ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as of April 11,
1997 among Triathlon Broadcasting of Little Rock, Inc., a Delaware corporation
("Seller"), Clear Channel Radio, Inc., a Nevada corporation ("CCR") and Clear
Channel Radio Licenses, Inc., a Nevada corporation ("CCRL")
(CCR and CCRL, collectively, "Buyer").
Recitals
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A. Upon the Triathlon Closings (defined below), Seller will own and
operate the following radio broadcast stations (each a "Station" and
collectively the "Stations") pursuant to certain licenses, authorizations and
approvals (the "FCC Authorizations") issued by the Federal Communications
Commission (the "FCC"): KSSN-FM, Little Rock, Arkansas ("KSSN"); KMVK-FM,
Benton, Arkansas ("KMVK"); and, XXXX-FM, Maumelle, Arkansas ("XXXX").
B. Seller is acquiring XXXX from Southern Starr of Arkansas, Inc., an
Arkansas corporation ("Southern Starr") pursuant to an Asset Purchase Agreement
(the "XXXX APA") dated July 15, 1996 between Southern Starr and Seller. Prior
to such acquisition, Seller is providing the programming for, and is entitled
to receive the revenues from the sale of advertising on, XXXX pursuant to a
Local Marketing Agreement dated March 15, 1996 (the "XXXX LMA") between
Southern Starr and Seller.
C. Seller is acquiring KMVK from Arkansas Skies Corporation, an Arkansas
corporation ("Arkansas Skies") and KSSN from Southern Skies Corporation, an
Arkansas corporation ("Southern Skies") pursuant to an Asset Purchase Agreement
(the "KMVK/KSSN APA") dated February 8, 1996 and amended November 26, 1996
among Arkansas Skies, Southern Skies, Seller and Triathlon Broadcasting
Company, a Delaware corporation ("Triathlon").
D. As used herein, (i) "Selling Companies" means Southern Starr, Arkansas
Skies and Southern Skies, collectively, (ii) "Selling Company APAs" means the
XXXX APA and the KMVK/KSSN APA, collectively, and (iii) "Triathlon Closing"
means the consummation of the acquisition by Seller of one or more of the
Stations pursuant to one of the Selling Company APAs, and "Triathlon Closings"
means such closings, collectively.
E. Subject to the terms and conditions set forth herein, (i) Seller
desires to assign to CCRL, and CCRL desires to acquire from Seller, the FCC
Authorizations and (ii) Seller desires to convey to CCR, and CCR desires to
acquire from Seller, the other tangible and intangible assets and properties
used or held for use in the operation of the Stations.
Agreement
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NOW, THEREFORE, taking the foregoing into account, and in consideration
of the mutual covenants and agreements set forth herein, the parties, intending
to be legally bound, hereby agree as follows:
ARTICLE 1: SALE AND PURCHASE
1.1 Station Assets. Subject to and in reliance upon the representations,
warranties and agreements herein set forth, and subject to the terms and
conditions herein contained, Seller shall grant, convey, sell, assign, transfer
and deliver to Buyer on the Closing Date (as hereinafter defined) all interests
of Seller at Closing in all properties, assets, privileges, rights, interests
and claims, real and personal, tangible and intangible, of every type and
description, wherever located, including its business and goodwill (except for
Excluded Assets as defined in Section 1.2) used or held for use in the business
and operations of the Stations (collectively, the "Station Assets"). Without
limiting the foregoing, the Station Assets shall include the following:
(a) Licenses and Authorizations. All of the FCC Authorizations issued
with respect to the Stations, including without limitation all rights in and to
the call letters "KSSN-FM," "KMVK-FM," and "XXXX-FM" and any variations
thereof, and all of those FCC Authorizations listed and described on Schedule
1.1(a) attached hereto, and all applications therefor, together with any
renewals or extensions thereof and additions thereto.
(b) Tangible Personal Property. All interests in all equipment,
electrical devices, antennas, cables, vehicles, furniture, fixtures, towers,
office materials and supplies, hardware, tools, spare parts, and other tangible
personal property of every kind and description, used or held for use in
connection with the business and operations of the Stations, including without
limitation those listed and described on Schedule 1.1(b) attached hereto, and
any additions and improvements thereto between the date of this Agreement and
the Closing Date (collectively, the "Tangible Personal Property").
(c) Real Property. All interests in all land, leaseholds, licenses,
rights-of-way and other interests of every kind and description in and to all
of the real property and buildings thereon, used or held for use in the
business and operations of the Stations, including without limitation those
listed and described on Schedule 1.1(c) attached hereto, and any additions and
improvements thereto between the date of this Agreement and the Closing Date
(collectively, the "Real Property").
(d) Time Sales Agreements. All orders and agreements entered into in
the ordinary course of business for the sale of advertising time on the
Stations for cash that are cancelable without penalty that exist, with respect
to each Station, on either (i) any Effective Date (defined below) for such
Station or (ii) if an Effective Date does not occur for such Station, then the
Closing Date.
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(e) Contracts. Those contracts and agreements used in connection with
the business and operations of the Stations that are listed and described on
Schedule 1.1(e) attached hereto.
(f) Intangible Property. All interests in all trademarks, trade
names, service marks, franchises, patents, jingles, slogans, logotypes and
other intangible rights, used or held for use in connection with the business
and operations of the Stations, including without limitation all right, title
and interest in and to the marks "KSSN-FM," "KMVK-FM," and "XXXX-FM" and any
and all variations thereof, and all of those listed and described on Schedule
1.1(f) attached hereto, and those acquired between the date hereof and the
Closing Date (collectively, the "Intangible Property").
(g) Programming and Copyrights. All interests in all programs and
programming materials and elements of whatever form or nature used or held for
use in the business and operations of the Stations, whether recorded on tape or
any other substance or intended for live performance, and whether completed or
in production, and all related common-law and statutory copyrights used or held
for use in the business and operations of the Stations, together with all such
programs, materials, elements and copyrights acquired in the business and
operations of the Stations between the date hereof and the Closing Date.
(h) Files and Records. All FCC logs and other records that relate to
the operation of the Stations, and all files and other records relating to the
business and operations of the Stations (other than duplicate copies of such
files ("Duplicate Records")), including without limitation all schematics,
blueprints, engineering data, customer lists, reports, specifications,
projections, statistics, promotional graphics, original art work, mats, plates,
negatives and other advertising, marketing or related materials, and all other
technical and financial information concerning the Stations and the Station
Assets.
(i) Claims. Any and all claims and rights against third parties if
and to the extent that they relate to the Station Assets, including, without
limitation, all rights under manufacturers' and vendors' warranties.
(j) Prepaid Items. All deposits, reserves and prepaid expenses
relating to the Stations and prepaid taxes relating to the Stations or the
Station Assets.
(k) Goodwill. All goodwill in, and going concern value of, the
Stations.
1.2 Excluded Assets. There shall be excluded from the Station Assets and
retained by Seller, to the extent in existence on the Closing Date, the
following (collectively, the "Excluded Assets"):
(i) all cash, cash equivalents and publicly traded securities of
Seller;
(ii) all insurance policies of Seller;
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(iii) all pension, profit sharing and all other employee benefit
plans of Seller;
(iv) all accounts receivable, and any notes or written obligations
reflecting accounts receivable of Seller relating to each Station as of either
(i) any Effective Date (defined below) for such Station or (ii) if an Effective
Date does not occur for such Station, then the Closing Date; and
(v) any Duplicate Records.
1.3 Liabilities.
(a) The Station Assets shall be sold and conveyed to Buyer free and
clear of all mortgages, liens, deeds of trust, security interests, pledges,
restrictions, prior assignments, charges, claims, defects in title and
encumbrances of any kind or type whatsoever (collectively, "Liens") except: (i)
liens for real estate taxes not yet due and payable for which Buyer receives a
Purchase Price adjustment under Section 1.5; and (ii) the post-Closing
obligations of Seller which CCR will assume under leases and contracts assigned
to CCR that are listed on Schedules 1.1(c) and 1.1(e) ("Permitted
Encumbrances").
(b) Except as otherwise specifically provided herein, Buyer shall not
assume or be liable for, and does not undertake to attempt to, assume or
discharge: (i) any liability or obligation of Seller arising out of or relating
to any contract, lease agreement, or instrument; (ii) any liability or
obligation of Seller arising out of or relating to any employee benefit plan
otherwise relating to employment (all employment obligations shall be brought
current by Seller as of the Closing Date, including the payment of all accrued
benefits and severance pay and all bonuses, whether or not such benefits or
bonuses are due as of the Closing Date); (iii) any liability or obligation of
Seller arising out of or relating to any litigation, proceeding or claim
(whether or not such litigation, proceeding or claim is pending, threatened or
asserted before, on or after the Closing Date); (iv) any other liabilities,
obligations, debts or commitments of Seller whatsoever, whether accrued now or
hereafter, whether fixed or contingent, whether known or unknown; or (v) any
claims asserted against the Stations or any of the Station Assets relating to
any event (whether act or omission) prior to the Closing Date, including
without limitation, the payment of all taxes.
(c) Seller retains and shall hereafter pay, satisfy, discharge,
perform and fulfill all obligations and liabilities not expressly assumed by
Buyer hereunder as they become due, without any charge or cost to Buyer, and
Seller agrees to indemnify and hold Buyer and its successors and assigns
harmless from and against any and all such liabilities in accordance with the
terms of Article 9 below.
1.4 Purchase Price.
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(a) Purchase Price. The purchase price to be paid for the Station
Assets will be an amount equal to the sum of (i) Twenty Million Dollars
($20,000,000) plus or minus (ii) the Closing Date Adjustments pursuant to
Section 1.5 hereof (the "Purchase Price").
(b) Method of Payment. Upon Closing, the Purchase Price shall be paid
by Buyer in immediately available funds pursuant to written instructions of the
Seller to be delivered by Seller to Buyer at least three (3) business days
prior to Closing.
(c) Allocation of Purchase Price. Buyer and Seller will allocate the
Purchase Price in accordance with the respective fair market values of the
Station Assets and the goodwill being purchased and sold in accordance with the
requirements of Section 1060 of the Internal Revenue Code of 1986, as amended
(the "Code"). The allocation shall be determined by mutual agreement of the
parties. Buyer and Seller each further agrees to file its federal income tax
returns and its other tax returns reflecting such allocation.
1.5 Adjustments.
(a) Except as provided in LMA or JSA (defined below), the operation
of the Stations and the income and normal operating expenses attributable
thereto through the date preceding the Closing Date (the "Adjustment Date")
shall be for the account of Seller and thereafter for the account of Buyer,
and, if any income or expense is properly allocable or credited, then it shall
be allocated, charged or prorated accordingly. Except as provided in any LMA or
JSA (defined below), expenses for goods or services received both before and
after the Adjustment Date, power and utilities charges, frequency discounts,
prepaid time sales agreements, and rents and similar prepaid and deferred items
shall be prorated between Seller and Buyer as of the Adjustment Date in
accordance with generally accepted accounting principles. All special
assessments and similar charges or liens imposed against the Real Property and
Tangible Personal Property in respect of any period of time through the
Adjustment Date, whether payable in installments or otherwise, shall be the
responsibility of Seller, and amounts payable with respect to such special
assessments, charges or liens in respect of any period of time after the
Adjustment Date shall be the responsibility of Buyer, and such charges shall be
adjusted as required hereunder. To the extent that any of the foregoing
prorations and adjustments cannot be determined as of the Closing Date, Buyer
and Seller shall conduct a final accounting and make any further payments, as
required on a date mutually agreed upon, within ninety (90) days after the
Closing.
(b) With respect to trade, barter or similar agreements for the sale
of time for goods or services ("Barter Agreements") assumed by Buyer pursuant
to Section 1.1(e), if any, if there exists on the date (or dates) or assumption
an aggregate negative barter balance (i.e., the amount by which the value of
air time (based upon the Stations' then prevailing rates) to be provided
exceeds the fair market value of goods or services to be received therefor) for
all Stations of $15,000 or more, then the amount by which such negative balance
exceeds $15,000 will be treated as prepaid time sales and adjusted for as a
proration in Buyer's favor. If, however, there exists on such date (or dates)
an aggregate positive barter balance (i.e., the amount by which the value of
airtime (based upon the Stations' then prevailing rates) to be
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provided is less than the fair market value of goods or services to be received
therefor) with respect to Barter Agreements assumed by Buyer, there shall be no
proration in Seller's favor.
1.6 Closing. The consummation of the sale and purchase of the Station
Assets provided for in this Agreement (the "Closing") shall take place at a
date and time designated by Buyer within five (5) days of the date of the FCC
Consent (as defined in Section 4.4) pursuant to the FCC's initial order,
subject to the satisfaction or waiver of the last of the conditions required to
be satisfied or waived pursuant to Articles 6 or 7 below (other than those
requiring a delivery of a certificate or other document, or the taking of other
action, at the Closing), but in no event later than two years after the date of
this Agreement (the "Final Closing Date"); provided, however, that, if a
petition to deny or other objection is filed against the Application (as
defined in Section 4.4) or before Closing a petition for reconsideration or
application for review is filed with respect to the FCC Consent (defined in
Section 4.4), then, at Buyer's option, the Closing shall occur within five days
after the date of the FCC Consent (as defined in Section 4.4.) pursuant to the
FCC's Final (as defined in Section 4.4) order, subject to the satisfaction or
waiver of the last of the conditions required to be satisfied or waived
pursuant to Articles 6 or 7 below (other than those requiring a delivery of a
certificate or other document, or the taking of other action, at the Closing),
but in no event later than the Final Closing Date. Alternatively, the Closing
may take place at such other place, time or date as the parties may mutually
agree upon in writing. The date on which the Closing is to occur is referred to
herein as the "Closing Date."
1.7 Noncompete. On the Closing Date, Seller shall enter into, and Seller
shall cause Triathlon (on behalf of it and all of its Affiliates (defined
below)) (collectively, the "Covenators") to enter into, a two year
Non-Competition Agreement in the form and substance reasonably satisfactory to
Buyer (the "Noncompetition Agreement"), for no additional consideration. In
connection with the allocation under Section 1.4(c), a portion of the Purchase
Price shall be allocated as consideration for the Noncompetition Agreement.
1.8 LMA/JSA. With respect to each Station, if permitted by FCC rules and
if requested by Buyer at any time prior to Closing, Seller shall execute,
deliver and perform either of the following agreements (as designated by
Buyer): (i) a Local Programming and Marketing Agreement (an "LMA") providing
that Buyer will provide the programming for, and be entitled to receive the
revenues from the sale of advertising on, such Station, and containing
customary terms reasonably satisfactory to Buyer and Seller or (ii) an
Agreement for the Sale of Commercial Time (a "JSA") providing that Buyer shall
be entitled to all of the time available for commercial spot announcements on
the Station for resale to advertisers, and Buyer shall be entitled to receive
the revenues from the sale of advertising on the Station, and containing
customary terms reasonably satisfactory to Buyer and Seller. With respect to
each Station, if Buyer and Seller enter into an LMA or JSA, and if requested by
Buyer (and if permitted by FCC rules) Seller shall convert any JSA to an LMA or
convert any LMA to a JSA, as the case may be. As used herein, the term
"Effective Date" means the date the term of any LMA and JSA commences. The
Effective Date shall not occur (i) with respect to KSSN, prior to the Triathlon
Closing with respect thereto (ii) with respect to KMVK, prior to the Triathlon
Closing with respect thereto, and (iii) with respect to each Station, prior to
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satisfaction of the Closing condition described in Section 6.4 and 7.4 of this
Agreement. Buyer's rights to elect to effect an LMA or a JSA (or neither) and
to convert hereunder may be exercised from time to time separately with respect
to each Station.
ARTICLE 2: REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
2.1 Corporate Status. Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware. Seller
is duly qualified to do business and is in good standing in such states in
which the failure to so qualify would have a material adverse effect on the
business of the Stations. Seller has the requisite power to carry on the
business of the Stations as it is now being conducted and to own and operate
the Stations, and Seller has the requisite power to enter into and complete the
transactions contemplated by this Agreement. Seller has not used any name in
the operation of its business other than its name as first set forth above and
the Stations' call letters. Triathlon owns all of the issued and outstanding
shares of stock of Seller.
2.2 Authority. All corporate actions necessary to be taken by or on the
part of Seller in connection with the transactions contemplated by this
Agreement have been duly and validly taken, and this Agreement has been duly
and validly authorized, executed, and delivered by Seller and constitutes the
legal, valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms.
2.3 No Conflict. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not
(a) conflict with or violate the certificate of incorporation or bylaws of
Seller; (b) conflict with or violate or result in any breach of or any default
under, result in any termination or modification of, or cause any acceleration
of any obligation under, any Contract (defined below) to which Seller is a
party or by which it is bound, or by which the Stations or any of the Station
Assets may be affected, or result in the creation of any Lien upon any of the
Station Assets; or (c) violate any judgment, decree, order, statute, law, rule
or regulation applicable to Seller, the Stations or any of the Station Assets.
2.4 Commitments. Neither Seller nor any of the Selling Companies is a
party to or bound by any written, oral or implied contract, agreement, lease or
instrument or other commitment (each a "Contract"), including but not limited
to any indenture, mortgage, guaranty, surety arrangement, or any contract or
agreement for the purchase or sale of merchandise, programming or advertising
time on the Stations or for the rendition of services, except for agreements
for the sale of time on the Stations described in Section 1.1(d), the Real
Property leases and the Contracts listed on Schedules 1.1(c) and 1.1(e), and
except for: (a) any written contract terminable without penalty or involving a
commitment of less than $1,000 individually or $10,000 in the aggregate for the
purchase or sale of goods, supplies, equipment, capital assets, products or
services; and (b) any written contracts involving less than $1,000 individually
or $10,000 in the aggregate (when combined with all those described
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in clause (a) above) entered into in the ordinary and usual course of business
from the date hereof until the Closing Date. Seller has delivered to Buyer true
and complete copies of all Real Property leases and Contracts listed Schedules
1.1(c) and 1.1(e).
2.5 No Breach. Seller is not in violation or breach of any of the terms,
conditions or provisions of any Contract, court order, judgment, arbitration
award, or decree relating to or affecting the Stations or the Station Assets to
which Seller is a party or by which it is bound.
2.6 Financial Statements. Attached as Schedule 2.6 hereto are copies of
(i) the audited balance sheets of Southern Skies and Arkansas Skies for the
years ended December 31, 1994 and December 31, 1995 and the audited statements
of income of such Selling Companies for each of the years then ended, (ii) the
unaudited monthly statements of revenues and expenses of Southern Skies and
Arkansas Skies for each month from January, 1996 through February, 1997, and
(iii) the unaudited monthly statements of revenues and expenses of Seller for
XXXX for each month from the date of the XXXX LMA (being March, 1996) through
January, 1997 (collectively, the "Financial Statements"). The Financial
Statements are complete and correct, have been prepared in accordance with
books and records regularly maintained, present fairly the financial position
of the Stations as of those dates and the results of its operations for the
periods indicated in accordance with generally accepted accounting principles,
and properly and fairly disclose and allocate all transactions with any
Affiliates. Buyer may conduct an audit of Seller's books and records at any
time. The Financial Statements include all financial statements provided to
Seller by any of the Selling Companies.
2.7 Liabilities. Neither Seller nor the Selling Companies have any
liabilities or obligations relating to the Stations of any kind or nature,
whether known or unknown, due or not yet due, liquidated or unliquidated,
fixed, contingent or otherwise, except as and to the extent reflected in the
Financial Statements.
2.8 Taxes. Seller and the Selling Companies have filed all applicable
federal, state, local and foreign tax returns required to be filed, in
accordance with provisions of law pertaining thereto, and has paid all taxes,
interest, penalties and assessments (including without limitation income,
withholding, excise, unemployment, Social Security, occupation, transfer,
franchise, property, sales and use taxes, import duties or charges, and all
penalties and interest in respect thereof) required to have been paid with
respect to or involving the Stations or the Station Assets. Neither Seller nor
the Selling Companies have been advised that any of its returns, federal,
state, local or foreign, have been or are being audited.
2.9 Licenses. The Selling Companies are, and, with respect to each
Station, upon each Triathlon Closing, Seller will be, the holder(s) of the FCC
Authorizations listed and described on Schedule 1.1(a). Such FCC Authorizations
constitute all of the licenses and authorizations required under the
Communications Act of 1934, as amended (the "Communications Act"), or the
rules, regulations and policies of the FCC for, and used in the operation of,
the Stations. The FCC Authorizations are in full force and effect and have not
been revoked, suspended, canceled, rescinded or terminated and have not
expired. There is not pending or threatened any action by or before the FCC to
revoke, suspend, cancel, rescind
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or modify any of the FCC Authorizations (other than proceedings to amend FCC
rules of general applicability), and there is not now issued or outstanding or
pending or threatened, by or before the FCC, any order to show cause, notice of
violation, notice of apparent liability, or notice of forfeiture or complaint
against the Selling Companies, Seller or any Station. Each Station is operating
in compliance with the FCC Authorizations, the Communications Act, and the
rules, regulations and policies of the FCC.
2.10 Additional FCC Matters.
(a) All reports and filings required to be filed with the FCC by the
Selling Companies or Seller with respect to the Stations (including without
limitation all required equal employment opportunity reports) have been timely
filed. All such reports and filings are accurate and complete. Public files for
the Stations are maintained as required by FCC rules. With respect to FCC
licenses, permits and authorizations, the Selling Companies are operating, and
Seller will operate, only those facilities for which an appropriate FCC
Authorization has been obtained and is in effect, and the Selling Companies are
meeting, and Seller will meet, the conditions of each such FCC Authorization.
(b) Seller is aware of no facts indicating that any of the Selling
Companies or Seller is not in compliance with all requirements of the FCC, the
Communications Act, or any other applicable federal, state and local statutes,
regulations and ordinances. Seller is aware of no facts and Seller has received
no notice or communication, formal or informal, indicating that the FCC is
considering revoking, suspending, canceling, rescinding or terminating any FCC
Authorization.
(c) The operation of the Stations does not cause or result in
exposure of workers or the general public to levels of radio frequency
radiation in excess of the "Radio Frequency Protection Guides" recommended in
"American National Standard Safety Levels with Respect to Human Exposure to
Radio Frequency Electromagnetic Fields 300 KHz to 100 gHz" (ANSI C95.1-1982),
issued by the American National Standards Institute, and renewal of the FCC
Authorizations would not constitute a "major action" within the meaning of
Section 1.1301, et seq., of the FCC's rules.
2.11 Approvals and Consents. Except as described in Schedule 2.11 hereto,
the execution, delivery and performance by the Seller of this Agreement and the
consummation by it of the transactions contemplated hereby will not require any
consent, permit, license or approval of, or filing with or notice to, any
person, entity or governmental or regulatory authority under any provision of
law applicable to Seller or any Contract or Real Property lease, except as
contemplated by Sections 4.4 (FCC Authorization) and 4.8 (Xxxx-Xxxxx-Xxxxxx).
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2.12 Station Assets. The Station Assets constitute all of the assets
necessary to conduct the present operations of the Stations. Schedule 1.1(b)
contains a description of all items of Tangible Personal Property having an
original cost in excess of $1,000. The Selling Companies have, and, with
respect to each Station, upon each Triathlon Closing, Seller will have, good,
valid and marketable title to all of the Station Assets, free and clear of all
Liens (other than Permitted Encumbrances). All items of Tangible Personal
Property, including equipment and electrical devices, are in good operating
condition and repair, are free from all material defect and damage, are
functioning in the manner and for the purposes for which it was intended, have
been maintained in accordance with industry standards, and do not require any
repairs other than normal routine maintenance.
2.13 Real Property.
(a) Schedule 1.1(c) contains descriptions of all real property owned
or leased and used or held for use in connection with the business and
operations of the Stations and leases or licenses or other rights to possession
of any real property so used or held.
(b) The Selling Companies have, and, with respect to each Station,
upon each Triathlon Closing, Seller will have, fee simple title to the Real
Property so described by metes and bounds on Schedule 1.1(c) as being so owned
(the "Owned Property"). As to the Owned Property, the Selling Companies have,
and, with respect to each Station, upon each Triathlon Closing, Seller will
have, good, valid and marketable fee simple title to such premises and all
buildings, towers, antennae, free of any Liens (other than Permitted
Encumbrances). The Owned Property includes sufficient access to the Stations'
facilities without need to obtain any other access rights. The Real Property
and all of the buildings, towers, antennae, fixtures and improvements, and all
heating and air conditioning equipment, plumbing, electrical and other
mechanical facilities, and the roof, walls and other structural components of
the Real Property which are part of, or located in, such buildings, towers,
antennae or improvements, are in good operating condition and repair
(reasonable wear and tear excepted), comply in all material respects with
applicable zoning laws and the building, health, fire and environmental
protection codes of all applicable governmental jurisdictions, have no
structural defects, and do not require any repairs other than normal routine
maintenance to maintain them in good condition and repair. Seller has delivered
to Buyer copies of all title insurance policies in its possession that are
applicable to the Real Property.
(c) The Selling Companies lease, and, with respect to each Station,
upon each Triathlon Closing, the Seller will lease, as a tenant, the premises
described on Schedule 1.1(c) as being so leased. The leases listed in Schedule
1.1(c) hereto constitute all the Real Property leases to which any of the
Selling Companies or Seller is a party (either as lessor or lessee) and which
are required or useful in the conduct of the business of the Stations. Seller
has delivered to Buyer true and complete copies of such leases. All buildings,
structures, improvements, fixtures, and appurtenances are in good maintenance,
operating condition, and repair; are adequate and suitable for the purposes for
which they are presently being used; and conform to all applicable laws,
ordinances, and regulations.
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(d) With respect to the leases of Real Property listed in Schedule
1.1(c) hereto, the Selling Companies have, and, with respect to each Station,
upon each Triathlon Closing, Seller will have, good title to its interest in
such Real Property, free and clear of all Liens (other than Permitted
Encumbrances). With respect to each such lease, (i) each such lease is in full
force and effect, and is valid, binding and enforceable in accordance with its
terms, (ii) all accrued and currently payable rents and other payments required
thereunder have been paid, (iii) each such lease was entered into in the
ordinary course of business and has provided for peaceable possession since the
beginning of the original term thereof, (iv) each party thereto has complied
with all respective covenants and provisions of thereof, (v) no party is in
default in any respect thereunder, (vi) no party has asserted any defense, set
off or counterclaim thereunder, (vii) no waiver, indulgence, or postponement of
any obligations thereunder has been granted by any party, (viii) no notice of
default or termination has been given or received, no event of default has
occurred, and no condition exists and no event has occurred that, with the
giving of notice, the lapse of time, or the happening of any further event
would become a default or permit early termination thereunder, (ix) no party
has violated any term or condition thereunder, and (x) the validity or
enforceability thereof will in no way be affected by the sale of the Station
Assets as contemplated herein. Each such lease provides sufficient access to
the Stations' facilities without need to obtain any other access rights. Except
as set forth in Schedule 2.11 hereto, no third-party consent or approval is
required for the assignment of any such lease to Buyer, or for the consummation
of the transactions contemplated herein.
2.14 Environmental Matters.
(a) As used herein, (i) the term "Environmental Laws" shall mean any
and all state, federal, and local statutes, regulations and ordinances relating
to the protection of human health and the environment, and (ii) the term
"Hazardous Material" shall mean any hazardous or toxic substance, material, or
waste, including, but not limited to those substances, materials, pollutants,
contaminants and wastes listed in the United States Department of
Transportation Hazardous Materials Table (49 C.F.R. ss.172.101) or by the
United States Environmental Protection Agency as hazardous substances (40
C.F.R. Part 302 and amendments thereto), petroleum products (as defined in
Title I to the Resource Conservation and Recovery Act, 42 U.S.C.
ss.6991-6991(i)) and their derivatives, and such other substances, materials,
pollutants, contaminants and wastes as become regulated or subject to cleanup
authority under any Environmental Laws.
(b) Seller represents and warrants that:
(i) all activities of the Stations or of the Selling
Companies and Seller with respect to the Stations and the Real Property have
been and are being conducted in compliance with all federal, state and local
statutes, ordinances, rules, regulations and orders, as well as all
requirements of common law concerning those activities, repairs or construction
of any improvements, manufacturing processing and/or handling of any materials,
and discharges to the air, soil, surface water or groundwater;
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(ii) Seller has no knowledge of the release or presence of any
Hazardous Material on, in, from or onto the Real Property;
(iii) neither Seller nor the Selling Companies has generated,
manufactured, refined, transported, stored, handled, disposed of or released
any Hazardous Material on the Real Property, nor has Seller or the Selling
Companies or the Stations permitted the foregoing;
(iv) the Stations have obtained all approvals and caused all
notifications to be made as required by Environmental Laws;
(v) Seller has delivered to Buyer a true and complete list of
all of the Stations' registrations with, licenses from, or permits issued by
governmental agencies or authorities pursuant to environmental, health and
safety laws, and all such registrations, licenses or permits are in full force
and effect;
(vi) Seller has not received any notice of any violation of
any Environmental Laws;
(vii) no action has been commenced or threatened regarding the
Stations' compliance with any Environmental Laws;
(viii) no tanks used for the storage of any Hazardous Material
above or below ground are present or were at any time present on or about the
Real Property;
(ix) no action has been commenced or threatened regarding the
presence of any Hazardous Material on or about the Real Property;
(x) no Hazardous Materials are present in any medium in the
operations of the Stations (or of Seller with respect to the Stations) and/or
at the Real Property in such a manner as may require investigation or
remediation under any applicable law;
(xi) no polychlorinated biphenyls or substances containing
polychlorinated biphenyls are present on the Real Property; and
(xii) no friable asbestos is present in the operations of the
Stations and/or on the Real Property.
(c) Seller has not and will not release or waive the liability of
any previous owner, lessee, or operator of the Real Property or any party who
may be potentially responsible for the presence or removal of Hazardous
Material on or about the Real Property. Seller has no indemnification
obligation regarding Hazardous Material to any party.
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(d) In addition to the terms of Article 9, Seller further agrees to
defend (with counsel approved by Buyer), fully indemnify, and hold entirely
free and harmless Buyer from and against all claims, judgments, damages,
penalties, fines, costs, liabilities, or losses (including, without limitation,
sums paid in settlement of claims, attorneys' fees, consultant fees, and expert
fees) that are imposed on, paid by, or asserted against Buyer, its successors
or assigns, by reason or on account of, or in connection with, or arising out
of (a) the presence or suspected presence of Hazardous Material in the soil,
groundwater, or soil vapor on or about the Real Property, or (b) the migration
of any Hazardous Material from or onto the Real Property, or (c) the violation
of any Environmental Law, and, with respect to (a), (b) and (c), that existed
as of or prior to the date of Closing. This indemnification of Buyer by Seller
includes without limitation, costs incurred in connection with any of the
following:
(i) any investigative or remedial action involving the
presence of Hazardous Material on or about the Real Property or releases of
Hazardous Material from the Real Property;
(ii) any allegations made by any governmental authority or
any private citizen or entity or group of citizens or entities as to the
violation of any Environmental Laws involving the Real Property or the
operations conducted thereon; and/or
(iii) any injury or harm of any type to any person or entity
or damage to any property arising out of, in connection with, or in any way
relating to (A) the generation, manufacture, refinement, transportation,
treatment, storage, recycling, disposal or release, or other handling of
Hazardous Material on or about the Real Property or pursuant to the operations
conducted thereon, and/or (B) the violation of any Environmental Laws, and/or
(C) the contamination of the Real Property.
(e) Buyer shall have the right to conduct a review of the Real
Property and take soil and water samples (including groundwater samples) from
the Real Property, and to test and analyze those samples to determine the
extent of any contamination of the soils and water (including groundwater) on
or about the Real Property. If, based on the results of those inspections
and/or tests, Buyer determines that the condition of the Real Property is
unsatisfactory or if Buyer believes that its ownership of the Real Property
would expose Buyer to undue risks of government intervention or third-party
liability, Buyer may, without any liability owing to Seller, cancel the
purchase of the Real Property and terminate this Agreement.
2.15 Compliance with Law. The Stations, the Station Assets and Seller and
the Selling Companies with respect to the Stations and the Station Assets are,
in all material respects, in compliance with all requirements of law, federal,
state and local, and all requirements of all governmental bodies or agencies
having jurisdiction over any of them, the operation of the Stations, the use of
its properties and assets (including the Station Assets), and the Real
Property. Without limiting the foregoing, Seller and the Selling Companies have
paid all monies and obtained all licenses, permits, certificates and
authorizations needed or required for the operation of the Stations and the use
of the Real Property. Seller and the Selling
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Companies have properly filed all reports and other documents required to be
filed with any federal, state, local or foreign government or subdivision or
agency thereof. Seller has not received any notice, not heretofore complied
with, from any federal, state or municipal authority or any insurance or
inspection body that any of its properties, facilities, equipment or business
procedures or practices fails to comply with any applicable law, ordinance,
regulation, building or zoning law, or requirement of any public authority or
body.
2.16 Insurance. The Selling Companies maintain insurance policies
relating to the Stations bearing the policy numbers, for the terms, with the
companies, in the amounts, providing the general coverage set forth on Schedule
2.16 hereto. All of such policies are in full force and effect and the Selling
Companies are not in default of any material provision thereof. The Selling
Companies have not received notice from any issuer of any such policies of its
intention to cancel, terminate or refuse to renew any policy issued by it. With
respect to each Station, upon each Triathlon Closing, Seller will maintain in
full force and effect, and without default, not less than such insurance
coverage with respect to the Stations.
2.17 Employment Matters.
(a) There are no collective bargaining agreements, or written or
oral agreements relating to the terms and conditions of employment or
termination of employment, covering any employees, consultants or agents of the
Stations, except as listed and described in Schedule 2.17 hereto. Except as
listed and described in Schedule 2.17, none of the employees of the Stations
have written employment contracts. The Stations are not engaged in any unfair
labor practice or other unlawful employment practice, and there are no unfair
labor practice charges or other employee related complaints, grievances or
arbitrations, against Seller pending before the National Labor Relations Board,
the Equal Employment Opportunity Commission, the Occupational Safety and Health
Administration, the Department of Labor, any arbitration tribunal or any other
federal, state, local or other governmental authority by or concerning the
Stations' employees. There is no strike, picketing, slowdown or work stoppage
by or concerning such employees pending against or involving the Stations. No
representation question is pending or threatened respecting any of the
Stations' employees. Seller has delivered to Buyer copies of all letters,
memoranda of understanding, past practices, assurances or other agreements
modifying such collective bargaining agreements and other similar employee
agreements.
(b) All handbooks, policies and procedures relating to all aspects
of employment, including but not limited to compensation, benefits, equal
employment opportunity and safety are listed and described in Schedule 2.17
attached hereto.
(c) The Stations, and Seller and the Selling Companies with respect
to the Stations, have complied with in the past and are now in compliance with
all labor and employment laws, including without limitation federal, state,
local and other applicable laws, rules, regulations, ordinances, order and
decrees concerning collective bargaining, unfair labor practices, payments of
employment taxes, occupational safety and health, worker's compensation, the
payment of wages and overtime, and equal employment opportunity. The
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Stations and Seller and the Selling Companies with respect to the Stations, are
not liable for any arrears or wages, benefits, taxes, damages or penalties for
failing to comply with any law, rule, regulation, ordinance, order or decree
relating in any way to labor or employment.
(d) Buyer shall have no obligation or liability due to or because of
any past service liability, vested benefits, retirement plan insolvencies or
other retirement plan or past employment obligation (except as provided herein)
under local, state or federal law (including the Employee Retirement Income
Security Act of 1974, as amended), resulting from the purchase of the Stations
or from former employees of Seller or the Selling Companies becoming employees
of Buyer.
(e) Seller has provided to Buyer the names of all present employees
of the Stations and the positions, total annual compensation and accrued
vacation and sick time of each.
2.18 Litigation. There are no suits, arbitrations, administrative charges
or other legal proceedings, claims or governmental investigations pending
against, or threatened against, the Stations or Seller or the Selling Companies
relating to or affecting the Stations nor, to the best of the knowledge of
Seller, is there any basis for any such suit, arbitration, administrative
charge or other legal proceeding, claim or governmental investigation. Neither
Seller nor the Selling Companies has been operating under or subject to, or in
default with respect to, any judgment, order, writ, injunction or decree of any
court or federal, state, municipal or other governmental department,
commission, board, agency or instrumentality, foreign or domestic.
2.19 Intangible Property. The Selling Companies have, and, with respect
to each Station, upon each Triathlon Closing, Seller will have, all right,
title and interest in and to all Intangible Property necessary to the conduct
of the Stations as presently operated. Schedule 1.1(f) contains a description
of all material Intangible Property. Neither Seller nor any of the Selling
Companies has received notice of any claim that any Intangible Property or the
use thereof conflicts with, or infringes upon, any rights of any third party
(and there is no basis for any such claim of conflict). The Stations have the
sole and exclusive right to use the Intangible Property. No service provided by
the Stations or any programming or other material used, broadcast or
disseminated by the Stations infringes upon any copyright, patent or trademark
of any other party.
2.20 Bulk Sales. Neither the sale and transfer of the Station Assets
pursuant to this Agreement, nor Buyer's possession and use thereof from and
after Closing because of such sale and transfer, will be subject to any law
pertaining to bulk sales or transfers or imposing liability upon Buyer for
appraisal or liability owing to Seller.
2.21 Brokers. There is no broker or finder or other person entitled to a
commission or brokerage fee or payment in connection with this Agreement or the
transactions contemplated hereby as a result of any agreement of, or action
taken by, Seller.
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2.22 Absence of Material Change.
(a) Since the date of the most recent audited Financial Statements
for KMVK and KSSN and since the date of the XXXX LMA for XXXX:
(i) there has not been and there is not threatened any
material adverse change in the financial condition, business, prospects or
affairs of Seller or the Selling Companies relating to the Stations or any
material physical damage or loss to any of the Station Assets (whether or not
such damage or loss is covered by insurance);
(ii) Seller and the Selling Companies have not taken any
action with respect to the Stations outside of the ordinary and usual course of
business, except as related to the transactions contemplated hereby;
(iii) Seller and the Selling Companies have with respect to the
Stations or the Station Assets have not borrowed any money or become
contingently liable for any obligation or liability of others;
(iv) Seller and the Selling Companies have with respect to the
Stations paid all of its liabilities and obligations as they became due;
(v) Seller and the Selling Companies with respect to the
Stations have not incurred any liability or obligation of any nature to any
party, except for obligations arising from the purchase of goods or the
rendition of services in the ordinary course of business;
(vi) neither Seller nor the Selling Companies has waived any
right of substantial value;
(vii) Seller and the Selling Companies have maintained their
books, accounts and records in the usual, customary and ordinary manner; and
(viii) Seller and the Selling Companies with respect to the
Stations has preserved their business organization intact, kept available the
services of their employees, and preserved their relationships with its
customers, suppliers and others with whom they deal.
2.23 FAA Compliance. The Stations and the Station Assets are in material
compliance with all rules and regulations of the Federal Aviation
Administration applicable to the Stations.
2.24 Affiliates. No Affiliate of Seller (or the Selling Companies) has an
interest in any of the Station Assets or any property used in the operation of
the Stations. Neither Seller (or the Selling Companies) nor any Affiliate of
Seller (or the Selling Companies), has any financial interest in any supplier,
advertiser or customer of the Stations or in any other business with which the
Stations do business or compete. For purposes of this Agreement, an "Affiliate"
of an entity means any person (or any relative of any person) or entity that
owns or
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controls, is owned or controlled by, or under common control with, Seller (or
the Selling Companies).
2.25 Selling Company APAs. The Selling Company APAs, as filed with the
FCC (with respect to the amendment to the KMVK/KSSN APA, as provided by Seller
to Buyer), are in full force and effect and have not been amended or modified.
No breach or default has occurred under the Selling Company APAs and no event
has occurred or condition exists that with notice or time or both would result
in a breach or default thereunder.
2.26 Disclosure. No provision of this Agreement relating to Seller, the
Stations or the Station Assets or any other document, Schedule, Exhibit or
other information furnished by Seller to Buyer in connection with the
execution, delivery and performance of this Agreement, or the consummation of
the transactions contemplated hereby, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
required to be stated in order to make the statement, in light of the
circumstances in which it is made, not misleading. Seller will disclose to
Buyer any fact known to Seller which Seller knows or believes would affect
Buyer's decision to proceed with the execution of this Agreement. Except for
facts affecting the radio industry generally, there is no adverse fact now
known to Seller relating to the Stations or the Station Assets which has not
been disclosed to Buyer.
ARTICLE 3: REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller:
3.1 Status. Each Buyer is a Nevada corporation which is duly organized,
validly existing and in good standing under the laws of the State of Nevada.
Buyer has the requisite power to enter into and complete the transactions
contemplated by this Agreement.
3.2 No Conflicts. Neither the execution, delivery and performance by
Buyer of this Agreement nor the consummation by Buyer of the transactions
contemplated hereby will: (a) conflict with or violate the certificate of
incorporation or bylaws of Buyer; or (b) violate any judgment, decree, order,
statute, rule or regulation applicable to Buyer.
3.3 Corporate Action. All corporate actions necessary to be taken by or
on the part of Buyer in connection with the transactions contemplated by this
Agreement have been duly and validly taken, and this Agreement has been duly
and validly authorized, executed and delivered by Buyer and constitutes the
legal, valid and binding obligation of Buyer, enforceable against Buyer in
accordance with and subject to its terms.
3.4 Brokers. There is no broker or finder or other person entitled to a
commission or brokerage fee or payment in connection with this Agreement or the
transactions contemplated hereby as a result of any agreement of or action
taken by Buyer.
3.5 Qualification. To the best of Buyer's knowledge, upon grant by the
FCC of a waiver of the FCC's One-to-a-Market Rule (47 C.F.R. ss. 73.3555(c))
(the "Market Rule
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Waiver"), Buyer will be qualified under the Communications Act and the existing
rules, regulations and policies of the FCC to hold the FCC Authorizations.
ARTICLE 4: COVENANTS OF SELLER
Seller covenants and agrees (and, with respect to Section 4.4, Buyer
covenants and agrees) that from the date hereof until the completion of the
Closing:
4.1 Operation of the Business.
(a) Seller shall continue to carry on the business of the Stations
and keep its books and accounts, records and files in the usual and ordinary
manner in which the business has been conducted in the past. Seller shall
collect the Stations' accounts receivable only in the ordinary course of
business consistent with past practice. Seller shall operate the Stations in
accordance with the terms of the FCC Authorizations and in compliance in all
material respects with all applicable laws, rules and regulations and all
applicable FCC rules and regulations. Seller shall maintain the FCC
Authorizations in full force and effect and shall timely file and prosecute any
necessary applications for renewal of the FCC Authorizations.
(b) Seller shall provide Buyer with copies of the regular monthly
internal operating statements relating to (i) XXXX for February, 1997 and each
month thereafter before Closing and (ii) the other Stations for each month
after the Triathlon Closings until Closing, in each case by the 20th day of
each calendar month for the preceding calendar month, which shall present
fairly the financial position of the Stations and the results of operations for
the period indicated in accordance with generally accepted accounting
principles. Such monthly statements shall show: (i) the actual results for such
month and the budget for such month by line item, and (ii) account for items of
non-recurring income and expense separately and (iii) account for and
separately state all intercompany allocations of expenses relating to the
Stations, all of which shall be presented fairly and in accordance with
generally accepted accounting principles. Seller shall also provide Buyer with
copies of all operating statements and other financial statements and reports
provided to Seller by any of the Selling Companies during such period.
(c) Seller shall make all reasonable efforts to preserve the business
organization of the Stations intact, retain substantially as at present the
Stations' employees, consultants and agents, and preserve the goodwill of the
Stations' suppliers, advertisers, customers and others having business
relations with it.
(d) Nothing contained in this Agreement shall give Buyer any right to
control the programming, operations or any other matter relating to the
Stations prior to the Closing Date, and Seller shall have complete control of
the programming, operations and all other matters relating to the Stations, up
to the Closing Date.
(e) Seller shall keep all Tangible Personal Property and Real
Property in good operating condition (ordinary wear and tear excepted) and
repair and maintain adequate
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and usual supplies of inventory, office supplies, spare parts and other
materials as have been customarily maintained in the past. Seller shall
preserve intact the Station Assets and maintain in effect its current casualty
and liability insurance on the Station Assets.
(f) Seller shall not, by any act or omission, cause any of the
representations and warranties set forth in Article 2 to become untrue or
incorrect, and shall cause the conditions to Closing set forth in Article 7
below to be satisfied, and ensure that the transactions contemplated hereby
shall be consummated as set forth herein.
(g) Prior to the Closing Date, Seller shall not permit the Selling
Companies to, and Seller shall not, without the prior written consent of Buyer:
(i) sell, lease, transfer, or agree to sell, lease or
transfer, any Station Assets except for non-material sales or leases, in the
ordinary course of business of items which are being replaced by assets of
comparable or superior kind, condition and value and except for the
consummation of the Triathlon Closings;
(ii) except as may be required by applicable law, grant any
raises to employees of the Stations, pay any substantial bonuses or enter into
any contract of employment with any employee or employees of the Stations,
except in the ordinary course of business;
(iii) renew, renegotiate, modify, amend or terminate any
existing time sales contracts with respect to the Stations except in the
ordinary course of business;
(iv) enter into, renew or amend any other Contract with respect
to the Stations except in the ordinary course of business;
(v) apply to the FCC for any construction permit that would
restrict the present operations of the Stations, or make any change in any of
the buildings, leasehold improvements or fixtures of the Stations, except in
the ordinary course of business; or
(vi) enter into any barter or trade contracts that are prepaid,
or any contract with an Affiliate of Seller.
4.2 Access to Facilities, Files and Records. At the request of Buyer,
Seller shall from time to time give or cause to be given to the officers,
employees, accountants, counsel, agents, consultants and representatives of
Buyer: (a) full access during normal business hours to all facilities,
properties, accounts, books, deeds, title papers, insurance policies, licenses,
agreements, contracts, commitments, records and files of every character,
equipment, machinery, fixtures, furniture, vehicles, notes and accounts payable
and receivable of Seller with respect to the Stations; and (b) all such other
information concerning the affairs of the Stations as Buyer may reasonably
request. All such information, when provided by Seller, shall be deemed to have
been represented and warranted by Seller to be correct, complete and fully
responsive to Buyer's request therefor. Any investigation or examination by
Buyer shall
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not in any way diminish or obviate any representations or warranties of Seller
made in this Agreement or in connection herewith. Seller shall cause its
accountants and any agent of Seller in possession of Seller's books and records
to cooperate with Buyer's requests for information pursuant to this Agreement.
4.3 Representations and Warranties. Seller shall give detailed written
notice to Buyer promptly upon learning of the occurrence of any event that
would cause or constitute a breach, or that would have caused a breach had such
event occurred or been known to Seller prior to the date hereof, of any of
Seller's representations or warranties contained in this Agreement.
4.4 Application for FCC Consent. Seller and CCRL shall file an
application with the FCC ("Application") requesting the FCC's written consent
to the assignment of the FCC Authorizations to CCRL and for the consummation of
the transactions contemplated by this Agreement. The Application shall be filed
with the FCC the first business day after consummation of the Triathlon
Closings. The Application shall include a request for the Market Rule Waiver
prepared by CCRL. Seller and Buyer shall use commercially reasonable efforts to
prosecute the Application to a favorable conclusion. Each party shall promptly
provide the other with a copy of any pleading, order or other document served
on it relating to the Application. Seller and CCRL shall furnish all
information required by the FCC and shall be represented at all meetings or
hearings scheduled to consider such Application. The FCC's written consent to
the Application, including a grant of the Market Rule Waiver, is referred to
herein as the "FCC Consent." In the event that Closing occurs hereunder prior
to a Final FCC Consent, then the parties' obligations under this Section 4.4
shall survive the Closing. For purposes of this Agreement, the term "Final"
shall mean that action shall have been taken by the FCC (including action duly
taken by the FCC's staff, pursuant to delegated authority) which shall not have
been reversed, stayed, enjoined, set aside, annulled or suspended; with respect
to which no timely request for stay, petition for rehearing, appeal or
certiorari or sua sponte action of the FCC with comparable effect shall be
pending; and as to which the time for filing any such request, petition,
appeal, certiorari or for the taking of any such sua sponte action by the FCC
shall have expired or otherwise terminated. If the Closing occurs prior to a
Final FCC Consent, and prior to becoming Final the FCC Consent is reversed or
otherwise set aside, and there is a Final order of the FCC (or court of
competent jurisdiction) requiring the re-assignment of the FCC Authorizations
to Seller, then the purchase and sale of the Station Assets shall be rescinded.
In such event, Buyer shall reconvey to Seller the Station Assets, and Seller
shall repay to Buyer the Purchase Price and reassume the contracts and leases
assigned and assumed at Closing. Any such rescission shall be consummated on a
mutually agreeable date within thirty days of such Final order (or, if earlier,
within the time required by such order). In connection therewith, Buyer and
Seller shall each execute such documents (including execution by Buyer of
instruments of conveyance of the Station Assets to Seller and execution by
Seller of instruments of assumption of the contracts and leases assigned and
assumed at Closing) and make such payments (including repayment by Seller to
Buyer of the Purchase Price) as are necessary to give effect to such
rescission.
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4.5 Consents. Seller shall use its reasonable best efforts (which shall
not require the payment of money) to obtain all of the consents noted on
Schedule 2.11 hereto. If Seller does not obtain a consent required to assign a
contract or lease hereunder, Buyer shall not be required to assume such
contract or lease. Marked with an asterisk on Schedule 2.11 are those consents
the receipt of which is a condition precedent to Buyer's obligation to close
under this Agreement (the "Required Consents"). Seller shall obtain the
Required Consents prior to Closing.
4.6 Notice of Proceedings. Seller will promptly notify Buyer in writing
upon: (a) becoming aware of any order or decree or any complaint praying for an
order or decree restraining or enjoining the consummation of this Agreement or
the transactions contemplated hereunder; or (b) receiving any notice from any
governmental department, court, agency or commission of its intention (i) to
institute an investigation into, or institute a suit or proceeding to restrain
or enjoin, the consummation of this Agreement or such transactions, or (ii) to
nullify or render ineffective this Agreement or such transactions if
consummated.
4.7 Consummation of Agreement. Subject to the provisions of Section 10.1
of this Agreement: (a) Seller shall fulfill and perform all conditions and
obligations on its part to be fulfilled and performed under this Agreement, and
cause the transactions contemplated by this Agreement to be fully carried out;
and (b) Seller shall not take any action that would make the consummation of
this Agreement contrary to the Communications Act or the rules, regulations or
policies of the FCC. Seller shall comply with the terms of the Selling Company
APAs, shall maintain the Selling Company APAs in full force and effect, and
shall not terminate, amend, modify, or waive any of Seller's rights or the
Selling Companies' obligations under, the Selling Company APAs, without the
prior written consent of Buyer. Seller shall consummate the Triathlon Closings
no later than May 9, 1997.
4.8 Xxxx-Xxxxx-Xxxxxx. As soon as possible (but in no event later than
ten calendar days after the date of this Agreement), if necessary, Seller shall
prepare and file all documents with the Federal Trade Commission and the United
States Department of Justice as are required to comply with the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (the "Xxxx-Xxxxx-Xxxxxx
Act"), request early termination of the waiting period, and shall thereafter
furnish promptly all materials thereafter requested by any of the regulatory
agencies having jurisdiction over such filings.
4.9 Confidentiality. Any and all information, disclosures, knowledge or
facts regarding Buyer or its business or properties to which Seller is exposed
as a result of the negotiation, preparation or performance of this Agreement
shall be confidential and shall not be divulged, disclosed or communicated to
any other person, firm, corporation or entity, except for Seller's employees,
attorneys, accountants, investment bankers, investors and lenders, and their
respective attorneys, on a need-to-know basis for the purpose of consummating
the transactions contemplated by this Agreement.
4.10 Estoppel Certificates; Title Insurance; Liens. Seller, at Seller's
expense, will obtain and deliver to Buyer (i) written estoppel certificates
(the "Estoppel Certificates") duly
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executed by the lessors under the leases of Real Property described on Schedule
1.1(c), in form and substance satisfactory to Buyer, (ii) any affidavits,
certificates and other documents required by Buyer's title company to issue the
Title Commitments (defined below) and (iii) all UCC, judgment and state and
federal tax lien search reports (showing searches in the name of Seller and the
call letters of each Station) necessary to assure that no Liens are filed or
recorded against the Station Assets in the public records of Arkansas or any
other jurisdiction where the Station Assets are located (the "Lien Search
Reports"). The Estoppel Certificate shall be dated the Closing Date. The Lien
Search Reports shall be delivered within thirty days of the date of this
Agreement and shall be updated as of the Closing.
ARTICLE 5: COVENANTS OF BUYER
Buyer covenants and agrees that from the date hereof until the completion
of the Closing:
5.1 Representations and Warranties. Buyer shall give detailed written
notice to Seller promptly upon learning of the occurrence of any event that
would cause or constitute a breach or would have caused a breach had such event
occurred or been known to Buyer prior to the date hereof, of any of the
representations and warranties of Buyer contained in this Agreement.
5.2 Intentionally Omitted.
5.3 Consummation of Agreement. Subject to the provisions of Section 10.1
of this Agreement, Buyer shall use all reasonable efforts to fulfill and
perform all conditions and obligations on its part to be fulfilled and
performed under this Agreement, and to cause the transactions contemplated by
this Agreement to be fully carried out.
5.4 Notice of Proceedings. Buyer will promptly notify Seller in writing
upon: (a) becoming aware of any order or decree or any complaint praying for an
order or decree restraining or enjoining the consummation of this Agreement or
the transactions contemplated hereunder; (b) receiving any notice from any
governmental department, court, agency or commission of its intention (i) to
institute an investigation into, or institute a suit or proceeding to restrain
or enjoin, the consummation of this Agreement or such transactions, or (ii) to
nullify or render ineffective this Agreement or such transactions if
consummated; or (c) becoming aware of any default under any loan agreement or
of any event that is likely to cause Buyer to enter into any bankruptcy
proceeding.
5.5 Xxxx-Xxxxx-Xxxxxx. As soon as possible (but in no event later than
seven calendar days after the date of this Agreement), if necessary, Buyer
shall prepare and file all documents with the Federal Trade Commission and the
United States Department of Justice as are required to comply with the
Xxxx-Xxxxx-Xxxxxx Act, request early termination of the waiting period thereof,
and shall thereafter furnish promptly all materials thereafter requested by any
of the regulatory agencies having jurisdiction over such filings.
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5.6 Confidentiality. Any and all information, disclosures, knowledge or
facts regarding Seller, the Stations and their operation and properties derived
from or resulting from Buyer's acts or conduct (including without limitation
acts or conduct of Buyer's officers, employees, accountants, counsel, agents,
consultants or representatives, or any of them) under the provisions of Section
4.2 hereof shall be confidential and shall not be divulged, disclosed or
communicated to any other person, firm, corporation or entity, except for
Buyer's attorneys, accountants, investment bankers, investors and lenders, and
their respective attorneys for the purpose of consummating the transactions
contemplated by this Agreement.
ARTICLE 6: CONDITIONS TO THE OBLIGATIONS OF SELLER
The obligations of Seller under this Agreement are, at its option,
subject to the fulfillment of the following conditions prior to or on the
Closing Date:
6.1 Representations, Warranties and Covenants.
(a) Each of the representations and warranties of Buyer contained in
this Agreement shall have been true and correct as of the date when made and
shall be deemed to be made again on and as of the Closing Date and shall then
be true and correct, except to the extent changes are permitted or contemplated
pursuant to this Agreement.
(b) Buyer shall have performed and complied with each and every
covenant and agreement required by this Agreement to be performed or complied
with by it prior to or on the Closing Date.
(c) Buyer shall have furnished Seller with a certificate, dated the
Closing Date and duly executed by a Vice President of Buyer authorized on
behalf of Buyer to give such a certificate, to the effect that the conditions
set forth in Sections 6.1(a) and (b) have been satisfied.
6.2 Proceedings.
(a) Neither Seller nor Buyer shall be subject to any restraining
order or injunction restraining or prohibiting the consummation of the
transactions contemplated hereby.
(b) In the event such a restraining order or injunction is in effect,
this Agreement may not be abandoned by Seller pursuant to this Section 6.2
prior to the Final Closing Date, but the Closing shall be delayed during such
period. This Agreement may be abandoned after the Final Closing Date if such
restraining order or injunction remains in effect.
6.3 FCC Authorization. The assignment of the FCC Authorizations to Buyer
shall have been initially approved.
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6.4 Xxxx-Xxxxx-Xxxxxx. If applicable, the waiting period under the
Xxxx-Xxxxx-Xxxxxx Act shall have expired or been terminated.
6.5 Deliveries. Buyer shall have complied with each and every one of its
obligations set forth in Section 8.2.
ARTICLE 7: CONDITIONS TO THE OBLIGATIONS OF BUYER
The obligations of Buyer under this Agreement are, at its option, subject
to the fulfillment of the following conditions prior to or on the Closing Date:
7.1 Representations, Warranties and Covenants.
(a) Each of the representations and warranties of Seller contained in
this Agreement shall have been true and correct as of the date when made and
shall be deemed to be made again on and as of the Closing Date and shall then
be true and correct except to the extent changes are permitted or contemplated
pursuant to this Agreement.
(b) Seller shall have performed and complied with each and every
covenant and agreement required by this Agreement to be performed or complied
with by it prior to or on the Closing Date.
(c) Seller shall have furnished Buyer with a certificate, dated the
Closing Date and duly executed by the President or Vice President of Seller
authorized on behalf of Seller to give such a certificate, to the effect that
the conditions set forth in Sections 7.1(a) and (b) have been satisfied.
7.2 Proceedings.
(a) Neither Seller nor Buyer shall be subject to any restraining
order or injunction restraining or prohibiting the consummation of the
transactions contemplated hereby.
(b) In the event such a restraining order or injunction is in effect,
this Agreement may not be abandoned by Buyer pursuant to this Section 7.2 prior
to the Final Closing Date, but the Closing shall be delayed during such period.
This Agreement may be abandoned after such date if such restraining order or
injunction remains in effect.
7.3 FCC Authorization. The assignment of the FCC Authorizations to Buyer
shall have been initially approved by the FCC and the Market Rule Waiver shall
have been granted (and if a petition to deny or other objection is filed
against the Application or before Closing a petition for reconsideration or
application for review is filed with respect to the FCC Consent, at Buyer's
option, such FCC Consent shall have become Final), without any conditions
materially adverse to Buyer.
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7.4 Xxxx-Xxxxx-Xxxxxx. If applicable, the waiting period under the
Xxxx-Xxxxx-Xxxxxx Act shall have expired or been terminated.
7.5 Deliveries. Seller shall have complied with each and every one of its
obligations set forth in Section 8.1.
7.6 Required Consents. Seller shall have obtained all of the Required
Consents.
7.7 No Material Change. Seller's business shall not have been materially
and adversely affected as of the Closing Date. No change shall be considered
"materially adverse" if it arises out of or is related to the terms hereof or
the transactions contemplated hereby.
7.8 Title Commitments. Buyer shall have received, at Buyer's expense
(except as provided by section 4.10), commitments from Buyer's title company to
issue to Buyer at standard rates ALTA extended coverage owner's and leasehold
title insurance policies with respect to the owned and leased Real Property
with no exceptions other than Permitted Encumbrances (the "Title Commitments").
ARTICLE 8: ITEMS TO BE DELIVERED AT THE CLOSING
8.1 Deliveries by Seller. At the Closing, Seller shall deliver to Buyer
duly executed by Seller or such other signatory as may be required by the
nature of the document:
(a) bills of sale, certificates of title, endorsements, assignments,
general warranty deeds and other good and sufficient instruments of sale,
conveyance, transfer and assignment, in form and substance satisfactory to
Buyer, sufficient to sell, convey, transfer and assign the FCC Authorizations
to CCRL and the other Station Assets to CCR free and clear of any Liens (other
than Permitted Encumbrances) and to quiet Buyer's title thereto;
(b) the consent of the FCC referred to in Sections 4.4 and 5.2 and
evidence of compliance by Seller with its obligations, and the Required
Consents under Section 4.5 and any other Consents obtained by Seller;
(c) certified copies of resolutions, duly adopted by the board of
directors or shareholders of Seller, which shall be in full force and effect at
the time of the Closing, authorizing the execution, delivery and performance by
Seller of this Agreement, and the consummation of the transactions contemplated
hereby;
(d) the certificate referred to in Section 7.1(c);
(e) an opinion of Seller's counsel in the form and substance
satisfactory to Buyer;
(f) the Estoppel Certificates and the Lien Search Reports; and
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(g) the Noncompetition Agreement duly executed by the Covenantors.
8.2 Deliveries by Buyer. At the Closing, Buyer shall deliver to Seller:
(a) the Purchase Price, which shall be paid in the manner specified
in Section 1.4;
(b) an instrument or instruments of assumption of the Contracts and
Real Property leases to be assumed by CCR pursuant to this Agreement;
(c) certified copies of resolutions, duly adopted by the Boards of
Directors of each Buyer, which shall be in full force and effect at the time of
the Closing, authorizing the execution, delivery and performance by each Buyer
of this Agreement and the consummation of the transactions contemplated hereby;
and
(d) the certificate referred to in Section 6.1(c).
ARTICLE 9: SURVIVAL; INDEMNIFICATION
9.1 Survival. All representations, warranties, covenants and agreements
contained in this Agreement, or in any certificate, agreement, or other
document or instrument, delivered pursuant hereto, shall survive (and not be
affected in any respect by) the Closing, any investigation conducted by any
party hereto and any information which any party may receive.
9.2 Basic Provision.
(a) From and after Closing, subject to Section 9.7, Seller (an
"Indemnifying Party") hereby agrees to indemnify and hold harmless Buyer, the
directors, officers and employees of Buyer and all persons which directly or
indirectly, through one or more intermediaries, control, are controlled by, or
are under common control with Buyer, and their respective successors and
assigns (collectively, the "Buyer Indemnitees") from, against and in respect
of, and to reimburse the Buyer Indemnitees for, the amount of any and all
Deficiencies (as defined in Section 9.3(a)).
(b) From and after Closing, subject to Section 9.7, Buyer (an
"Indemnifying Party") hereby agrees to indemnify and hold harmless Seller, the
directors, officers and employees of Seller and all persons which directly or
indirectly, through one or more intermediaries, control, are controlled by, or
are under common control with Seller, and their respective successors and
assigns (collectively, the "Seller Indemnitees") from, against and in respect
of, and to reimburse the Seller Indemnitees for, the amount of any and all
Deficiencies (as defined in Section 9.3(b)).
9.3 Definition of "Deficiencies".
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(a) As used in this Article 9, the term "Deficiencies" when asserted
by Buyer Indemnitees or arising out of a third party claim against Buyer
Indemnitees shall mean any and all losses, damages, liabilities and claims
sustained by the Buyer Indemnitees and arising out of, based upon or resulting
from:
(i) any misrepresentation, breach of warranty, or any
non-fulfillment of any representation, warranty, covenant, obligation or
agreement on the part of Seller contained in or made pursuant to this
Agreement;
(ii) any error contained in any statement, report, certificate
or other document or instrument delivered by Seller pursuant to this Agreement;
(iii) any failure by Seller to pay or perform any obligation or
liability relating to the Stations that is not expressly assumed by Buyer
pursuant to the provisions of this Agreement;
(iv) any litigation, proceeding or claim by any third party
relating to the business or operations of the Stations prior to the Closing
Date no matter when brought or made;
(v) any severance pay or other payment required to be paid with
respect to any employee of the Stations; and
(vi) any and all acts, suits, proceedings, demands, assessments
and judgments, and all fees, costs and expenses of any kind, related or
incident to any of the foregoing (including, without limitation, any and all
Legal Expenses (as defined in Section 9.6 below)).
(b) As used in this Article 9, the term "Deficiencies" when asserted
by Seller Indemnitees or arising out of a third party claim against Seller
Indemnitees shall mean any and all losses, damages, liabilities and claims
sustained by the Seller Indemnitees and arising out of, based upon or resulting
from:
(i) any misrepresentation, breach of warranty, or any
non-fulfillment of any representation, warranty, covenant, obligation or
agreement on the part of Buyer contained in or made pursuant to this Agreement;
(ii) any error contained in any statement, report, certificate
or other document or instrument delivered by Buyer pursuant to this Agreement;
(iii) any failure by Buyer to pay or perform any obligation or
liability relating to the Stations that is expressly assumed by Buyer pursuant
to the provisions of this Agreement;
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(iv) any litigation, proceeding or claim by any third party to
the extent relating to the business or operations of the Stations after the
Closing Date; and
(v) any and all acts, suits, proceedings, demands, assessments
and judgments, and all fees, costs and expenses of any kind, related or
incident to any of the foregoing (including, without limitation, any and all
Legal Expenses (as defined in Section 9.6 below)).
9.4 Procedures.
(a) In the event that any claim shall be asserted by any third party
against the Buyer Indemnitees or Seller Indemnitees (Buyer Indemnitees or
Seller Indemnitees, as the case may be, hereinafter, the "Indemnitees"), which,
if sustained, would result in a Deficiency, then the Indemnitees, as promptly
as practicable after learning of such claim, shall notify the Indemnifying
Party of such claim, and shall extend to the Indemnifying Party a reasonable
opportunity to defend against such claim, at the Indemnifying Party's sole
expense and through legal counsel acceptable to the Indemnitees, provided that
the Indemnifying Party proceeds in good faith, expeditiously and diligently.
The Indemnitees shall, at their option and expense, have the right to
participate in any defense undertaken by the Indemnifying Party with legal
counsel of their own selection. No settlement or compromise of any claim which
may result in a Deficiency may be made by the Indemnifying Party without the
prior written consent of the Indemnitees unless: (A) prior to such settlement
or compromise the Indemnifying Party acknowledges in writing its obligation to
pay in full the amount of the settlement or compromise and all associated
expenses; and (B) the Indemnitees are furnished with a full release.
(b) In the event that the Indemnitees assert the existence of any
Deficiency against the Indemnifying Party, they shall give written notice to
the Indemnifying Party of the nature and amount of the Deficiency asserted. If
the Indemnifying Party within a period of thirty (30) days after the giving of
the Indemnitees' notice, shall not give written notice to the Indemnitees
announcing its intent to contest such assertion of the Indemnitees (such notice
by the Indemnifying Party being hereinafter referred to as the "Contest
Notice"), such assertion of the Indemnitees shall be deemed accepted and the
amount of the Deficiency shall be deemed established. In the event, however,
that a Contest Notice is given to the Indemnitees within said 30-day period,
then the contested assertion of a Deficiency shall be settled by arbitration to
be held in San Antonio, Texas in accordance with the Commercial Rules of the
American Arbitration Association then existing. The determination of the
arbitrator shall be delivered in writing to the Indemnifying Party and the
Indemnitees and shall be final, binding and conclusive upon all of the parties
hereto, and the amount of the Deficiency, if any, determined to exist, shall be
deemed established.
(c) The Indemnitees and the Indemnifying Party may agree in writing,
at any time, as to the existence and amount of a Deficiency, and, upon the
execution of such agreement such Deficiency shall be deemed established.
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9.5 Payment of Deficiencies. The Indemnifying Party hereby agrees to pay
the amount of established Deficiencies within 15 days after the establishment
thereof. The amount of established Deficiencies shall be paid in cash. At the
option of the Indemnitees, the Indemnitees may offset any Deficiency or any
portion thereof that has not been paid by the Indemnifying Party to the
Indemnitees against any obligation the Indemnitees, or any of them, may have to
the Indemnifying Party.
9.6 Legal Expenses. As used in this Article 9, the term "Legal Expenses"
shall mean any and all fees (whether of attorneys, accountants or other
professionals), costs and expenses of any kind reasonably incurred by any
person identified herein and its counsel in investigating, preparing for,
defending against, or providing evidence, producing documents or taking other
action with respect to any threatened or asserted claim.
9.7 Limitations.
(a) The indemnification obligations of Seller under Section 9.2(a)
shall not be effective until the aggregate amount of all Deficiencies (as
defined in Section 9.3(a)) exceeds $30,000, upon which all Deficiencies (as
defined in Section 9.3(a)) shall be subject to indemnification thereunder.
(b) The indemnification obligations of Buyer under Section 9.2(b)
shall not be effective until the aggregate amount of all Deficiencies (as
defined in Section 9.3(b)) exceeds $30,000, upon which all Deficiencies (as
defined in Section 9.3(a)) shall be subject to indemnification thereunder.
ARTICLE 10: MISCELLANEOUS
10.1 Termination. This Agreement may be terminated at any time prior to
Closing: (a) by the mutual consent of Seller and Buyer; (b) by any party hereto
if the FCC has denied the approvals contemplated by this Agreement in an order
which has become Final; (c) by Buyer under the provisions of Section 2.14
(regarding Environmental Matters); (d) by Buyer as provided in Section 10.8
(Broadcast Transmission Interruption); (e) by Buyer as provided in Section 10.9
(Risk of Loss); (f) by Buyer or Seller if the Closing has not taken place by
the Final Closing Date; (g) by Buyer, if on the Closing Date Seller has failed
to satisfy the conditions set forth in Section 7.1, 7.5, 7.6, 7.7 or 7.8; (h)
by Buyer if Seller has failed to cure a material breach of any of its
representations, warranties or covenants under this Agreement within fifteen
(15) calendar days after it receives notice from Buyer of such breach; (i) by
Seller, if on the Closing Date Buyer has failed to satisfy the conditions set
forth in Section 6.1 or 6.5; or (j) by Seller if Buyer has failed to cure a
material breach of any of its representations, warranties or covenants under
this Agreement within fifteen (15) calendar days after it receives notice from
Seller of such breach. A termination pursuant to this Section 10.1 shall not
relieve any party of any liability it would otherwise have for a breach of this
Agreement.
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10.2 Specific Performance. In the event of a breach or threatened breach
by Seller of any representation, warranty, covenant or agreement under this
Agreement, at Buyer's election, in addition to any other remedy available to
it, Buyer shall be entitled to an injunction restraining any such breach or
threatened breach and, subject to obtaining any requisite approval of the FCC,
to enforcement of this Agreement by a decree of specific performance requiring
Seller to fulfill its obligations under this Agreement, in each case without
the necessity of showing economic loss or other actual damage and without any
bond or other security being required.
10.3 Expenses. Each party hereto shall bear all of its expenses incurred
in connection with the transactions contemplated by this Agreement, including
without limitation, accounting and legal fees incurred in connection herewith;
provided, however, that: (i) Seller and Buyer shall each pay one-half of the
FCC filing fees required to be paid in connection with the Application referred
to in Sections 4.4 and 5.2 hereof; (ii) Seller shall be exclusively responsible
for, and Buyer shall not have any liability or responsibility for any sales or
transfer taxes (including without limitation any real estate transfer taxes),
arising from the transfer of the Station Assets to Buyer; and (iii) Seller and
Buyer shall each pay one-half of any Xxxx-Xxxxx-Xxxxxx filing fees, if
applicable.
10.4 Bulk Sales Laws. Seller agrees to indemnify and hold Buyer harmless,
in the manner and to the extent provided in Article 9 above, from all claims
made by creditors with respect to non-compliance with any bulk sales law.
10.5 Remedies Cumulative. The remedies provided in this Agreement shall
be cumulative and shall not preclude the assertion by any party hereto of any
other rights or the seeking of any other remedies against the other party
hereto.
10.6 Further Assurances. From time to time prior to, on and after the
Closing Date, each party hereto will execute all such instruments and take all
such actions as any other party shall reasonably request, without payment of
further consideration, in connection with carrying out and effectuating the
intent and purpose hereof and all transactions contemplated by this Agreement,
including without limitation the execution and delivery of any and all
confirmatory and other instruments in addition to those to be delivered on the
Closing Date, and any and all actions which may reasonably be necessary to
complete the transactions contemplated hereby. The parties shall cooperate
fully with each other and with their respective counsel and accountants in
connection with any steps required to be taken as part of their respective
obligations under this Agreement.
10.7 Public Announcements.
(a) Prior to the Closing Date, no party shall, without the approval
of the other party hereto, make any press release or other public announcement
concerning the transactions contemplated by this Agreement, except (i) to
announce it has been entered into, and (ii) as and to the extent that such
party shall be so obligated by law, in which case such
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party shall give advance notice to the other party and the parties shall use
their best efforts to cause a mutually agreeable release or announcement to be
issued.
(b) Notwithstanding the foregoing, the parties acknowledge that the
rules and regulations of the FCC require that public notice of the transactions
contemplated by this Agreement be made after the Application (referred to in
Sections 4.4 and 5.2) has been filed with the FCC. The form and substance of
such public notice, to the extent not dictated by the Communications Act or the
rules and regulations of the FCC, shall be mutually agreed upon by Seller and
Buyer.
10.8 Broadcast Transmission Interruption. If before the Closing the
regular broadcast transmission of any Station in the normal and usual manner is
interrupted for a period of two consecutive hours or more, Seller shall give
the prompt written notice thereof to Buyer. Buyer shall then have the right, by
giving written notice to Seller, to postpone (and if necessary re-postpone) the
Closing to a date that is fifteen (15) days after the end of any such
interruption. If regular broadcast transmission in the normal and usual manner
is interrupted for a continuous period of eighteen (18) hours or more at any
time prior to Closing Date, then (a) Seller immediately shall give written
notice thereof to Buyer and (b) Buyer shall have the right, by giving written
notice to Seller, to (i) terminate this Agreement, or (ii) postpone the Closing
as provided above.
10.9 Risk of Loss. The risk of loss, damage or destruction to any of the
Station Assets shall be borne by Seller at all times up to 12:01 a.m. local
time on the Closing Date, and it shall be the responsibility of Seller to
repair or cause to be repaired and to restore the property to its condition
prior to any such loss, damage, or destruction. In the event of any such loss,
damage, or destruction, the proceeds of any claim for any loss, payable under
any insurance policy with respect thereto, shall be used to repair, replace, or
restore any such property to its former condition, subject to the conditions
stated below. In the event of any loss or damage to any of the Station Assets,
Seller shall notify Buyer thereof in writing immediately. Such notice shall
specify with particularity the loss or damage incurred, the cause thereof (if
known or reasonably ascertainable), and the insurance coverage. In the event
that the property is not completely repaired, replaced or restored on or before
the scheduled Closing Date, Buyer at its option: (a) may elect to postpone
Closing until such time as the property has been completely repaired, replaced
or restored (and, if necessary, Seller shall join Buyer in requesting from the
FCC any extensions of time in which to consummate the Closing that may be
required in order to complete such repairs); or (b) may elect to consummate the
Closing and accept the property in its then condition, in which event Seller
shall pay to Buyer all proceeds of insurance and assign to Buyer the right to
any unpaid proceeds; or (c) terminate this Agreement.
10.10 Arbitration. In case any disagreement shall arise on or before the
Closing Date between the parties hereto in relation to this Agreement, whether
as to the construction or operation hereof or the respective rights and
liabilities hereunder, such disagreement shall be decided by arbitration.
Arbitration shall be initiated by either party giving written notice to
arbitrate to the other party, stating the question to be arbitrated and the
name of the arbitrator
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selected by that party. Within five (5) days of the date of said notice to
arbitrate certificate, the other party shall select and give written notice of
its arbitrator to the initiating party. The two arbitrators so selected shall
select a third arbitrator and give written notice within five (5) days after
the third arbitrator is chosen. The arbitration shall be conducted solely by
the third arbitrator, who shall hear evidence and make an award within twenty
(20) days after the notice of selection of the third arbitrator is given to the
parties, which award, when signed by the third arbitrator, shall be final. If
either party shall refuse or neglect to appoint an arbitrator within five (5)
days after the other shall have appointed an arbitrator and given written
notice to arbitrate to the other, requiring such party to appoint an
arbitrator, then the arbitrator so appointed by the first party shall have
power to proceed to arbitrate and determine the matters of disagreement as if
he were an arbitrator appointed by both the parties hereto for that purpose,
and his award in writing signed by him shall be final; provided that such award
shall be made within fifteen (15) days after such refusal or neglect of the
other party to appoint an arbitrator. The party against which such award is
made shall pay all costs and expenses of the arbitration. The Closing Date
shall be automatically postponed during any such arbitration, but not beyond
the Final Closing Date. Nothing herein shall prevent Buyer from obtaining an
injunction, decree of specific performance or other equitable relief from any
court.
ARTICLE 11: GENERAL PROVISIONS
11.1 Successors and Assigns. Except as otherwise expressly provided
herein, this Agreement shall be binding upon and inure to the benefit of the
parties hereto, and their respective representatives, successors and assigns.
Seller may not assign any of its rights or delegate any of its duties hereunder
without the prior written consent of Buyer, and any such attempted assignment
or delegation without such consent shall be void. Buyer may assign its rights
and obligations hereunder, in whole or in part, without Seller's consent.
11.2 Amendments; Waivers. The terms, covenants, representations,
warranties and conditions of this Agreement may be changed, amended, modified,
waived, or terminated only by a written instrument executed by the party
waiving compliance. The failure of any party at any time or times to require
performance of any provision of this Agreement shall in no manner affect the
right of such party at a later date to enforce the same. No waiver by any party
of any condition or the breach of any provision, term, covenant, representation
or warranty contained in this Agreement, whether by conduct or otherwise, in
any one or more instances shall be deemed to be or construed as a further or
continuing waiver of any such condition or of the breach of any other
provision, term, covenant, representation or warranty of this Agreement.
11.3 Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing (which shall
include notice by telex or facsimile transmission) and shall be deemed to have
been duly made and received when personally served, or when delivered by
Federal Express or a similar overnight courier service, expenses prepaid, or,
if sent by telex, graphic scanning or other facsimile communications equipment,
delivered by such equipment, addressed as set forth below:
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(a) if to Seller, then to: Triathlon Broadcasting of Little Rock, Inc.
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telecopier No.: (000) 000-0000
(b) if to Buyer, then to: Clear Channel Radio, Inc.
000 Xxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxx
Telecopier No.: (000) 000-0000
with a copy (which shall not
constitute notice) to: Wiley, Rein & Fielding
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
Any party may alter the address to which communications are to be sent by
giving notice of such change of address in conformity with the provisions of
this Section providing for the giving of notice.
11.4 Captions. The captions of Articles and Sections of this Agreement
are for convenience only and shall not control or affect the meaning or
construction of any of the provisions of this Agreement.
11.5 Governing Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement shall be governed by and
construed in accordance with the laws of the State of Texas, without giving
effect to principles of conflicts of laws.
11.6 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof, and supersedes all prior agreements, understandings, inducements
or conditions, express or implied, oral or written, relating to the subject
matter hereof; including without limitation the letter of intent dated February
7, 1997 between CCR and Triathlon Broadcasting. The express terms hereof
control and supersede any course of performance and/or usage of trade
inconsistent with any of the terms hereof. This Agreement has been prepared by
all of the parties hereto, and no inference of ambiguity against the drafter of
a document therefore applies against any party hereto.
11.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This
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Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of the parties
reflected hereon as the signatories.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURE PAGE TO KSSN/KMVK/XXXX ASSET PURCHASE AGREEMENT
---------------------------------------------------------
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
BUYER: CLEAR CHANNEL RADIO, INC.
CLEAR CHANNEL RADIO LICENSES, INC.
By:
---------------------------
Name:
Title:
SELLER: TRIATHLON BROADCASTING OF
LITTLE ROCK, INC.
By:
---------------------------
Name:
Title:
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EXHIBITS & SCHEDULES
Licenses and Authorizations.....................................SCHEDULE 1.1(a)
Tangible Personal Property......................................SCHEDULE 1.1(b)
Real Property...................................................SCHEDULE 1.1(c)
Contracts.......................................................SCHEDULE 1.1(e)
Intangible Property.............................................SCHEDULE 1.1(f)
Financial Statements...............................................SCHEDULE 2.6
Consents..........................................................SCHEDULE 2.11
Insurance Policies................................................SCHEDULE 2.16
Employment Matters................................................SCHEDULE 2.17
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