Exhibit 10.02
Asset Purchase Agreement
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), is made this _______ day
of October, 1999 by and among NextMedia Group, LLC, a Delaware limited liability
company ("Buyer") and Empire Broadcasting System LLP, a Florida limited
liability partnership ("Seller").
W I T N E S S E T H :
WHEREAS, Seller owns certain assets used in connection with the operation
of FM broadcasting station WILN, 106.3 Mhz, Panama City, Florida ("WILN")
including the broadcast license issued by the Federal Communications Commission
("FCC") for WILN;
WHEREAS, Seller owns certain assets used in the operation of FM broadcast
station WYYX, 97.7 MHz, Bonifay, Florida ("WYYX") under a Time Brokerage
Agreement with Xxxx X. Xxxxxx (the "WYYX TBA");
WHEREAS, Seller has entered into a certain WYYX Asset Purchase Agreement
dated December 28, 1998 with Xxxx X. Xxxxxx to the purchase the Assets of WYYX,
including WYYX's FCC license (the "WYYX Purchase Agreement"); and
WHEREAS, Buyer desires to acquire from Seller and Seller desire to sell to
Buyer substantially all of the assets owned or to be acquired by Seller, used in
or useful to the operation of
1
WILN and WYYX (the "Stations");
WHEREAS, Buyer and Seller desire that Buyer present programs on the
Stations through a Time Brokerage Agreement for WILN (the "WILN TBA") and
through an assignment to Buyer of the WYYX TBA;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto, intending to
be legally bound hereby agree as follows:
ARTICLE 1
PURCHASE OF ASSETS
------------------
1.1. Transfer of Assets. On the terms and subject to the conditions hereof
------------------
and subject to Section 1.2, on the Closing Date (as hereinafter defined), Seller
shall assign, transfer, convey and deliver to Buyer and Buyer shall acquire and
assume from Seller, all of the right, title and interest of Seller in and to
all of the following assets, properties, interests and rights of Seller
(collectively the "Station Assets") free and clear of all liens, claims, or
encumbrances other than Permitted Liens (as defined in Section 6.1.10):
1.1.1 All of Seller's rights in and to the licenses, permits and other
authorizations issued to Seller by any governmental authority, including those
issued by the Federal Communications Commission (the "FCC") (hereafter referred
to as the "Station Licenses"), used in connection with the operation of the
Stations, along with renewals or modifications of such items from the date
hereof through the Closing Date, including but not limited to those listed in
Schedule 1.1.1 hereto;
2
1.1.2 All equipment, office furniture and fixtures, office materials
and supplies, inventory, spare parts and all other tangible personal property of
every kind and description, and Seller's rights therein, owned, leased or held
by Seller and used in or useful to the operations of the Stations, including but
not limited to those items described or listed in Schedule 1.1.2 hereto,
together with any replacements thereof, improvements or additions thereto made
from the date hereof through the Closing Date, and less any retirements or
dispositions thereof made from the date hereof through the Closing Date in the
ordinary course of business of Seller;
1.1.3 All of Seller's rights in and under those contracts, agreements,
leases and legally binding contractual rights of any kind, written or oral,
relating to the operation of the Stations ("Contracts") that are listed in
Schedule 1.1.3 hereto and (i) those Contracts entered into by Seller from the
date hereof through the Closing Date in the ordinary course of business of
Seller, subject to Section 1.2.4, and Section 8.1; (ii) all Contracts for the
sale of advertising time, subject to Section 8.1 hereto; and (iii) all Contracts
for consideration other than cash, such as merchandise, services or promotional
consideration ("Trade Agreements"), subject to Section 17.10 hereto.
1.1.4 All of Seller's rights in and to all processes, patents, trade
secrets, proprietary information, call letters, trademarks, trade names, service
marks, franchises, copyrights, Internet domain names, including registrations
and applications for registration of any of them, computer software programs and
programming material of whatever form or nature, jingles, slogans, the Stations'
logos and all other logos or licenses to use same and all other intangible
property rights of Seller, which are used in connection with the operation of
the Stations, including but not limited to
3
those listed in Schedule 1.1.4 hereto (collectively, the "Intellectual
Property") together with any associated good will and any additions thereto
between the date hereof and the Closing Date;
1.1.5 All of Seller's rights in and to all the files, documents,
records, and books of account relating to the operation of the Stations or to
the Station Assets, including, without limitation, each Station's public files,
programming information and studies, technical information and engineering data,
news and advertising studies or consulting reports, marketing and demographic
data, sales correspondence, lists of advertisers, promotional materials, credit
and sales reports and filings with the FCC, originals of all written Contracts
to be assigned hereunder, logs, software programs and books and records relating
to employees, financial, accounting, operation and technical matters; but
excluding records relating solely to any Excluded Asset (as hereinafter
defined);
1.1.6 All of Seller's rights under manufacturers' and vendors'
warranties relating to items included in the Station Assets and all similar
rights against third parties relating to items included in the Station Assets;
1.1.7 All real property owned by Seller together with all appurtenant
easements thereunto and all structures, fixtures and improvements located
thereon used in connection with the Stations operations as more fully described
in Schedule 1.1.7 hereto, together with any additions thereto from the date
hereof through the Closing Date ("Owned Real Estate");
4
1.1.8 All rights and interests of Seller under any and all of the
leases of real property used in connection with the Stations' operations (the
"Leased Real Estate") (collectively with the Owned Real Estate, the "Real
Estate") which Leased Real Estate is identified and described in Schedule 1.1.8;
1.1.9 All such other assets, properties, interests and rights owned by
Seller that are used in connection with the business and operation of the
Stations or that are located as of the Closing Date on the Real Estate, except
Excluded Assets;
1.1.10 All of Seller's rights in and to all causes of action for any
past infringement of any of the Intellectual Property.
1.2 Excluded Assets. Notwithstanding anything to the contrary contained
---------------
herein, it is expressly understood and agreed that the Station Assets shall not
include the following assets or any right, title or interest therein (the
"Excluded Assets"):
1.2.1 All cash, marketable securities, and cash equivalents of Seller
on hand and/or in banks;
1.2.2 All accounts receivable or notes receivable of Seller.
1.2.3 All tangible and intangible personal property of Seller disposed
of or consumed
5
in the ordinary course of business of Seller between the date hereof and the
Closing Date, as permitted hereunder;
1.2.4 All Contracts that have terminated or expired on or prior to the
Closing Date in the ordinary course of business of Seller;
1.2.5 Seller's corporate seals, minute books, charter, limited
liability company, and/or partnership documents, corporate stock record books
and such other books and records as pertain to the organization, existence,
share capitalization or partnership interests of Seller and duplicate copies of
such financial records as are necessary to enable Seller to file its tax returns
and reports as well as any other records or materials relating to Seller
generally;
1.2.6 Contracts of insurance and all insurance proceeds or claims made
by Seller arising or related to the Station Assets prior to Closing (except to
the extent made after the date hereof with respect to Station Assets);
1.2.7 The Employee Benefit Plans (as defined hereinafter) and the
assets thereof;
1.2.8 Any right to use the names "Empire Broadcasting" and any
variations thereof;
1.2.9 All contracts entered into before this Agreement and not listed
in Schedule 1.1.3.;
6
1.2.10 Those specific assets identified on the Excluded Assets
Schedule attached to this Agreement as Schedule 1.2.10;
1.2.11 Except as described in Section 1.1.10, all of Seller's rights
in and to all causes of action; and
1.2.12 All tax refunds relating to the period prior to the Closing;
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
-------------------------
2.1 Assumption of Obligations. Subject to the provisions of this Section
-------------------------
2.1 and Section 2.2, on the Closing Date, Buyer shall assume the obligations of
Seller arising or to be performed after the Closing Date under the Contracts
referred to in Section 1.1.3 hereto in effect on the Closing Date, and all
liabilities and obligations that arise from the ownership or operation of the
Station Assets after the Closing Date. All of the foregoing liabilities and
obligations shall be referred to herein collectively as the "Assumed
Liabilities."
2.2 Retained Liabilities. Notwithstanding anything contained in this
--------------------
Agreement to the contrary, Buyer does not assume or agree to pay, satisfy,
discharge or perform, and will not be deemed by virtue of the execution and
delivery of this Agreement or any document delivered at the execution of this
Agreement, or as a result of the consummation of the transactions contemplated
by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge
or perform, any
7
liability or obligation of the Seller other than the Assumed Liabilities,
including any of the following liabilities or obligations of the Seller (the
"Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or
Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other
provisions of this Agreement, tax liabilities of any and all kinds (federal,
state, local, and foreign) of Seller including, without limitation, any
liabilities for taxes on or measured by income, liabilities for withheld federal
and state income taxes and employee F.I.C.A. (Federal Insurance Contribution
Act) or employer F.I.C.A., and liabilities for income taxes arising as a result
of the transfer of the Station Assets or otherwise by virtue of the consummation
of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller
or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by
Seller or any predecessor or Affiliate of Seller of any of the terms or
conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or
Affiliate of Seller resulting from, caused by or arising out of, any violation
of law;
8
2.2.6 Any claims, liabilities, and obligations of Seller as an
employer, including, without limitation, liabilities for wages, supplemental
unemployment benefits, vacation benefits, severance benefits, retirement
benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or
any other employee benefits, withholding tax liabilities, workers' compensation,
or unemployment compensation benefits or premiums, hospitalization or medical
claims, occupational disease or disability claims, or other claims attributable
in whole or in part to employment or termination by Seller or arising out of any
labor matter involving Seller as an employer, and any claims, liabilities and
obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating
to any litigation, proceeding, or investigation of any nature arising out of the
operations of the Stations on or prior to the Closing Date including, without
limitation, any claims against or any liabilities for injury to or death of
persons or damage to or destruction of property, any workers' compensation
claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other
indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to
comply with or imposed pursuant to any environmental protection, health, or
safety laws or regulations or resulting from the generation, storage, treatment,
transportation, handling, disposal, release of hazardous substances, solid
wastes, and liquid and gaseous matters by Seller and by any other person in
relation
9
to Seller or the Stations, including, without limitation, any liability or
obligation for cleaning up waste disposal sites from or related to acts or
omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with
negotiating, preparing, closing, and carrying out this Agreement and the
transactions contemplated by this Agreement, including, without limitation, the
fees and expenses of Seller's attorneys, accountants, consultants and brokers.
ARTICLE 3
CONSIDERATION
-------------
3.1 Delivery of Consideration. In exchange for the Station Assets, in
-------------------------
addition to the assumption of certain obligations of Seller pursuant to Section
2.1 above, Buyer shall, subject to Articles 11 and 12 hereof, at the Closing (as
hereinafter defined) deliver to Seller: Four Million Seven Hundred Thousand
Dollars ($4,700,000.00) (subject to adjustment, the "Purchase Price"); by wire
transfer of immediately available funds, adjusted pursuant to the provisions of
Section 3.3., and the $100,000 Holdback Amount required by Section 8.10, below.
3.2 Allocation of Consideration. Within thirty (30) days after the
---------------------------
Closing Date, Seller and Buyer shall negotiate in good faith an allocation of
the total consideration among the Station Assets (the "Allocation"). In
connection with the Allocation, Buyer will negotiate in good faith to
accommodate Seller's proposed division of the Purchase Price between stations
WILN and WYYX, provided however Buyer shall not be required to accept any such
proposed division that adversely
10
affects Buyer. If the Allocation is not agreed upon within thirty (30) days
after the Closing Date, Buyer will order an appraisal of the Station Assets from
Broadcast Investments Analysts ("BIA") and BIA will determine the Allocation.
The appraisal, if required, shall be provided to Seller within forty five (45)
days after it is ordered. Buyer and Seller agree to prepare and file all income
tax returns (including, if applicable, Form 8594) in a manner consistent with
the Allocation and will not in connection with the filing of such returns make
any allocation that is contrary to the Allocation. Buyer and Seller agree to
consult with each other with respect to all issues related to the Allocation in
connection with any tax audits, controversy or litigation. The fees for BIA
shall be borne by Buyer.
3.3 Allocations and Prorations.
--------------------------
3.3.1 Subject to the WILN TBA and Seller's assignment and Buyer's
assumption of the WYYX TBA as set forth in Section 10.9, the operation of the
Stations and the income and expenses attributable thereto through 11:59 p.m. on
the Closing Date (the "Effective Time") shall be for the account of Seller and
thereafter shall be for the account of Buyer. Expenses for goods and services
received both before and after the Effective Time, utilities charges, ad
valorem, real estate, property and other taxes (other than income taxes, which
shall be Seller's sole responsibility for all taxable periods ending prior to
and including the Closing Date, and those taxes arising from the sale and
transfer of the Station Assets, which shall be paid as set forth in Section
13.2), income and expenses under the Contracts (other than Trade Agreements),
prepaid expenses, music and other license fees (including any retroactive
adjustments thereof), wages, salaries, and other employee
11
benefit expenses (whether such wages, salaries or benefits are current or
deferred expenses) (including, without limitation, liabilities accrued up to the
Effective Time for bonuses, commissions, vacation pay, payroll taxes, workers'
compensation and social security taxes) and rents and similar prepaid and
deferred items shall be prorated between Seller and Buyer in accordance with the
foregoing. Notwithstanding the foregoing, no proration shall be made with
respect to (i) severance or sick leave with respect to any employee or (ii) any
prepaid expense or other deferred item unless Buyer will receive a benefit in
respect of such prepayment or deferral after the Effective Time. For purposes of
this Section 3.3.1, ad valorem and other real estate taxes shall be apportioned
on the basis of the taxes assessed for the most recently-completed calendar
year, with a reapportionment as promptly as practicable after the tax rates and
real property valuations for the calendar year in which the Closing occurs can
be ascertained. In addition, Buyer shall be entitled to a credit in this
proration process for the amount of any taxes (or other governmental charges)
that are due and payable by Seller, but are being contested by Seller in good
faith in appropriate proceedings and are secured by Liens on the Station Assets
that have not been removed as of or before the Closing (but once such amounts
are finally determined, Buyer shall use such credit to remove such liens and
return to the excess of (i) the amount of such credit minus (ii) the amount of
-----
such taxes or other governmental charges as finally determined, or Seller shall
pay to Buyer the deficiency, as appropriate).
3.3.2 Allocation and proration of the items set forth in Subsection
3.3.1 above shall be made by Buyer and a statement thereof given to Seller
within thirty (30) days after the Closing Date. Seller shall give written notice
of any objection thereto within twenty (20) business days after
12
delivery of such statement, detailing the reason for such objection and stating
the amount of the proposed final allocation and proration. If a timely objection
is made and the parties cannot reach agreement within thirty (30) days after
receipt of the objection as to the amount of the final allocation and proration,
the matter shall be referred to Xxxxxx Xxxxxxxx, L.L.P. (the "Independent
Auditor") to resolve the matter, whose decision will be final and binding on the
parties, and whose fees and expenses shall be borne by Buyer and Seller in
accordance with the following: each party shall pay an amount equal to the sum
of all fees and expenses of the Independent Auditor on a proportional basis
taking into account the amount of the net allocation and proration proposed by
each of Buyer and Seller and the amount of the final allocation and proration
determined by the Independent Auditor (for example, if Buyer proposed a payment
of $10 to Seller, Seller proposed a payment of $100, and the Independent Auditor
proposed a payment of $30, Buyer would pay 20/90ths of the Independent Auditor's
fees and Seller would pay 70/90ths of those fees based on the $90 in dispute
between the parties).
ARTICLE 4
CLOSING
-------
4.1. Closing. The consummation of the transactions contemplated herein
-------
(the "Closing") shall occur, except as otherwise mutually agreed upon by Buyer
and Seller (i) within ten (10) business days after the FCC Consents (as
hereinafter defined) to the assignment of the Station Licenses have become Final
Orders (as hereinafter defined) or (ii) at such later date that all other terms
and conditions as set forth in Articles 11 and 12 have been satisfied, or (iii)
such other date as may be mutually agreed to by the parties ("Closing Date").
For purposes of the Agreement, "Final
13
Order" means action by the FCC granting an application contemplated by this
Agreement which is not reversed, stayed, enjoined, set aside, annulled or
suspended, and with respect to which action no timely request for stay, petition
for rehearing, or reconsideration, application for review or appeal is pending,
and as to which the time for filing any such request, petition or appeal or
reconsideration by the FCC on its own motion has expired. The Closing shall be
held in the offices of Xxxxxxxxx & Associates, P.A., Xxx XX Xxxxx Xxxxxx, Xxxxx
0000, Xxxxx, Xxxxxxx, 00000, or at such place as the parties hereto may agree.
ARTICLE 5
GOVERNMENTAL CONSENTS
---------------------
5.1 FCC Consent. It is specifically understood and agreed by Buyer and
-----------
Seller that the Closing and the assignments of the Station Licenses and the
transfer of the Station Assets are expressly conditioned on and are subject to
the prior consent and approval of the FCC ("FCC Consents").
5.2 FCC Applications. Within ten (10) business days after the execution
----------------
of this Agreement, Buyer and Seller (and Xxxx X. Xxxxxx, if necessary) shall
file applications with the FCC for the FCC Consent ("FCC Applications"). Buyer
and Seller shall prosecute the FCC Applications with all reasonable diligence
and otherwise use their best efforts to obtain the FCC Consent as expeditiously
as practicable.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
14
6.1 Representations and Warranties of Seller. Seller, represents and
----------------------------------------
warrants to the Buyer the following:
6.1.1 Organization, Good Standing, Etc. (i) Seller is a limited
--------------------------------
liability partnership duly organized and validly existing under the laws of
Florida, has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted and is duly
qualified to do business in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes such qualification
necessary.
(ii) Seller has all requisite partnership power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Seller and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary partnership action on the part of Seller. This Agreement has
been duly executed and delivered by Seller and constitutes the legal, valid and
binding obligation of Seller, enforceable against it in accordance with its
terms.
6.1.2 Authority. Assuming the consents contemplated by Sections
---------
6.1.2 and 6.1.14 are obtained, neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby (i)
violate, conflict with or result in any breach of any provision of the Limited
Liability Partnership Agreement, or any other organizational document of Seller,
(ii) violate, conflict with or will result in a violation or breach of, or
constitute a default (with or without due notice or lapse of time or both)
under, or permit the termination of, or will result in the
15
acceleration of, or entitle any party to accelerate (whether as a result of the
sale of the Station Assets or otherwise) any material obligation, or result in
the loss of any material benefit, or give rise to the creation of any material
lien, charge, security interest or encumbrance upon any of the properties or
assets of any Seller or any of its subsidiaries under any of the terms,
conditions or provisions of any loan or credit agreement, note, bond, mortgage,
indenture or deed of trust, or any material license, lease, agreement or other
material instrument or obligation to which any of them is a party or by which
they or any of their properties or assets may be bound or affected; (iii)
violate any order, writ, judgment, injunction, decree, statute, rule or
regulation, of any court, administrative agency or commission or other
governmental authority or instrumentality (a "Governmental Entity") applicable
to Seller or any of its properties or assets. No consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Entity is required by or with respect to Seller in connection with the execution
and delivery of this Agreement by Seller or the consummation by Seller of the
transactions contemplated hereby, except for consents of the FCC to the
assignments of the Station Licenses (as defined in Section 1.1.1).
6.1.3 Financial Statements. Seller has provided Buyer with copies of
--------------------
the Stations' balance sheet as of December 31, 1998, and the related income
statements and pro forma broadcast cash flow analyses and the internally
prepared financial statements including income statements and pro forma
broadcast cash flow analyses (such financial statements collectively being
referred to as the "Seller's Financial Statements"). The Seller's Financial
Statements were prepared in accordance with principles applied on a consistent
basis throughout the periods covered thereby and present fairly, in all material
respects, the consolidated financial position, results of operations and changes
16
in cash flows of the Stations as of such dates and for the periods then ended
(subject, in the case of the unaudited Seller's Financial Statements, to the
absence of notes and to normal, recurring adjustments that would not be material
in the aggregate).
6.1.4 Absence of Undisclosed Liabilities. There are no material
----------------------------------
liabilities of any kind whatsoever with respect to the Stations (whether
absolute, accrued, contingent or otherwise, and whether due or to become due),
other than liabilities and obligations (i) provided for or reserved against in
the Seller's Financial Statements or (ii) arising after December 31, 1998, in
the ordinary course of business and consistent with past experience.
6.1.5 Compliance with Applicable Laws; FCC Matters. (i) Except as
--------------------------------------------
permitted or contemplated hereby, the operations of the Stations have been and
now are being conducted in substantial compliance with each law, ordinance,
regulation, judgment, decree, injunction, rule or order of the FCC or any other
Governmental Entity binding on Seller, the Stations or their respective
properties or assets. No investigation or review by any Governmental Entity with
respect to Seller or the Stations is pending or, to the Seller's knowledge, is
threatened. Without limiting the generality of the foregoing and with respect to
the Stations, the Stations comply in all material respects with the
Communications Act of 1934, as amended (the "Communications Act"), all rules,
regulations and written policies of the FCC thereunder, all obligations with
respect to equal opportunity under applicable law, and all rules and regulations
of the FCC and the Federal Aviation Administration applicable to the towers used
by the Stations (including all rules regulating hazards to air navigation,
registration of radio towers, and exposure of humans to non-ionizing radio
frequency radiation). In
17
addition, Seller has duly and timely filed, or caused to be filed, with the
appropriate Governmental Entities all applications, reports, statements, fees,
documents, registrations, filings or submissions with respect to the operations
of the Stations and the ownership thereof, including, without limitation,
applications for renewal of authority required by applicable law to be filed.
All such filings complied in all material respects with applicable laws when
made and no material deficiencies have been asserted with respect to any such
filings. All the material required by 47 C.F.R. (S) 73.3526 to be kept in the
public inspection files of the Stations is in such files. Except as disclosed on
Schedule 6.1.5, Seller has no knowledge of any fact or circumstance relating to
Seller or the Stations arising from noncompliance with the Communications Act,
or the rules, regulations or written policies of the FCC in effect on the date
of this Agreement that could reasonably be expected to (a) disqualify Seller
from assigning the Station Licenses to the Buyer or (b) prevent or delay the
consummation by them of the transactions contemplated by this Agreement.
(ii) Schedule 1.1.1 lists (a) all licenses, permits and other
authorizations (including all STL licenses and construction permits) issued by
the FCC relating to the Stations as of the date of this Agreement and (b) all
licenses, permits, or authorizations issued by any other Governmental Entities
which are material to the operations of the Stations as of the date of this
Agreement. Such licenses, permits and authorizations, and all applications for
modification, extension or renewal thereof or for new licenses, permits,
permissions or authorizations that would be material to the operations of the
Stations, are collectively referred to herein as the Station Licenses (as
further defined in Section 1.1.1), each of which is in full force and effect.
The Stations have been operated in all material respects in accordance with the
terms of the Station Licenses. Except for
18
proceedings affecting the radio broadcast industry generally, there are no
proceedings pending or, to the Seller's knowledge, threatened with respect to
ownership or operation of the Stations which reasonably may be expected to
result in the revocation, material adverse modification, non-renewal or
suspension of any of the Station Licenses, the denial of any pending
applications for Station Licenses, the issuance of any cease and desist order,
or the imposition of any administrative actions by the FCC or any other
Governmental Entity with respect to the Station Licenses, or which reasonably
may be expected to adversely affect the Stations' ability to operate as
currently operated or the Buyer's ability to obtain assignment of the Station
Licenses. With the exception of operations pursuant to any existing STAs set out
in Section 1.1.1 hereto, and with the further exception of such temporary
reduced power operations as are necessary for routine maintenance, the Stations
operate in conformity with the Station Licenses and within the operating power
tolerances specified in 47 C.F.R. (S) 73.1560(b). No other broadcast station or
radio communications facility is causing interference to the Stations'
transmissions beyond that which is allowed by FCC rules and regulations.
6.1.6 Litigation. Except as disclosed on Schedule 6.1.6, (i) there
----------
is no action, suit, inquiry, judicial or administrative proceeding, or
arbitration pending or, to the knowledge of Seller, threatened against Seller or
the Stations or any of their respective properties or assets by or before any
arbitrator or Governmental Entity nor are there any investigations relating to
Seller or the Stations or any of their respective properties or assets pending
or threatened by or before any arbitrator or Governmental Entity; (ii) there is
no judgment, decree, injunction, or order of any Governmental Entity or
arbitrator outstanding against Seller or the Stations or any of their respective
19
properties or assets and; (iii) there is no action, suit, inquiry, judicial or
administrative proceeding pending or threatened against Seller or the Stations
by a third party relating to the Seller or the Station Assets or any of the
transactions contemplated by this Agreement.
6.1.7 Insurance. Schedule 6.1.7 sets forth a list of all fire,
---------
liability and other forms of insurance and all fidelity bonds held by or
applicable to the Stations setting forth in respect of each such policy the
policy name, policy number, carrier, term, type of coverage and annual premium.
No event has occurred, including, without limitation, the failure to give any
notice or information, or the delivery of any inaccurate or erroneous notice or
information, which limits or impairs the rights of the insured parties under any
such insurance policies. Seller shall cause comparable policies of insurance to
remain in effect for acts, omissions and events occurring on or prior to the
Closing Date.
6.1.8. Real Estate. No person or entity other than Seller has any
-----------
interest in any of the real property used in the operation of the Stations,
except as set forth in one of the schedules to this Agreement. At closing,
Seller will have good and marketable title to the Owned Real Estate and valid
leaseholds in the Leased Real Estate, free and clear of any Liens except for
the Permitted Liens. The buildings (or portions thereof), improvements and
fixtures that are included in the Real Estate are suitable for their intended
use. Seller has a valid contractual right to use adequate routes of ingress and
egress to, from and over all of the Real Estate necessary to operate the
Stations. Other than Permitted Liens, no improvement on any of the Real Estate
encroaches upon any adjacent real property of any other person or entity.
Schedules 1.1.7 and 1.1.8 contain the street addresses and/or
20
legal descriptions of the Real Estate.
6.1.9 Personal Property. Schedule 1.1.2 hereto contains a list of
-----------------
all material tangible personal property and assets owned or held or to be
acquired by Seller, and used in the conduct of the business and operations of
the Stations (other than Real Estate, which is addressed in the foregoing
Section 6.1.8). Except as disclosed in Schedule 1.1.2, Seller own and have good
and marketable title to all property referred to in the immediately preceding
sentence and none of such property is, subject to any Liens, other than
Permitted Liens. The tangible personal property and fixtures owned or used or
to be acquired by Seller, and necessary for the operation of the Stations, are
in good operating condition (subject to normal wear and tear) and are sufficient
to permit the conduct of the business of the Stations in compliance with FCC
rules and regulations. At Closing, Seller shall own or hold under valid leases
all of the tangible personal property listed in Schedule 1.1.2 and this shall
include all of the tangible personal property and fixtures necessary to conduct
the business of the Stations as presently conducted. The Station Assets to be
transferred hereunder constitute all of the assets, rights and properties that
are required for the operation of the Stations in compliance with FCC rules and
regulations and as it is now conducted.
6.1.10 Liens and Encumbrances. All properties and assets relating
----------------------
to the Stations, including leases, owned or to be acquired by Seller, are free
and clear of all liens, pledges, claims, security interests, restrictions,
mortgages, tenancies and other possessory interests, conditional sale or other
title retention agreements, assessments, easements, rights of way, covenants,
restrictions, rights of first refusal, defects in title, encroachments and other
burdens, options or encumbrances of
21
any kind (collectively, "Liens") except (i) statutory Liens securing payments
not yet delinquent or the validity of which are being contested in good faith by
appropriate actions, (ii) Liens for taxes not yet delinquent, (iii) Liens
securing indebtedness, all of which Liens will be discharged by Seller at the
Closing upon repayment of all amounts due and owing, (iv) Liens incurred in the
usual and normal conduct of the business of the Station, which in the aggregate
do not materially detract from the value or materially impair the present and
continued use of the properties or assets subject thereto, (v) Liens on leases
arising from the provisions of such lease, (vi) interests owned or held by Xxxx
X. Xxxxxx which Seller shall acquire prior to Closing, and (vii) zoning
ordinances (the Liens referred to in clauses (i) through (vi) being "Permitted
Liens").
6.1.11 Environmental Matters
---------------------
On the date of this Agreement, except as disclosed on Schedule 6.1.11:
(i) To the best of Seller's knowledge, the Real Estate used
in connection with the Stations and the operations thereon is, and with respect
to Xxxx X. Xxxxxx and any predecessor or prior owner, operator or lessee (each a
"Predecessor") has been, in substantial compliance with all applicable federal,
state and local statutes, codes, rules or regulations as well as common law
decisions relating to the environment, natural resources and public or employee
health and safety ("Environmental Laws");
(ii) To the best of Seller's knowledge, no judicial or
administrative
22
proceedings are pending or threatened against a Seller or Xxxx X. Xxxxxx, or any
of the Real Estate used in connection with the Stations alleging the violation
of or seeking to impose liability pursuant to any Environmental Law. No notice
or claim from any Governmental Entity or other person has been given to Seller
or Xxxx X. Xxxxxx claiming violation of or alleging any liability under
remediation of any Environmental Laws in connection with any of the Real Estate
used in connection with the Station or operations thereon;
(iii) To the best of Seller's knowledge, there are no facts,
circumstances or conditions on the Real Estate or the operations thereon used in
connection with the Stations or the operations thereon that are reasonably
likely to give rise to an environmental claim or result in Environmental Costs
and Liabilities;
(iv) To the best of Seller's knowledge, all substances, materials or
waste that are regulated by federal, state or local government, as well as any
petroleum or petroleum derived product, used or generated by Seller or by any
Predecessor in connection with the Leased Real Estate used in connection with
the Station ("Hazardous Substances"), have been stored, used, treated, and
disposed of by such persons or on their behalf in such manner as not to result
in any material Environmental Costs or Liabilities. "Environmental Costs and
Liabilities" means any losses, including environmental remediation costs,
liabilities, obligations, damages, fines, penalties or judgments, arising from
or under any Environmental Law or order of or agreement with any Governmental
Entity or other person;
(v) To the best of Seller's knowledge, there are not now, nor have
there
23
been in the past, on, in or under any Real Estate used in connection with the
Stations when owned, leased or operated by Seller or, when owned, leased or
operated by any Predecessor, any of the following: any (a) underground storage
tanks, above-ground storage tanks, dikes or impoundments containing Hazardous
Substances, (b) asbestos containing materials, (c) polychlorinated biphenyls or
(d) radioactive substances; and
(vi) The Stations' operations do not have a significant
environmental impact, as defined by 47 C.F.R. (S) 1.1307.
6.1.12 Taxes. (i) All Tax Returns (as defined in sub-section (vii)
-----
below) that are required to be filed on or before the execution of this
Agreement by Seller, have been duly filed on a timely basis under the statutes,
rules and regulations of each applicable jurisdiction. All such Tax Returns are
complete and accurate. Except as set forth on Schedule 6.1.12, all Taxes,
whether or not reflected on the Tax Returns, which are due with respect to the
Seller and any Affiliates have been timely paid by the Seller and/or any such
Affiliates, whether or not such Taxes are disputed. For the purposes of this
Section, Affiliates shall mean any entity that files a consolidated tax return
with Seller.
(ii) No claim for assessment or collection of Taxes has been
asserted against Seller or any Affiliates. Neither Seller nor any of its
Affiliates is a party to any pending audit, action, proceeding or investigation
by any Governmental Entity for the assessment or collection of Taxes nor does
any Seller or any Affiliate have knowledge of any threatened audit,
24
action, proceeding or investigation.
(iii) Neither Seller nor any of its Affiliates has waived or extended
any statutes of limitation for the assessment or collection of Taxes. No claim
has ever been made by a Governmental Entity in a jurisdiction where Seller or
any Affiliate does not currently file Tax Returns that any of Seller or its
Affiliates is or may be subject to taxation by that jurisdiction. Nor is Seller
or any of its Affiliates aware that any such assertion of tax jurisdiction is
pending or threatened. No Liens, other than Permitted Liens (whether filed or
arising by operation of law) have been imposed upon or asserted against any of
the assets of the Stations as a result of or in connection with any failure, or
alleged failure to pay any Tax.
(iv) Seller has withheld and paid all Taxes required to be withheld
in connection with any amounts paid or owing to any employee, creditor,
independent contractor or other third party.
(v) Seller is not a foreign person within the meaning of Section
1445 of the Internal Revenue Code (the "Code").
(vi) No payment described in this Agreement is subject to Section
280G of the Code.
(vii) For purposes of this Agreement, the terms "Tax" and "Taxes"
shall
25
mean all federal, state, local, or foreign income, payroll, Medicare,
withholding, unemployment insurance, social security, sales, use, service,
service use, leasing, leasing use, excise, franchise, gross receipts, value
added, alternative or add-on minimum, estimated, occupation, real and personal
property, stamp, duty, transfer, workers' compensation, severance, windfall
profits, environmental (including taxes under Section 59A of the Code), other
tax, charge, fee, levy or assessment of the same or of a similar nature,
including any interest, penalty, or addition thereto, whether disputed or not.
The term "Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes or any amendment thereto,
and including any schedule or attachment thereto.
(viii) The Seller shall, at the Closing, deliver to Buyer a
certificate (or certificates) in a form reasonably acceptable to Buyer's counsel
stating that no tax subject to any applicable transferee or successor liability
tax provision pursuant to Florida Statutes is due from the Seller or Xxxx X.
Xxxxxx (the "No Tax Due Certificate") arising from the operations of the
Stations prior to TBA Commencement Date. As used herein "TBA Commencement Date"
means the date Buyer first presents programming on WILN under the WILN TBA
described in Section 10.9.
6.1.13 Personnel. Seller has provided Buyer a complete and correct
---------
list as of August 1, 1999 of the names, positions, and location of all employees
or other station and broadcast personnel (whether employees or independent
contractors or employees of a time broker) of the Stations, which sets forth the
current salaries of all such employees and the other compensation arrangements
with all General Managers, Station Managers, General Sales Managers, Local Sales
26
Managers, National Sales Managers, Program Directors, Business Managers and
Traffic Managers (collectively, "Station Management") and all on-the-air
broadcast personnel of the Stations and indicates which of those employees,
Station Management or on-the-air broadcast personnel is a party to an employment
or consulting or similar contract with that is not terminable upon not more than
60 days notice without additional cost to the employer.
6.1.14 Contracts The Contracts are the only contractual agreements
---------
necessary to carry out the business and operations of the Stations as currently
conducted. Each Contract with respect to the Stations is a valid and binding
obligation of Seller, and is in full force and effect. Seller and each other
party to such Contract with respect to the Station, have performed in all
material respects the obligations required to be performed by them and are not
(with or without lapse of time or the giving of notice, or both) in material
breach or default thereunder. Schedule 1.1.3 identifies, as to each Contract
with respect to the Stations listed thereon, whether the consent of the other
party thereto is required in order for such Contract to continue in full force
and effect upon the consummation of the transactions contemplated hereby.
6.1.15 ERISA Compliance. Neither Seller nor Xxxx X. Xxxxxx nor any
----------------
other trades or businesses under Seller's or Xx. Xxxxxx'x common control within
the meaning of Section 4001(b)(1) of ERISA (collectively, the "ERISA Group") has
contributed or been obligated to contribute to any "multi employer plan" as such
term is defined in Section 3(37) or Section 4001 (a)(3) of ERISA except as
disclosed on Schedule 6.1.15. Schedule 6.1.15 lists all "employee benefit plans"
within the meaning of Section 3(3) of ERISA and bonus, pension, profit sharing,
deferred
27
compensation, incentive compensation, stock ownership, stock purchase, stock
option, phantom stock, retirement, vacation, severance, disability, death
benefit, hospitalization, insurance or other plan or arrangement or
understanding providing benefits to any present or former employee or contractor
of the Stations maintained by Seller or Xxxx X. Xxxxxx, or as to which Seller or
Xxxx X. Xxxxxx, (with respect to such individuals) has any liability or
obligation (collectively, "Employee Benefit Plans").
6.1.16 Labor Seller has not agreed to recognize any union or other
-----
collective bargaining unit, nor has any union or other collective bargaining
unit been certified as representing any of Seller's employees. Except as
disclosed on Schedule 6.1.16, Seller and Xxxx X. Xxxxxx, with respect to the
Stations, (i) are and have been in substantial compliance with all applicable
laws regarding employment and employment practices, terms and conditions of
employment, wages and hours, and plant closing, occupational safety and health
and workers' compensation and are not engaged, nor have they engaged, in any
unfair labor practices; (ii) have no, and have not had any unfair labor practice
charges or complaints pending or threatened against any of them before the
National Labor Relations Board; (iii) have no and have not had any grievances
pending or threatened against any of them; and (iv) have no, and have not had
any charges pending or threatened against any of them before the Equal
Employment Opportunity Commission or any state or local agency responsible for
the prevention of unlawful employment practices. There is no labor strike,
slowdown, work stoppage or lockout actually pending or threatened against or
affecting the Stations. No union organizational campaign or representation
petition is currently pending with respect to the employees working for the
Stations.
28
6.1.17 Patents, Trademarks, Etc. Schedule 1.1.4 sets forth all call
-------------------------
letters, patents, patent applications, trademarks, trade names, Internet domain
names, service marks, trade secrets, applied for, issued, owned or used
copyrights and other proprietary Intellectual Property used in the operation of
the Stations (whether owned, leased or licensed). Except as disclosed to Buyer,
Seller has not received any notice of any claimed conflict, violation or
infringement of such Intellectual Property rights. None of such material
Intellectual Property rights are being infringed by any third party.
6.1.18 Absence of Certain Changes or Events. Except as contemplated
------------------------------------
or expressly permitted by this Agreement, since December 31, 1998 there has not
been (i) any material damage, destruction or loss of any kind with respect to
the Stations not covered by valid and collectible insurance; (ii) with respect
to the Stations the execution of any agreement with any Station management or
broadcast personnel (whether an employee or independent contractor) providing
for his/her employment, or any increase in compensation or severance or
termination of benefits payable or to become payable by Seller, to any officer,
Station management, or broadcast personnel (whether an employee or independent
contractor), or any increase in benefits under any collective bargaining
agreement, except in any case in the ordinary course of business consistent with
prior practice and except as permitted by Section 8.1.1 (x); or (iii) any change
by Seller, in its financial or tax accounting principles or methods.
6.1.19 Commission or Finder's Fees. Neither Seller nor any entity
---------------------------
acting on behalf of Seller has agreed to pay a commission, finder's fee or
similar payment in connection with this Agreement
29
or any matter related hereto to any person or entity other than to Media Service
Group whose fees shall be Seller's sole responsibility.
6.1.20 Full Disclosure. No representation or warranty by Seller
---------------
contained in this Agreement (including the Disclosure Schedules hereto) or in
any certificate furnished pursuant to this Agreement contains or will contain
any untrue statement of a material fact, or omits or will omit to state any
material fact necessary, in light of the circumstances under which it was or
will be made, in order to make the statements herein or therein not misleading.
6.1.21 Seller's Financial Condition. Except as indicated in Schedule
----------------------------
6.1.21, no insolvency proceedings of any character, including, without
limitation, bankruptcy, receivership, reorganization, composition or arrangement
with creditors, voluntary or involuntary, affecting Seller or any of its
respective assets or properties are pending, or threatened, and Seller has not
made any assignment for the benefit of creditors, nor has Seller taken any
action with a view to, or which would constitute a basis for, the institution of
any such insolvency proceedings. Seller shall use the proceeds received under
this agreement to pay or to make appropriate provision for the payment of any
and all creditors of Seller prior to making any distribution to its partners.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
7.1 Organization and Standing. Buyer is a limited liability company duly
-------------------------
organized,
30
validly existing and in good standing under the laws of the State of Delaware.
7.2 Authorization and Binding Obligation. Buyer has all necessary power
------------------------------------
and authority to enter into and perform this Agreement and the transactions
contemplated hereby, and to own or lease the Station Assets and to carry on the
business of the Stations upon the consummation of the transactions contemplated
by this Agreement. Buyer's execution, delivery and performance of this Agreement
and the transactions contemplated hereby have been duly and validly authorized
by all necessary action on behalf of Buyer and constitute the valid and binding
obligation of Buyer, enforceable in accordance with its terms.
7.3 Qualification. To Buyer's knowledge, there is no fact, allegation,
-------------
condition, or circumstance relating to Buyer that could reasonably be expected
to prevent the prompt grant of the FCC Order. Buyer knows of no fact that
would, under the Communications Act of 1934, as amended, or the rules,
regulations and policies of the FCC, disqualify Buyer from becoming the licensee
of the Stations.
7.4 Absence of Conflicting Agreements or Required Consents. Except as set
------------------------------------------------------
forth in Schedule 7.4 hereof, the execution, delivery and performance of this
Agreement by Buyer: (i) do not violate or conflict with any of the terms,
conditions or provisions of the Certificate of Formation or Regulations of
Buyer; (ii) do not require the consent of any third party not affiliated with
Buyer; (iii) will not violate any applicable law, judgment, order, injunction,
decree, rule, regulation or ruling of any governmental authority to which Buyer
is a party; and (iv) will not, either alone or with the
31
giving of notice or the passage of time, violate the terms, conditions or
provisions of, or constitute a default under, any agreement, instrument, license
or permit to which Buyer is now subject.
7.5 Litigation: Compliance with Law. There is no litigation,
-------------------------------
administrative action, arbitration or other proceeding, or petition, complaint
or investigation before any court or governmental body, pending against Buyer
that would adversely affect Buyer's ability to perform its obligations pursuant
to this Agreement or the agreements to be executed by Buyer in connection
herewith. Buyer has committed no violation of any applicable law, regulation or
ordinance or any other requirement of any governmental body or court which would
have an adverse effect on Buyer or its ability to perform its obligations
pursuant to this Agreement or the agreements to be executed in connection
herewith.
7.6 Commission or Finder's Fees. Neither Buyer nor any entity acting on
---------------------------
behalf of Buyer has agree to pay a commission, finder's fee or similar payment
in connection with this Agreement or any matter related hereto.
7.7 Full Disclosure. No representation or warranty by Buyer contained in
---------------
this Agreement (including the Disclosure Schedules hereto) or in any certificate
furnished pursuant to this Agreement contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
necessary, in light of the circumstances under which it was or will be made, in
order to make the statements herein or therein not misleading.
32
ARTICLE 8
COVENANTS OF SELLER
-------------------
8.1 Conduct of Station Prior to the Closing Date:
--------------------------------------------
8.1.1 Seller covenants and agrees with Buyer that between the date
of this Agreement and (except as otherwise noted below) the Closing Date, the
Seller, with respect to the Stations shall:
(i) through the TBA Commencement Date, use commercially
reasonable efforts to maintain their present business organization, keep
available the services of their present employees and independent contractors,
preserve their relationships with its customers and others having business
relationships with them, and refrain from materially and adversely changing any
of their business practices and policies (including but not limited to
advertising (including substantially the same amount of cash expenditure),
marketing, pricing, purchasing, personnel, sales, and budget practices and
policies);
(ii) maintain their books of account and records in the usual
and ordinary manner and in accordance with consistently applied principles.
(iii) notify Buyer if the regular broadcast transmission of
any of the Stations from its main transmitting facilities at full authorized
effective radiated power is interrupted
33
for a period of more than five consecutive hours or for an aggregate of 10 or
more hours in any continuous three-day period;
(iv) operate in the usual and ordinary course of business in
accordance with past practice and conduct their business in all material
respects in compliance with the terms of the Station Licenses and all applicable
laws, rules, and regulations, including, without limitation, the applicable
rules and regulations of the FCC;
(v) use, repair, and, if necessary, replace any of the
Stations' studio and transmission assets in a reasonable manner consistent with
historical practice and maintain their assets in substantially their current
condition, ordinary wear and tear excepted;
(vi) maintain insurance in accordance with Section 6.1.7;
(vii) not incur any debts, obligations, or liabilities
(absolute, accrued, contingent, or otherwise) that include obligations (monetary
or otherwise) to be performed by Buyer that exceeds Ten-thousand Dollars
($10,000) individually or Twenty-five Thousand Dollars ($25,000) in the
aggregate;
(viii) not lease, mortgage, pledge, or subject to a lien,
claim, or encumbrance (other than Permitted Liens ) any of the Station Assets or
sell or transfer any of the Station Assets without replacing such Station Assets
with an asset of substantially the same value
34
and utility;
(ix) without the prior consent of Buyer, (a) not modify or
extend any Contracts or (b) enter into any new Contract the payments under which
exceed Ten-thousand Dollars ($10,000) individually or Twenty-five Thousand
Dollars ($25,000) in the aggregate;
(x) not make or grant any general wage or salary increase or
generally materially modify the employees' terms and conditions of employment,
and with respect to any Station Management and on-air personnel, Seller shall
not make or grant any wage or salary increase or modify any terms and conditions
of employment without the prior consent of Buyer; provided, however, that Seller
shall be permitted to make bonus payments to any employees including Station
Management and on-air personnel;
(xi) not make any change in the accounting principles,
methods, or practices followed by them or depreciation or amortization policies
or rates;
(xii) not make any loans or make any dividends or
distributions other than of Excluded Assets;
(xiii) other than in the ordinary course of business, not
cancel or compromise any debt or claim, or waive or release any right, of
material value;
35
(xiv) not disclose to any person (other than Buyer and their
representatives) any confidential or proprietary information;
(xv) through the TBA Commencement Date, use commercially
reasonable efforts to maintain the present format of the Stations and with
programming consistent with past practices;
(xvi) through the TBA Commencement Date, other than in the
ordinary course of business, not increase the number of regularly scheduled
commercial units run during the day-parts on the Stations (other than changes
in the number of commercial units run during any day-part as a result of
operating difficulties that require commercial units to be broadcast at times
other than as scheduled); or
(xvii) agree to do any of the foregoing.
8.2 Seller shall, in cooperation with Xxxx X. Xxxxxx (i) give or cause the
Stations to give Buyer and Buyer's counsel, accountants, engineers and other
representatives, including environmental consultants, reasonable access during
normal business hours to all of Seller's and Xxxx X. Xxxxxx'x properties, books,
Contracts, Trade Agreements, reports and records including financial information
and tax returns relating to the Stations, and to all real estate, buildings and
equipment relating to the Stations, in order that Buyer may have full
opportunity to make such investigation, including but not limited to,
environmental assessments, as it desires of the affairs of
36
the Stations and (ii) furnish Buyer with information, and copies of all
documents and agreements including but not limited to financial and operating
data and other information concerning the financial condition, results of
operations and business of the Stations, that Buyer may reasonably request. The
rights of Buyer under this Section shall not be exercised in such a manner as to
interfere unreasonably with the business of the Stations.
8.2.1 Interim Financial Statements. Seller shall promptly deliver to
----------------------------
Buyer copies of any monthly, quarterly or annual financial statements relating
to the Stations' operations that may be prepared or received by Seller during
the period from the date hereof through the Closing Date. Such financial
statements shall fairly present the financial position and results of operations
of the Stations as at the dates and for the periods indicated, and if prepared
by or on behalf of Seller, shall be prepared on a basis consistent and in
accordance with the basis upon which the financial statements in Section 6.1.3
were prepared.
8.3 Other Consents. Seller will use its best efforts to obtain all
--------------
consents, authorizations, or approvals required for the consummation of the
transactions contemplated by this Agreement.
8.4 No Inconsistent Action. Seller shall not take any action which is
----------------------
inconsistent with its obligations under this Agreement.
8.5 Notification. Seller shall promptly notify Buyer in writing of (i)
------------
the failure of Seller or Xxxx X. Xxxxxx or any employee or agent of Seller or
Xxxx X. Xxxxxx to comply with or satisfy in
37
any material respect any covenant, condition or agreement to be complied with
hereunder; (ii) the occurrence of any event that would entitle Buyer to
terminate this Agreement pursuant to Section 15.1; or (iii) any overt threat or
actual resignation or termination of any Station Management or over-the-air
personnel at the Stations prior to the TBA Commencement Date.
8.6 Updating of Schedules. From time to time prior to the Closing, Seller
---------------------
will supplement or amend the Schedules delivered in connection herewith with
respect to any matter which exists or occurs after the date of this Agreement
and which, if existing or occurring at or prior to the date of this Agreement,
would have been required to be set forth or described in such Schedules or which
is necessary to correct any information in such Schedules which has been
rendered inaccurate thereby. The provisions of this Section are informational
only and Buyer shall not be bound to the terms of any changed Schedules unless
they are incorporated into this Agreement by a written amendment signed by
Buyer.
8.7 Enforcement of Agreements. Seller shall perform, carry out all of its
--------------------------
respective obligations under, and, if necessary, Seller shall seek specific
performance of the transactions contemplated by the WYYX Purchase Agreement and
that certain Time Brokerage Agreement effective April 1, 1996 among Xxx
Xxxxxxxx, Xxxxx Xxxxxxx and Empire Broadcast System LLP as Broker and Xxxx X.
Xxxxxx and Group M. Communications Inc. as Licensee (the "WYYX TBA"). If
necessary to effectuate the transactions contemplated in this Agreement, Seller
shall (i) obtain an extension of the FCC consent to the WYYX Purchase Agreement
to enable Seller to close on the WYYX Purchase Agreement on the Closing Date;
(ii) obtain the cooperation of Xxxx X. Xxxxxx in
38
executing any FCC applications with respect to WYYX; and (iii) obtain the
consent of Xxxx X. Xxxxxx to an extension of the WYYX TBA and the assignment of
the WYYX TBA to Buyer that will enable Buyer to acquire the WYYX TBA on or
before the TBA Commencement Date and to present programs on WYYX until the
Closing Date.
8.8 FCC Filings. Seller and Xxxx X. Xxxxxx shall file or cause to be
-----------
filed on a current basis until the Closing Date all applications, fees, reports
and documents required to be filed with the FCC with respect to the Stations.
Copies of each such application, fee filing, report and document filed between
the date hereof and the Closing Date shall be furnished to Buyer promptly after
its filing.
8.9 Updating of Information. Between the date of this Agreement and the
-----------------------
TBA Commencement Date, Seller will deliver to Buyer, on a monthly basis within
30 days of the end of each month, information relating to the operation of the
Stations, including weekly sales reports and such other financial information
that may be reasonably requested.
8.10 Indemnification. Subject to the WILN TBA and Buyer's assumption of
---------------
certain obligations under the WYYX TBA:
(i) from and after the Closing Date, Seller shall indemnify and hold Buyer, its
affiliates, and its assigns harmless from and against all costs, losses and
damages (including reasonable attorney fees) incurred by Buyer or such
affiliates or assigns as a result of or arising out of (a) the breach by Seller
of any of its representations and warranties contained in this Agreement, (b)
the failure by Seller to
39
perform its covenants set forth in this Agreement, (c) the conduct of the
operations of the Stations or the use or ownership of the Station Assets on or
before the Closing Date, including any and all liabilities arising under any of
the Station Licenses or Contracts which relate to events occurring prior to the
Closing Date, and (d) any and all obligations or liabilities of Seller under any
contract or agreement not expressly assumed by Buyer pursuant to the terms
hereof. Buyer shall make no settlement, compromise, admission or acknowledgment
that would give rise to liability on the part of Seller without the prior
written consent of Seller.
(ii) On the Closing Date, Buyer and Seller will enter into the Indemnification
Escrow Agreement in the form of Exhibit 8.10 hereto in accordance with which
Buyer shall at Closing deposit an amount of the Purchase Price equal to $100,000
(the "Holdback Amount") with the escrow agent identified in the Indemnification
Escrow Agreement (the "Indemnification Escrow Agent").
(iii) Buyer shall be entitled to payment out of the Holdback Amount pursuant to
the terms of this Section 8.10 and the Indemnification Escrow Agreement for all
amounts due to Buyer with respect to any claim by Buyer against Seller for
liabilities of Seller payable under this Section with respect to breaches of
representations and warranties of Seller.
(iv) Seller hereby covenants and agrees that at any xxxx Xxxxxx is or becomes
obligated to indemnify Buyer under this Section 8.10, Seller will execute and
deliver to the Indemnification Escrow Agent written instructions to release to
Buyer such portion of the Holdback Amount as is necessary to indemnify Buyer for
amounts due under this Section.
40
(v) Any claim for indemnification under Section 8.10(i) must be made within
one (1) year after the Closing.
ARTICLE 9
COVENANTS OF BUYER
------------------
9.1 Notification. Buyer shall promptly notify Seller in writing of (i)
------------
any litigation, arbitration or administrative proceeding pending or, to its
knowledge, threatened against Buyer which challenges the transactions
contemplated hereby or (ii) the failure of Buyer, or any employee or agent of
Buyer to comply with or satisfy in any material respect any covenant, condition
or agreement to be complied with or satisfy in any material respect any
covenant, condition or agreement to be complied with or satisfied by it
hereunder and (iii) the occurrence of any event that would entitle Seller to
terminate this Agreement pursuant to Section 15.1.
9.2 No Inconsistent Action. Buyer shall not take any action which is
----------------------
inconsistent with its obligations under this Agreement.
9.3 Post-Closing Access. Buyer, for a period of one (1) year following
-------------------
the Closing Date, shall make available during normal business hours for audit
and inspection by Seller and its representatives, for any reasonable purpose and
upon reasonable notice, all records, files, documents and correspondence
transferred to it hereunder relating to the pre-closing period. All information,
records, files, documents and correspondence made available or disclosed under
this Section 9.3
41
shall be kept confidential.
9.4 Other Consents. Buyer will use its best efforts to obtain all
--------------
necessary consents, authorizations, or approvals, in each case, required for
Buyer's consummation of the transactions contemplated by this Agreement.
ARTICLE 10
JOINT COVENANTS
---------------
Buyer and Seller covenant and agree that they shall act in accordance with
the following:
10.1 Confidentiality. Buyer and Seller shall each keep confidential all
---------------
information obtained by them with respect to the other party hereto in
connection with this Agreement and the negotiations preceding this Agreement,
and will use such information solely in connection with the transactions
contemplated by this Agreement, and if the transactions contemplated hereby are
not consummated for any reason, each shall return to each other party hereto,
without retaining a copy thereof, any schedules, documents or other written
information obtained from such other party in connection with this Agreement and
the transactions contemplated hereby except to the extent required or useful in
connection with any claim made with respect to the transactions contemplated by
this Agreement or the negotiation thereof. Notwithstanding the foregoing, no
party shall be required to keep confidential or return any information which (i)
is known or available through other lawful sources, not bound by a
confidentiality agreement with the disclosing party, or (ii) is or
42
becomes publicly known through no fault of the receiving party or its agents, or
(iii) is required to be disclosed pursuant to an order or request of a judicial
or government authority (provided the non-disclosing party is given reasonable
prior notice such that it may seek, at its expense, confidential treatment of
the information to be disclosed), (iv) is developed by the receiving party
independently of the disclosure by the disclosing party or (v) is required to be
disclosed under applicable law or rule, as determined by counsel for the
receiving party.
10.2 Cooperation. Buyer and Seller shall cooperate fully with one another
-----------
in taking any actions, including actions to obtain the required consent of any
governmental instrumentality or any third party necessary or helpful to
accomplish the transactions contemplated by this Agreement.
10.3 Control of Station. Prior to Closing, Buyer shall not, directly or
------------------
indirectly, control or direct the operations of the Stations. Nothing in this
Section shall alter any rights Buyer may acquire under the WYYX TBA or the WILN
TBA.
10.4 Bulk Sales Laws. Buyer hereby waives compliance by Seller with the
---------------
provisions of the "bulk sales" or similar laws of any state. Seller shall
indemnify Buyer and hold it harmless from any and all loss, cost, damage and
expense (including but not limited to, reasonable attorney's fees) sustained by
Buyer as a result of any failure of Seller to comply with any "bulk sales" or
similar laws.
10.5 Public Announcements. Neither Buyer nor Seller shall issue any press
--------------------
release
43
or make any disclosure with respect to the transaction contemplated by this
Agreement without the prior written approval of the other party, except as may
be required by applicable law or by obligations pursuant to any listing
agreement with any securities exchange or any stock exchange regulations.
10.6 Xxxx-Xxxxx-Xxxxxx [Intentionally Omitted]
-----------------
10.7 Employee Matters. Commencing with the execution of this Agreement,
----------------
Seller shall make available the Stations' personnel during normal business hours
for Buyer to interview prior to the TBA Commencement Date. Buyer shall offer
the Stations' personnel employment effective upon the TBA Commencement Date, and
subject to the effectiveness of the WILN TBA and Buyer's acquisition of the WYYX
TBA. Seller shall be responsible for all obligations or liabilities to employees
prior to the TBA Commencement Date.
10.8 Condition of Real Estate. Buyer may, at its sole expense, conduct
------------------------
environmental studies, title examinations, and land surveys (the "Studies") of
the Real Estate.
10.9 Compliance with TBAs. Concurrently the execution of this Agreement,
---------------------
Buyer, Seller and/or Xxxx X. Xxxxxx have executed a WILN Time Brokerage
Agreement ("WILN TBA") and an Assignment and Assumption Agreement (with respect
to the WYYX TBA). Buyer, Seller and Xxxx X. Xxxxxx shall perform their
respective obligations under the WILN TBA and under the Assignment and
Assumption Agreement (with respect to the WYYX TBA).
44
ARTICLE 11
CONDITIONS OF CLOSING BY BUYER
------------------------------
The obligations of Buyer hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of all of the following
conditions:
11.1 Representations and Warranties. All representations and warranties of
------------------------------
Seller made in this Agreement or in any Exhibit, Schedule or document delivered
pursuant hereto, shall be true and complete in all material respects as of the
date hereof and on and as of the Closing Date as if made on and as of that date,
except for changes expressly permitted or contemplated by the terms of this
Agreement.
11.2 Compliance with Agreement. All of the terms, covenants and conditions
-------------------------
to be complied with and performed by Seller on or prior to the Closing Date
shall have been complied with or performed in all material respects.
11.3 Third Party Consents and Approvals; Estoppel Certificates. Seller have
---------------------------------------------------------
obtained all third-party consents and approvals, if any, required for the
transfer or continuance, as the case may be, of the Contracts on Schedule 1.1.3
(and contracts that would have been on Schedule 1.1.3 had they been in existence
on the date of this Agreement) and, if requested by Buyer within 30 days of the
date of this Agreement, such third parties have provided estoppel certificates,
non-disturbance agreements, and/or written clarifications of the rights of Buyer
thereunder, all in form and substance
45
reasonably satisfactory to Buyer.
11.4 Closing Certificates. Buyer shall have received a certificate, dated
--------------------
as of the Closing Date, from Seller, executed by the general partner of Seller
to the effect of Sections 11.1 and 11.2.
11.5 Governmental Consents.
---------------------
11.5.1 FCC. The FCC Consents shall have been issued by the FCC
---
without any conditions that would otherwise permit Buyer to terminate this
Agreement pursuant to Section 15.1(v), below, and each such FCC consent shall
have become a Final Order (as defined in Section 4.1).
11.5.2 HSR Act. [Intentionally Omitted]
-------
11.5.3 Other Consents. All other material authorizations, consents,
--------------
approvals, and clearances of federal, state, or local Governmental Entities
required to permit the consummation of the transactions contemplated by this
Agreement shall have been obtained.
11.6 Adverse Proceedings. No injunction, order, decree or judgment of any
-------------------
court, agency or other Governmental Entities shall have been rendered against
Seller or Buyer which would render it unlawful, as of the Closing Date, to
effect the transactions contemplated by this Agreement in accordance with its
terms.
46
11.7 Closing Documents. Seller shall have executed and delivered or
-----------------
caused to be delivered to Buyer, on the Closing Date (i), all special warranty
deeds, bills of sale, endorsements, assignments and other instruments of
conveyance and transfer consistent with the terms hereof and otherwise
reasonably satisfactory in form and substance to Buyer, effecting the sale,
transfer, assignment and conveyance of the Station Assets to Buyer and (ii) all
other documents, instruments, certificates and agreements required of Seller
under the terms of this Agreement.
11.8 Material Adverse Change. No material adverse change in the
-----------------------
business, assets, prospects or condition of the Stations (financial or
otherwise) shall have occurred prior to the TBA Commencement Date.
11.9 Opinion of Counsel. Buyer shall have received a written opinion
------------------
of Seller's counsel dated as of the Closing Date as to the matters set forth in
Exhibit 11.9 hereto in form and substance reasonably satisfactory to Buyer.
11.10 WYYX Acquisition. Seller shall have closed on its acquisition of
-----------------
WYYX under the terms and conditions of the WYYX Purchase Agreement.
ARTICLE 12
CONDITIONS OF CLOSING BY SELLER
-------------------------------
The obligations of Seller hereunder are, at its option, subject to
satisfaction, at or prior to the
47
Closing Date, of all of the following conditions:
12.1 Representations, Warranties and Covenants. All representations and
-----------------------------------------
warranties of Buyer made in this Agreement or in any Exhibit, Schedule or
document delivered pursuant hereto, shall be true and complete in all material
respects as of the date hereof and on and as of the Closing Date as if made on
and as of that date, except for changes expressly permitted or contemplated by
the terms of this Agreement and except those given as of a specified date.
12.2 Compliance with Agreement. All the terms, covenants, and conditions
-------------------------
to be complied with and performed by Buyer on or prior to the Closing Date shall
have been complied with or performed in all material respects.
12.2.1 Certifications, etc. Seller shall have received a
-------------------
certificate, dated as of the Closing Date, from the Buyer, executed by the
President of Buyer to the effect of Sections 12.1 and 12.2.
12.3 Governmental Approval.
---------------------
12.3.1 FCC. The FCC Consents shall have been issued by the FCC and
---
each shall have become a Final Order (as defined in Section 4.1).
12.3.2 HSR Act. [Intentionally Omitted]
--------
48
12.3.3 Other Consents. All other material authorizations, consents,
--------------
approvals, and clearances of federal, state or local Governmental Entities
required to permit the consummation of the transactions contemplated by this
Agreement shall have been obtained.
12.4 Adverse Proceedings. No injunction, decree or judgment of any court,
-------------------
agency or other governmental entities shall have been rendered against Buyer or
Seller which would render it unlawful, as of the Closing date, to effect the
transactions contemplated by this Agreement in accordance with its terms.
12.5 Closing Documents. Buyer shall have delivered or caused to be
-----------------
delivered to Seller, on the Closing Date, an assumption agreement with respect
to Assumed Liabilities reasonably satisfactory in form and substance to Seller.
12.6 Seller shall have received a written opinion of Buyer's counsel
dated as of the Closing Date as to the matters set forth in Exhibit 12.6 hereto
in form and substance reasonably satisfactory to Seller.
ARTICLE 13
TRANSFER TAXES: FEES AND EXPENSES
---------------------------------
13.1 Expenses. Except as set forth in Sections 13.2 and, 13.3 below, each
--------
party hereto shall be solely responsible for all costs and expense incurred by
it in connection with the negotiation,
49
preparation and performance of and compliance with the terms of this Agreement.
13.2 Transfer Taxes and Similar Charges. All costs of transferring the
----------------------------------
Station Assets in accordance with this Agreement, including recordation,
transfer and documentary taxes and fees, and any excise, sales or use taxes,
shall be borne equally by Buyer and Seller. Buyer and Seller shall, in good
faith, attempt to calculate all such taxes and fees prior to Closing and to
settle their respective obligations therefore on or before the Closing Date.
13.3 Governmental Filing Fees. Any filing or grant fees imposed by the FCC
------------------------
for the consummation of the transactions contemplated hereby shall be borne
equally by Buyer and Seller.
ARTICLE 14
ESCROW DEPOSIT, LIQUIDATED DAMAGES, SPECIFIC PERFORMANCE
--------------------------------------------------------
14.1 Escrow Deposit. Within ten (10) days after the execution and delivery
--------------
of this Agreement by all Parties, Buyer will deposit with Media Services Group,
Inc. ("Xxxxxxx Money Escrow Agent"), an irrevocable letter of credit in the
amount of Two Hundred Thirty Five Thousand Dollars ($235,000.00) (the "Xxxxxxx
Money Escrow Deposit"). The Xxxxxxx Money Escrow Deposit shall be held and
disbursed by Xxxxxxx Money Escrow Agent pursuant to the terms of the Xxxxxxx
Money Escrow Agreement, appended hereto as Exhibit 14.1 (the "Xxxxxxx Money
Escrow Agreement"), which Xxxxxxx Money Escrow Agreement has been entered into
by the Seller, Buyer and Xxxxxxx Money Escrow Agent. At closing, the Xxxxxxx
Money Escrow Deposit, shall be
50
returned to Buyer. If the Closing does not occur because Buyer materially
breached this Agreement or defaulted in the performance of any of its material
obligations hereunder and Seller has not breached this Agreement or defaulted in
the performance of any of its material obligations hereunder, Buyer and Seller
shall execute written instructions to the Xxxxxxx Money Escrow Agent directing
it to deliver the Xxxxxxx Money Escrow Deposit to Seller as liquidated damages,
as provided in Section 14.2. If the Closing does not occur because Seller
materially breached this Agreement or defaulted in the performance of any of its
material obligations hereunder and Buyer has not breached this Agreement or
defaulted in the performance of any of its material obligations hereunder, Buyer
and Seller shall execute written instructions to the Xxxxxxx Money Escrow Agent
directing it to deliver the Xxxxxxx Money Escrow Deposit to Buyer and Buyer may
seek specific performance of this Agreement, as provided in Section 14.3
14.2 Liquidated Damages. If this Agreement is terminated by Seller
------------------
pursuant to Section 15.1 (ii)(b) the Parties agree and acknowledge that Seller
will suffer damages that are not practicable to ascertain. Accordingly, in such
event, Seller shall be entitled to the sum of $235,000 as liquidated damages,
payable solely and exclusively through the Xxxxxxx Money Escrow Agreement. The
Parties agree that the foregoing liquidated damages are reasonable considering
all the circumstances existing as of the date hereof and constitute the Parties'
good faith estimate of the actual damages reasonably expected to result from the
termination of this Agreement pursuant to Section 15.1 (ii)(b). Seller agrees
that, to the fullest extent permitted by law, the right to receive the Xxxxxxx
Money Escrow Deposit shall be its sole and exclusive remedy if the Closing does
not occur with respect to any damages whatsoever that Seller may suffer or
allege to suffer as a result of any claim or cause of
51
action asserted by Seller relating to or arising from breaches of the
representations, warranties or covenants of Buyer contained in this Agreement
and to be made or performed at or prior to the Closing. Except for a termination
pursuant to Section 15.1 (ii)(b) (for which the sole recourse of Seller shall be
as provided in this Section 14.2) or pursuant to Section 15.1(i) (for which no
party shall have any liability to the other), the termination of this Agreement
shall not relieve the Parties for any liability or obligation relating to their
breaches of this Agreement occurring prior to such termination.
14.3 Specific Performance. Seller hereby acknowledges that the Station
--------------------
Assets are unique, and that the harm to Buyer resulting from a breach by Seller
of its obligations to sell the Station Assets to Buyer cannot be adequately
compensated by damages. Accordingly, Seller agrees that Buyer shall have the
right to have this Agreement specifically performed by Seller and hereby agrees
not to assert any objections to the imposition of remedy of specific damages by
any court of competent jurisdiction.
ARTICLE 15
TERMINATION RIGHTS
------------------
15.1 Termination. This Agreement may be terminated at any time prior to
-----------
Closing as follows:
(i) by the mutual consent of Buyer and Seller;
52
(ii) by written notice of (a) Buyer to Seller if Seller breaches in
any material respect any of its representations or warranties or defaults in any
material respect in the observance or in the due and timely performance of any
of its covenants or agreements herein contained and such breach or default shall
not be cured within thirty (30) days of the date of notice of breach or default
served by Buyer or (b) Seller to the Buyer if Buyer breaches in any material
respect any of its representations or warranties or defaults in any material
respect in the observance or in the due and timely performance of any of its
covenants or agreements herein contained and such breach or default shall not be
cured within thirty (30) days of the notice of breach or default served by
Seller; but such notice and cure period shall not apply in the case of Buyer's
or Seller's failure to consummate the transactions in accordance with the terms
and times specified in Section 4.1 of this Agreement.
(iii) by Buyer or Seller by written notice to the other, if a court of
competent jurisdiction or other Governmental Entity shall have issued an order,
decree or ruling or taken any other action (which order, decree or ruling the
parties hereto shall use their best efforts to lift), in each case permanently
restraining, permanently enjoining or otherwise prohibiting the transactions
contemplated by this Agreement, and such order, decree, ruling or other action
shall have become final and nonappealable;
(iv) by the party whose qualifications are not at issue, if, for any
reason, the FCC denies or dismisses any of the FCC Applications and the time for
reconsideration or court review under the Communications Act with respect to
such denial or dismissal has expired and there is not
53
pending with respect thereto a timely filed petition for reconsideration or
request for review;
(v) by written notice of Buyer to Seller if the FCC Consents contain
a condition that reduces the value of this transaction to Buyer and the time for
reconsideration or court review under the Communications Act with respect to
such condition(s) has expired without the filing with respect thereto of a
timely petition for reconsideration or request for review;
(vi) by written notice of Buyer to Seller, or by Seller to the Buyer,
if the Closing shall not have been consummated within nine months after
acceptance for filing of the FCC Applications.
(vii) Notwithstanding the foregoing, no party hereto may effect a
termination hereof if such party is in material default or breach of this
Agreement.
ARTICLE 16
16.1 Risk of Loss. The risk of loss or damage to the Station Assets shall
------------
be upon Seller at all times prior to the Closing Date. In the event of loss or
damage, Seller shall promptly notify Buyer thereof and if the lost or damaged
Station Assets are capable of being replaced or repaired for an aggregate amount
less than $25,000, then Seller shall, at its sole cost and expense, replace or
repair such Station Assets prior to the Closing Date or deliver to Buyer at the
Closing an amount in cash equal to the cost of replacement or repair of such
Station Assets, as mutually agreed in good
54
faith by Buyer and Seller. Notwithstanding the foregoing, if the amount required
to replace or repair such Station Assets exceeds $25,000, Seller may elect not
to replace or repair such Station Assets, provided, however, that in such event
Buyer, at its option, may elect to terminate this Agreement or agree to accept
from Seller, at the Closing, an amount in cash equal to the cost to replace or
repair such Station Assets, as mutually agreed in good faith by Buyer and Seller
and waive any default or breach with respect to the loss or damage. Buyer may
terminate this Agreement, without any additional obligation to Buyer or Seller,
if any of the Stations is off the air or operating at less than 90 percent (90%)
of its licensed power for three (3) or more consecutive days or five (5) or more
days in any thirty (30) day period. Either party may extend the Closing Date by
up to 30 days in order to allow Seller to complete any repair or replacement,
required or authorized by this Section.
ARTICLE 17
MISCELLANEOUS PROVISIONS
------------------------
17.1 Survival of Representations and Warranties. The representations and
------------------------------------------
warranties contained in this Agreement, and in any schedule, instrument or
certificate delivered pursuant hereto, shall survive the Closing until one (1)
year after the Closing Date. The Indemnification Escrow Agreement shall be in
substantially the form of Exhibit 8.10 hereto and shall be entered into among
Buyer, Seller and an indemnification escrow agent reasonably satisfactory to
Buyer and Seller. Buyer's rights to reimbursement or indemnification for Damages
resulting from any untrue or incorrect representation or warranty of the Seller
shall not be affected by any investigation made by Buyer or whether or not Buyer
relied upon such untrue or incorrect representation or warranty.
55
17.2 Certain Interpretive Matters and Definitions. Unless the context
--------------------------------------------
otherwise requires, (i) all references to Sections, Articles or Schedules are to
Sections, Articles or Schedules of or to this Agreement, (ii) each term defined
in this Agreement has the meaning assigned to it, (iii) each accounting term not
otherwise defined in this Agreement has the meaning assigned to it in accordance
with generally accepted accounting principles as in effect on the date hereof,
(iv) "or" is disinjunctive but not necessarily exclusive, and (v) words in the
singular include the plural and vice versa, and (vi) the term "Affiliate" has
----------
the meaning given it in Rule 12b-2 of Regulation 12B under the Securities
Exchange Act of 1934, as amended. All references to "$" or dollar amounts will
be to lawful currency of the United States of America.
17.3 Further Assurances. At and after the Closing, Seller shall from time
------------------
to time, at the request of and without further cost or expense to Buyer, execute
and deliver such other instruments of assignment, conveyance and transfer and
take such other actions as may reasonably be requested in order to more
effectively consummate the transactions contemplated hereby, and Buyer shall
from time to time, at the request of and without further cost or expense to
Seller, execute and deliver such other instruments and take such other actions
as may reasonably be requested in order to more effectively assume the Assumed
Liabilities.
17.4 Audited Financial Statements. At all times after the date hereof,
----------------------------
Seller shall, and shall cause its representatives (including its independent
public accountants) to, cooperate in all reasonable respects with the efforts of
Buyer and its independent auditors to prepare such audited and interim unaudited
financial statements of the Stations as Buyer may require. Seller shall execute
56
and deliver to Buyer's independent accountants such customary management
representation letters as they may require as a condition to their ability to
sign an unqualified report upon the audited financial statements of the Stations
for the periods for which such financial statements may be required. Seller
shall cause its independent public accountants to make available to Buyer and
its representatives all of their work papers related to the financial statements
or Tax Returns of Seller (to the extent they relate to the Stations) and to
provide Buyer's independent public accountants with full access to those
personnel who previously have been involved in the audit or review of Seller's
financial statements or Tax Returns.
17.5 Assignment. Neither this Agreement nor any of the rights, interests
-----------
or obligations hereunder shall be assigned by any of the parties hereto, whether
by operation of law or otherwise; provided, however, that without releasing
Buyer from any of its obligations or liabilities hereunder (i) nothing in this
Agreement shall limit Buyer's ability to sell or transfer this Agreement, or any
or all of its assets (whether by sale of equity or assets, or by merger,
consolidation or otherwise) without the consent of Seller; (ii) nothing in this
Agreement shall limit Buyer's ability to assign the Station Licenses (including
the right to acquire the Station Licenses at the Closing) to any subsidiary of
Buyer without the consent of Seller; and (iii) nothing in this Agreement shall
limit Buyer's ability to make a collateral assignment of its rights under this
Agreement to any institutional lender that provides funds to Buyer without the
consent of Seller. Seller shall execute an acknowledgment of such assignment(s)
and collateral assignments in such forms as Buyer or its institutional lenders
may from time to time reasonably request; provided, however, that unless written
notice is given to Seller that any such assignment has been consummated or any
such collateral assignment has been
57
foreclosed upon, Seller shall be entitled to deal exclusively with Buyer as to
any matters arising under this Agreement or any of the other agreements
delivered pursuant hereto. In the event of such an assignment, the provisions of
this Agreement shall inure to the benefit of and be binding on Buyer's
successors and assigns.
17.6 Amendments. No amendment, waiver of compliance with any provision or
----------
condition hereof or consent pursuant to this Agreement shall be effective unless
evidenced by an instrument in writing signed by the party against whom
enforcement of any waiver, amendment, change, extension or discharge is sought.
17.7 Headings. The headings set forth in this Agreement are for convenience
--------
only and will not control or affect the meaning or construction of the
provisions of this Agreement.
17.8 Governing Law; The construction and performance of this Agreement
--------------
shall be governed by the laws of the State of Florida without giving effect to
the choice of law provisions thereof.
17.9 Notices. Any notice, demand or request required or permitted to be
-------
given under the provisions of this Agreement shall be in writing and shall be
deemed to have been duly delivered and received on the date of personal
delivery; on the third day after deposit in the U.S. mail if mailed by
registered or certified mail, postage prepaid and return receipt requested; on
the day after delivery to a nationally recognized overnight courier service if
sent by an overnight delivery service for next
58
morning delivery and shall be addressed to the following addresses:
(a) In the case of Seller, to:
Xx. Xxxxxx Xxxxxxxx
0000 Xxxxx Xxxxx Xxxx
Xxxxxx Xxxx Xxxxx, XX 00000
With a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxxx, PC
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxx Xxxxxxxx, XX 00000
(b) In the case of Buyer:
Xx. Xxxxxx Xxxxxx
P.O. Box 10994
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxx 00000
And:
Xx. Xxxx Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
With a copy to:
Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx & Associates, P.A.
0 X.X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
17.10 Barter and Trade. Buyer shall not assume any Trade Agreements
----------------
hereunder
59
unless (i) Buyer obtains the value of the goods and services provided in
exchange for the advertising to be broadcast and (ii) those goods and services
are useful to the business of the Stations. If the value of trade, barter, and
similar arrangements for the sale of advertising time for other than cash that
are assumed by Buyer under this Agreement is $25,000 or more, then Seller shall
pay Buyer the excess above the first $25,000 at Closing.
17.11 Schedules. The schedules and exhibits attached to this Agreement
---------
and the other documents delivered pursuant hereto are hereby made a part of this
Agreement as if set forth in full herein.
17.12 Entire Agreement This Agreement contains the entire agreement among
----------------
the parties hereto with respect to its subject matter and supersedes all
negotiations, prior discussions, agreements, letters of intent, and
understandings, written or oral, relating to the subject matter of this
Agreement.
17.13 Severability. If any provision of this Agreement is held to be
------------
unenforceable, invalid, or void to any extent for any reason, that provision
shall remain in force and effect to the maximum extent allowable, and the
enforceability and validity of the remaining provisions of this Agreement shall
not be affected thereby.
17.14 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which will be deemed an original, but all of which
together shall constitute but one and the same
60
instrument.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed and delivered as of the date first above written.
EMPIRE BROADCASTING SYSTEM, LLP
By: ___________________________________
Xxxxxx X. Xxxxxxxx
General Partner
NEXTMEDIA GROUP, LLC
By: _________________________________
Xxxxxxx Xxxxxxxxx, Secretary
61
