owners of the radio broadcasting towers used by the Sellers in connection with
the operations of the Stations (the "Tower Consents"). In the event the Sellers
are unable to obtain the Tower Consents prior to the expiration of such 45-day
period, Sellers shall promptly so notify Buyer and Buyer shall, within ten (10)
days thereafter by written notice to the Sellers, either (i) terminate this
Agreement and rescind the transaction contemplated hereby, in which case
Sellers shall have no liability or obligation to Buyer under this Agreement,
or, (ii) if Buyer shall fail to so terminate this Agreement, Buyer shall be
deemed to have waived the requirement that Sellers obtain the Tower Consents
and to have agreed to hold Sellers harmless from and against any claims
resulting from the failure to obtain the Tower Consents. Buyer shall, if
applicable, execute all such instruments and agreements reasonably required to
effectuate the intent of subsection (ii) of this Section 6.10.
SECTION 7 CONDITIONS TO OBLIGATIONS OF BUYER AND SELLERS AT CLOSING
7.1 Conditions to Obligations of Buyer. All obligations of Buyer
at the Closing are subject at the option of Buyer 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 Sellers 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, but only to the extent that the failure to be so would prevent the
transfer to Buyer of good
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and valid title in and to the FCC Licenses pursuant to this Agreement.
(b) Covenants and Conditions. Sellers 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 them prior to or
on the Closing Date, but only to the extent that the failure to so perform and
comply would prevent the transfer to Buyer of good and valid title in and to the
FCC Licenses and all material assets necessary to operate the Stations pursuant
to this Agreement.
(c) FCC Consent. The FCC Consent shall have been granted
without the imposition on Buyer of any conditions that need not be complied with
by the Buyer under Section 6.1 hereof and Sellers shall have complied with any
conditions imposed on them by the FCC Consent.
(d) HSR Act. The waiting period under the HSR Act shall have
expired or been terminated without unresolved action by the Department of
Justice ("DOJ") or the Federal Trade Commission ("FTC") to prevent the Closing.
(e) Minimum Purchase Price. The Purchase Price shall not have
been reduced to below $104,210,500 as a result of the adjustment provided by
Section 2.3(c) hereof.
7.2 Conditions to Obligations of Sellers. All obligations of
Sellers at the Closing are subject at Sellers' 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 paid the
Purchase Price and 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) FCC Consent. The FCC Consent shall have been granted
without the imposition on Sellers of any conditions that need not be complied
with by Sellers under Section 6.1 hereof and Buyer shall have complied with any
conditions imposed on it by the FCC Consent.
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(d) HSR Act. The waiting period under the HSR Act thereunder shall
have expired or been terminated without unresolved action by the DOJ or FTC to
prevent the Closing.
(e) Minimum Purchase Price. The Purchase Price shall not have been
reduced to below $104,210,500 as a result of the adjustment provided by Section
2.3(c) hereof.
(f) Employment Agreement. Buyer shall have executed the Employment
Agreement between Buyer and Xxxxxxx X. Oasis in the form attached hereto as
Exhibit A.
SECTION 8 CLOSING AND CLOSING DELIVERIES
8.1 Closing.
(a) Closing Date. Subject to the satisfaction or, to the extent
permissible by law, waiver (by the party for whose benefit the closing
condition is imposed) on the date scheduled for Closing of the closing
conditions described in Section 7 hereof, the Closing shall take place at 12:01
p.m., Miami, Florida time, on a date not later than fifteen days following the
date on which the FCC Consent has become a Final Order, which date of Closing
shall be specified by Buyer to Sellers on not less than ten nor more than
twelve days written notice to Sellers, or, if Buyer shall have waived the
condition precedent of a Final Order on the date specified by Buyer to Sellers,
on not less than ten nor more than twelve days written notice, following the
later of the effective date of the FCC Consent or the waiver by Buyer of such
condition precedent (or, if either such date is a Saturday, Sunday or federal
holiday, on the next business day thereafter) or on such other date as may be
set by mutual agreement of Buyer and Sellers; provided that if the Closing as
determined hereunder would occur prior to January 1, 1997, Sellers may in their
sole and absolute discretion extend the Closing to a date prior to February 28,
1997; and provided, further, that, in the event that the wire transfer of the
Purchase Price is received by each of the Sellers later than 2:00 p.m., Miami,
Florida time on the Closing Date, then Sellers shall be entitled to interest on
the Purchase Price from the Closing Date to the next business day following the
Closing Date at a rate equal to the prime rate as publicly announced on the
Closing Date by Citibank N.A. as its prime rate. Notwithstanding the foregoing,
if on the date otherwise scheduled for Closing pursuant to the preceding
sentence, the conditions have not been satisfied, the party for whose benefit
such conditions have been imposed may elect to postpone the Closing, and the
Closing shall thereafter take place on a date specified by written notice from
such party, which date shall be not less than five days nor more than ten days
after the satisfaction or waiver of such conditions precedent (but not later
than June 30, 1997). The Closing shall take place at the
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offices of Greenberg, Traurig, Hoffman, Lipoff, Xxxxx & Xxxxxxx, P.A., Miami,
Florida.
8.2 Deliveries by Sellers. Prior to or on the Closing Date, Sellers
shall deliver to Buyer the following, in form and substance reasonably
satisfactory to Buyer:
(a) Transfer Documents. Duly executed warranty bills of sale, 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 any Liens other than Permitted Liens;
(b) Officer's Certificate. A certificate, dated as of the Closing
Date, executed by an executive officer of Sellers on behalf of Sellers,
certifying (1) that the representations and warranties of Sellers 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 Sellers have in all
material respects performed and complied with all of their obligations,
covenants, and agreements set forth in this Agreement to be performed and
complied with on or prior to the Closing Date;
(c) Opinion of Counsel. Opinion of Sellers' counsel dated as of the
Closing Date, in substantially the form attached hereto as Exhibit B;
(d) Corporate Documents. (i) Resolutions of Sellers' shareholders
and Board of Directors authorizing the execution, delivery and performance of
the transactions contemplated hereby certified by Sellers' secretary and (ii)
the certificates of incorporation and good standing certificates of Sellers
certified by the Secretary of State of Florida as of a date no earlier than
thirty days prior to the Closing Date; and
(e) Financial Statements. The Closing Unaudited Financial Statements
required by Section 5.14 hereof.
(f) Non-competition Agreements. Non-competition Agreements,
substantially in the form attached hereto as Exhibit C, duly executed by each
of Xxxxxxx X. Oasis and Xxxx Xxxxxxxx in favor of the Buyer.
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer shall
deliver to Sellers the following, in form and substance reasonably satisfactory
to Sellers:
(a) Purchase Price. The Purchase Price as provided in Section 2.3(a);
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(b) Assumption Agreements. Duly executed assumption
agreements pursuant to which Buyer shall assume and undertake to perform
Sellers' obligations under the Licenses and Assumed Contracts arising on or
after the Closing Date;
(c) Officer's Certificate. A certificate, dated as of the
Closing Date, executed by an executive officer of Buyer 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 in substantially the form attached hereto as Exhibit D;
(e) Corporate Documents. (i) Resolutions of Buyer's Board of
Directors authorizing the execution, delivery and performance of the
transactions contemplated hereby certified by Buyer's secretary and (ii) the
certificate of incorporation and a good standing certificate of Buyer certified
by the Secretary of State of Delaware as of a date no earlier than thirty days
prior to the Closing Date.
SECTION 9 TERMINATION
9.1 Termination by Sellers. This Agreement may be terminated by
Sellers without prejudice to its rights hereunder and the purchase and sale of
the Stations abandoned, if Sellers are 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 Sellers set
forth in this Agreement have not been satisfied in all material respects or
waived in writing by Sellers.
(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
June 30, 1997.
9.2 Termination by Buyer. This Agreement may be terminated by
Buyer and the purchase and sale of the Stations abandoned, if
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Buyer is not then in material default, upon written notice to Sellers, 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 have not been satisfied in all material respects or
waived in writing by Buyer (or otherwise waived pursuant to the terms of this
Agreement).
(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
June 30, 1997.
(d) Interruption of Service. If Buyer exercises its right to
terminate as set forth in Section 6.5(a)(iii).
9.3 Letter of Credit. Simultaneously with the execution and
delivery of this Agreement, Buyer has delivered to Sellers a letter of credit
in the principal amount of ten million dollars ($10,000,000) (the "Letter of
Credit") for purposes of securing all or a portion of Buyer's obligations under
the terms of this Agreement. The parties acknowledge and understand that the
terms of the Letter of Credit shall provide that in the event of a default
under this Agreement by the Buyer which would allow Seller to terminate this
Agreement, the full face amount of the Letter of Credit, or ten million dollars
($10,000,000) (the "Face Amount"), shall be drawn by the Sellers upon
presentment to the bank of an affidavit signed by at least two of the
Designated Officers or their respective personal representatives or executors
attesting under oath to such default by the Buyer. Each of Xxxx Xxxxxxxx,
Xxxxxxx Oasis and Xxxxxx Xxxxxxxx shall individually indemnify and hold
harmless Buyer from and against any amount drawn on the Letter of Credit, plus
any interest paid by Buyer on such amount, in the event it is determined in
accordance with Section 11.2 of this Agreement that Sellers presentment of the
Letter of Credit was wrongful.
9.4 Rights on Termination. If this Agreement is terminated by
Sellers in the event of a default of this Agreement by Buyer that would permit
Sellers to terminate this Agreement and if Buyer has not breached Section 5.22
of this Agreement, then the payment of $10,000,000 to Sellers pursuant to the
Letter of Credit shall be deemed to be liquidated damages and shall constitute
full payment and the exclusive remedy for any damages suffered by Sellers due
to such breach of this Agreement by Buyer, except as provided below. Sellers
and Buyer agree in advance that actual damages are difficult to ascertain and
that the payment of $10,000,000 pursuant to the Letter of Credit would be a
fair and equitable payment upon
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a default of this Agreement by Buyer that would permit Sellers to terminate
this Agreement, if Buyer has not breached Section 5.22 hereof. In the event
that Buyer breaches the provisions of Section 5.22 and fails to close the
transaction contemplated by this Agreement for any reason other than as a
result of a breach by Sellers of the provisions of this Agreement that would
permit Buyer to terminate this Agreement pursuant to Section 9.2, then in
addition to the $10,000,000 payment to Sellers pursuant to the Letter of
Credit, Buyer shall be required to pay Sellers an additional $20,000,000 (the
"Additional Payment"), or a total of $30,000,000 including the Letter of Credit
(together, the "Liquidated Payment") upon written demand of Sellers, (together
with interest at the highest rate permitted by Florida law commencing three
business days following receipt by Buyer of such written demand and until paid).
The Liquidated Payment shall be deemed to be liquidated damages and shall
constitute full payment for the damages suffered by Sellers due to such breach
of this Agreement by Buyer, including a breach of Section 5.22 hereof. Sellers
and Buyer agree in advance that actual damages are difficult to ascertain and
that the Liquidated Payment is fair and equitable, to reimburse Sellers for
damages sustained due to such breach of this Agreement by Buyer, including the
breach of Section 5.22 hereof, particularly because the consummation of any
transaction contemplated by said Section 5.22 would likely eliminate all viable
competing interests to acquire the Stations, thereby significantly diminishing
the value of the Stations. If Buyer enters into a Sale Agreement within 6
months of a termination of this Agreement, and Sellers shall not have been in
breach of this Agreement at the time the Agreement was terminated, which breach
would have permitted Buyer to terminate this Agreement pursuant to Section 9.2
hereof, such Sale Agreement will be deemed for purposes of this Agreement to
have been entered into as of a period of time 6 months prior to the execution
thereof and Sellers will be entitled to the Liquidated Payment as provided
above. If this Agreement is terminated by Buyer due to Sellers' breach of any
provision of this Agreement, the amount of damages which Buyer shall be
entitled to recover against Sellers in the event that Sellers fail to
consummate the transactions contemplated hereunder shall be limited as set
forth in Section 10.5(c) hereof.
9.5 Specific Performance. The parties recognize that if, prior to
Closing, Sellers breach this Agreement and refuse 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, to obtain specific performance of
the terms of this Agreement prior to Closing. If any action is brought by
Buyer to specifically perform this Agreement prior to Closing, Sellers shall
waive the defense that there is an adequate remedy at law. Following the
Closing, Buyer shall be entitled, in addition to any other remedies that may be
available, to seek
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specific performance of the terms of this Agreement if such remedy is available
at equity. If Buyer obtains specific performance of Sellers' agreement to sell
the Stations to Buyer, Sellers shall not be liable to Buyer for money damages
as a result of Sellers' breach of their agreement to sell the Stations, but
Sellers shall nevertheless continue to be required to indemnify Buyer under
Section 10 of this Agreement. Notwithstanding anything to the contrary, in no
event shall Buyer be entitled to acquire by specific performance or otherwise a
single station constituting the Stations.
9.6 Procedure to Obtain Injunction upon Termination. Upon
termination by Sellers of this Agreement, in the event Buyer desires to obtain
an injunction (an "Injunction") prohibiting the sale of the Stations by the
Sellers to a third party, Buyer shall be required to commence a legal
proceeding seeking such Injunction (a "Legal Proceeding") within 20 days
following such termination in a court of competent jurisdiction in Dade county,
Florida (the "Court"). Prior to or contemporaneous with the commencement of any
Legal Proceeding by Buyer seeking an Injunction, Buyer shall either (i) post
with the Court a bond issued by a A+Best rated insurance company licensed to
do business in Florida in the amount of $110,000,000 or (ii) deposit
$110,000,000 in cash with the Registry of the Court. In the event that Buyer
does not obtain an Injunction issued by the Court which enjoins the sale of the
Stations within 30 days following the commencement of the Legal Proceeding,
Sellers shall be permitted to enter into a transaction or a series of
transactions with a third party involving a sale of the Sellers, the Stations
or the Assets.
Upon termination by Buyer of this Agreement, then Buyer must tender the
Purchase Price to the Court in the Legal Proceeding to be able to obtain an
Injunction if Buyer is otherwise permitted to obtain such Injunction.
9.7 Buyer Covenants on Termination. If this Agreement is
terminated without a Closing for any reason, Buyer shall not, and Buyer shall
ensure that no Affiliate of Buyer shall, for a period of two years after
termination, directly or indirectly hire any employee of either of the Stations
that is employed at any time from the date hereof or induce any such employee
to leave employment with either of the Stations.
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 Date for a
period of eighteen months.
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10.2 Indemnification by Sellers. After the Closing, Sellers hereby
agree 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 Sellers contained in this Agreement or in any certificate,
document, or instrument delivered to Buyer under this Agreement which by its
express terms survives the Closing.
(b) Any and all obligations of Sellers not assumed by Buyer
pursuant to this Agreement, including, without limitation, any liabilities
arising at any time under any Contract not included in the Assumed Contracts.
(c) Any and all losses, liabilities, or damages resulting from
the operation or ownership of the Stations prior to the Closing, including any
liabilities arising under the Licenses or the Assumed Contracts which relate to
events occurring prior the Closing Date.
(d) Any and all out-of-pocket costs and expenses, including
reasonable legal fees and expenses, incident to any action, suit, proceeding,
claim, demand, assessment, or judgment, incident to 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. After the Closing, Buyer hereby
agrees to indemnify and hold Sellers harmless against and with respect to, and
shall reimburse Sellers 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 Sellers under this Agreement which by its express
terms survives the Closing.
(b) Any and all obligations of Sellers assumed by Buyer
pursuant to this Agreement.
(c) Any and all losses, liabilities, or damages resulting from
the operation or ownership of the Stations on and after the Closing.
(d) Any and all out-of-pocket costs and expenses, including
reasonable legal fees and expenses, incident to any action, suit, proceeding,
claim, demand, assessment, or judgment, incident to the foregoing or incurred
in investigating or attempt-
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ing 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 ten
business days after written notice of such action, suit, or proceeding was
given to Claimant.
(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 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 and the Indemnifying Party shall have no further obligation with respect
thereto. 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 Claimant
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, it shall do so at its own expense and the Claimant shall
have the right to participate in the defense of such claim at its own expense.
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 in good faith by the Claimant with respect to such claim;
provided, however, that the Claimant shall not agree to any settlement with
respect to any claim requiring payment or other consideration in
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39
excess of $10,000 without giving the Indemnifying Party at least five business
days' prior written notice.
(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.
(e) The Indemnification rights provided in Sections 10.2, 10.3
and 10.4 shall extend to the shareholders, partners, directors, officers,
employees, representatives and successors 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, to the extent
reasonably possible. Claims of such Persons shall be deemed claims solely
between the parties and not third party claims.
10.5 Certain Limitations. Notwithstanding anything in this Agreement
to the contrary,
(a) Sellers shall not indemnify or otherwise be liable for any
breach of a representation or warranty, or for the breach of any covenant
contained in this Agreement, except to the extent the losses, obligations,
liabilities, costs and expenses arising therefrom exceed in the aggregate
$25,000;
(b) Buyer shall not indemnify or otherwise be liable for any
breach of a representation or warranty of for the breach of any covenant
contained in this Agreement, except to the extent the losses, obligations,
liabilities, costs and expenses arising therefrom exceed in the aggregate
$25,000;
(c) Sellers shall not indemnify or otherwise be liable with
respect to any claim for any breach of a representation or warranty, for the
breach of any covenant in this Agreement or for any other reason unless notice
of the claim is given within eighteen months after the Closing Date and,
provided further, that Sellers' liability hereunder shall be limited to three
million dollars ($3,000,000) in the aggregate for all claims.
10.6 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 (whether incurred in
arbitration, at trial or an appeal).
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40
SECTION 11 MISCELLANEOUS
11.1 Fees and Expenses. Sellers and Buyer shall each pay one-half of any
filing fees, transfer taxes, sales taxes, or other similar charges levied by
any governmental entity, in connection with the sale transactions contemplated
by this Agreement. Buyer and Sellers shall each pay one-half of (i) the fees
payable to the FCC in connection with the filing of the applications for the
FCC Consent and (ii) the fee imposed by the FTC made pursuant to the HSR Act.
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, and each party shall be responsible
for all fees or commissions payable to any finder, broker, advisor, or similar
person retained by or on behalf of such party. Sellers shall not pay any
fees or expenses relating to the financing by Buyer of the transactions
contemplated hereby.
11.2 Arbitration. Except as provided in Section 2.3(d)(4) hereof, any
dispute arising out of or related to this Agreement that Sellers and Buyer are
unable to resolve by themselves shall be settled by arbitration in the State of
Florida, by a panel of three arbitrators. Sellers as a group and Buyer shall
each designate one arbitrator, and the two arbitrators so designated shall
select the third arbitrator. 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 in accordance with the terms of this Agreement. The
arbitration hearing shall be conducted in accordance with the commercial
arbitration rules of the American Arbitration Association. The written decision
of a majority of the arbitrators shall be final and binding on Sellers and
Buyer. The costs and expenses of the arbitration proceeding shall be assessed
among the parties hereto 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. Judgment on the award, if it is not paid within thirty days,
may be entered in any court having jurisdiction over the matter as set forth in
Section 11.3.
11.3 Submission to Jurisdiction; Venue. The parties hereto hereby
irrevocably consent that any suit, legal action or proceeding against any party
or its property with respect to this Agreement must be brought in any court
(whether state or federal) located in Dade County, Florida, as the party filing
the action elects, and, by execution and delivery of this Agreement, each of
the parties hereto hereby irrevocably submits to and accepts the jurisdiction
of the aforesaid courts. The parties hereby irrevocably waive any objection
they may now or hereafter have to the laying of venue of any suit, legal action
or proceeding relating to
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41
this Agreement in any court located in Dade County, Florida and hereby further
irrevocably waive any claim that a court located in Dade County, Florida is not
a convenient forum for any such suit, legal action or proceeding.
11.4 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 Sellers: NEW AGE BROADCASTING, INC.
0000 Xxxxx Xxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxx Oasis, President
THE SEVENTIES BROADCASTING CORPORATION
0000 Xxxxx Xxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxx Oasis, President
With copies to: Xxxxx X. Xxxxxxx, Esq.
Greenberg, Traurig, Hoffman,
Lipoff, Xxxxx & Quentel, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Xxxx X. Xxxxxxxx
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Xxxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxx X-X
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Xxxxxxx Oasis
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
If to Buyer: Spanish Broadcasting System, Inc.
00 Xxxx 00 Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attn: Xxxx Xxxxxxx, President
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42
With a copy to: Xxxxx X. Xxxxxxxx, Esq.
Xxxx, Scholer, Fierman,
Xxxx & Handler, LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
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.
11.5 Benefit and Binding Effect. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interest or obligations hereunder shall be
assigned by any party hereto without the prior written consent of the other
party. This Agreement is not intended to, and shall not, confer upon any other
person except the parties hereto any rights or remedies hereunder.
11.6 Further Assurances; Reasonable Consent. The parties shall take
any actions and execute any other documents that may reasonably be necessary or
desirable to the implementation and consummation of this Agreement, including,
in the case of Sellers, any additional bills of sale, 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. When its consent under this Agreement is requested,
each party agrees to respond promptly and reasonably to the request.
11.7 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).
11.8 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.
11.9 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.
11.10 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
among the parties hereto with respect to the subject matter hereof. This
Agreement supersedes all prior negotiations, agreements and understandings
between
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43
the parties and cannot be amended, supplemented or changed or any of its terms
waived except by an agreement in writing that makes specific reference to this
Agreement and which is signed (in the case of Sellers by the Designated
Officers) by the party against which enforcement of any such amendment,
supplement, or modification is sought.
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 Section 11.10 and in this Section
11.11.
11.12 Counterparts. This Agreement may be signed in counterparts with
the same effect as if the signature on each counterpart were upon the same
instrument.
11.13 Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, remainder of this Agreement and the application of
such provision to other persons or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by law.
11.14 Press Releases. No press releases or other public announcements
concerning this Agreement shall be made by any party hereto without the prior
written consent of the other party unless the first such party is legally
compelled to do so, including, because of disclosure requirements of federal or
state securities laws or rules and regulations of securities markets, in which
case such party shall be obligated to consult with the other party concerning
the content of such announcement and the reasons therefor.
11.15 Sellers' Knowledge. Whenever a representation, warranty or
covenant contained herein is qualified by the phrase "to Sellers' knowledge" or
other similar phrase, such representation, warranty or covenant is made based on
the actual knowledge of the officers of Sellers.
[SIGNATURE PAGE FOLLOWS]
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44
IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ Xxxx Xxxxxxx, Xx.
------------------------------
Xxxx Xxxxxxx, Xx.
President
/s/ Xxxx Xxxxxxx Xx.
------------------------------
Xxxx Xxxxxxx, Xx.
(as to Section 5.22 hereof only)
NEW AGE BROADCASTING, INC.
By: /s/ Xxxxxxx X. Oasis
------------------------------
Xxxxxxx X. Oasis
President
THE SEVENTIES BROADCASTING CORPORATION
By: /s/ Xxxxxxx X. Oasis
-------------------------------
Xxxxxxx X. Oasis
President
THE FOLLOWING PERSONS ARE SIGNATORIES TO THIS
AGREEMENT WITH RESPECT ONLY TO SECTION 9.3
HEREOF:
/s/ Xxxx Xxxxxxxx
---------------------------------
Xxxx Xxxxxxxx
/s/ Xxxxxxx Oasis
--------------------------------
Xxxx Oasis
/s/ Xxxxxx Xxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxx
- 44 -
45
EX 2.3(c)
COMBINED STATEMENT OF CASH FLOW
12 MONTHS ENDING AUGUST 31, 1996
NET INCOME PER STATEMENTS $5,769,722
ADD: DEPRECIATION $ 323,761
AMORTIZATION 786,635
INTEREST 2,197,383
OFFICER'S SALARY 272,918
OFFICER'S HEALTH INS. 3,660
TRADE EXPENSES 245,892
NAT'L REP COMM. 13,197
LEGAL RE: TAK 158,963
LEGAL RE: CITY OF LIC. 13,204
LEGAL RE: XXXXXX 63,805
LEGAL RE: OTHER ACQ. 684
ENG. RE: CITY OF LIC. 9,312
ENG. RE: AUX. SITE 4,218
TRAVEL RE: TAK 10,628
TRAVEL RE: ACQUIS. 2,397
WRMA-FM TOWER 48,220 4,154,877
----------
LESS: NAT'L REP COMM. $ 60,367
TRADE INCOME 180,116
INTEREST INCOME 48,138 (288,621)
---------- ----------
NET CASH FLOW COMBINED $9,635,978
