EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT") is made as of the 17th
day of August, 2004, by and among STYLES MEDIA GROUP, LLC, a Florida limited
liability company ("PURCHASER"), and SPANISH BROADCASTING SYSTEM SOUTHWEST,
INC., a Delaware corporation ("SELLER").
WHEREAS, the following wholly-owned, single-purpose subsidiaries of Seller
(collectively the "SELLER AFFILIATES") are the licensees of the following radio
broadcast stations: KZAB Licensing, Inc., a Delaware corporation, licensee of
Radio Xxxxxxx XXXX(XX), Xxxxxxx Xxxxx, Xxxxxxxxxx; and KZBA Licensing, Inc., a
Delaware corporation, licensee of Radio Station KZBA(FM), Ontario, California
(collectively the "STATIONS").
WHEREAS, Seller owns the assets which are used in the operation of the
Stations;
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, certain of the radio station properties and assets
relating to the Stations as described herein under the terms and conditions
herein set forth; and
WHEREAS, Purchaser intends to assign its right, title and interest in each
of the Stations to separate Affiliates and Seller agrees to such assignment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS AND REFERENCES
Capitalized terms used herein without definition shall have the respective
meanings assigned thereto in Annex I attached hereto and incorporated herein for
all purposes of this Agreement (such definitions to be equally applicable to
both the singular and plural forms of the terms defined). Unless otherwise
specified, all references herein to "Articles," "Sections," "Exhibits" and
"Schedules" are to Articles, Sections, Exhibits or Schedules of this Agreement.
The word "include," "includes" and "including" shall be deemed to be followed by
the phrase "without limitation." The terms "hereof," "herein," and "herewith"
and words of similar import shall, unless otherwise stated, be construed to
refer to this Agreement and not to any particular provision of this Agreement.
The word "or" shall not be exclusive and provisions shall apply, when
appropriate, to successive events and transactions.
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ARTICLE 2.
PURCHASE AND SALE
2.1 PURCHASE AND SALE OF ASSETS.
Subject to the conditions set forth in this Agreement, at the Closing,
Seller shall assign, transfer, convey and deliver to Purchaser, and Purchaser
shall purchase and accept from Seller, all right, title and interest of Seller
in and to the following assets relating to the Stations (the "PURCHASED
ASSETS"), free and clear of all Liens (other than Permitted Liens):
2.1.1. FCC LICENSES.
All licenses, construction permits or authorizations issued by or
pending before the FCC for use in the operation of the Stations including,
but not limited to, those listed on Schedule 2.1.1 attached hereto,
together with any and all renewals, extensions and modifications thereof
and any pending applications therefore (the "FCC LICENSES").
2.1.2. LEASED TRANSMITTER SITES.
The leasehold interests of Seller at each of the sites described on
Schedule 2.1.3 hereto (the "LEASED TRANSMITTER SITES" and together with
the Owned Transmitter Site, the "TRANSMITTER SITES").
2.1.3. TRANSMISSION EQUIPMENT.
The broadcast towers, antennas, main and back-up transmitters and
generators, STLs and other tangible personal property owned by Seller and
located, or otherwise held for use, at the Transmitter Sites including,
but not limited to, the transmission equipment listed on Schedule 2.1.3
hereto, together with replacements thereof and additions thereto made
between the date hereof and the Closing (the "TRANSMISSION EQUIPMENT").
2.1.4. STUDIO SITE.
The leasehold interest of Seller at the site described on Schedule
2.1.4 hereto together with replacements thereof and additions thereto made
between the date hereof and the Closing (the "STUDIO SITE").
2.1.5. STUDIO EQUIPMENT.
All the tangible personal property owned by Seller and used, useful
or held for use in the operation of the Stations, including, but not
limited to, the studio equipment listed Schedule 2.1.5 hereto together
with replacements thereof and additions thereto made between the date
hereof and the Closing (the "STUDIO EQUIPMENT").
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2.1.6. CALL SIGNS, PROMOTIONAL MATERIALS AND INTANGIBLE PROPERTY.
All of Sellers' rights in the Stations' call letters, copyrights,
trademarks, tradenames, domain names, slogans, logos, service marks,
computer software (if any), magnetic media, data processing files, systems
and programs, business lists, sales and operating plans, telephone
numbers, post office boxes, E-mail addresses, internet addresses, all
goodwill of the Stations and other intangible property rights used or
useful in the operation of the Stations, including but not limited to the
intangible property identified on Schedule 2.1.6 hereof.
2.1.7. BUSINESS RECORDS.
Unless as may be otherwise required by law, the books, files and
records related to the Purchased Assets, such as property tax records,
equipment instruction material and warranties, logs, all materials
maintained in the FCC public file relating to the Stations, technical
data, political advertising records and all other records, correspondence
with and documents pertaining to the operation of the station and
governmental authorities and similar third parties (the "BUSINESS
RECORDS").
2.1.8. EQUIPMENT WARRANTIES.
The manufacturer and vendor warranties, if any, on the Transmission
Equipment and Studio Equipment as are set forth in Schedule 2.1.8 hereto
(the "Equipment Warranties").
2.2 EXCLUDED ASSETS.
Notwithstanding the terms of Section 2.1, Seller shall not assign,
transfer, convey or deliver to Purchaser, and Purchaser shall not purchase and
accept, and the Purchased Assets shall not include, any of Seller's right, title
and interest in and to any of the following assets (the "EXCLUDED ASSETS"):
2.2.1. CASH.
All cash and cash equivalents of Seller or the Stations on hand on
the day immediately preceding the Closing Date.
2.2.2. RECEIVABLES.
Any accounts receivable, notes receivable or other receivables of
Seller (including Tax refunds).
2.2.3. DEPOSITS AND PREPAID EXPENSES.
All deposits and prepaid expenses of the Stations.
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2.2.4. INTELLECTUAL PROPERTY.
That intellectual property of Seller set forth on Schedule 2.2.4
hereof.
2.2.5. CERTAIN BOOKS AND RECORDS.
Seller's corporate seal, minute books, charter documents, corporate
stock record books and other books and records that pertain to the
organization of Seller.
2.2.6. SECURITIES.
All securities of any kind owned by Seller.
2.2.7 INSURANCE.
All insurance contracts or proceeds thereof.
2.2.8 TIME SALES AGREEMENTS.
All time sales agreements or barter rights of the Stations.
2.2.9 PRE-CLOSING CLAIMS.
All claims arising out of acts occurring prior to the Closing Date,
or claims that relate to the period prior to the Closing Date.
2.2.10. RIGHTS UNDER THIS AGREEMENT.
All of the rights of Seller under or pursuant to this Agreement.
2.2.11. EMPLOYEE BENEFIT PLANS.
All pension, profit sharing, retirement, bonus, medical, dental,
life, accident insurance, disability, executive or deferred compensation,
and other similar fringe or employee benefit plans.
2.3 ASSUMED LEASES.
At the Closing, Purchaser shall assume the obligations of Seller for
periods on and after the Closing Date under the leases set forth on Schedule
2.1.2, Schedule 2.1.4 and Schedule 2.3 hereof (the "ASSUMED LEASES"), and
Purchaser agrees to pay and perform the Assumed Leases from and after the
Closing Date.
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2.4 EXCLUDED LIABILITIES.
Except for the Assumed Leases, Purchaser shall not assume or be liable for
and Seller shall retain, pay, perform and discharge when due, and indemnify and
hold Purchaser harmless in accordance with Article 13 from and against, any
other Liabilities of Seller (the "EXCLUDED LIABILITIES"), including the
following Liabilities:
2.4.1 All Taxes of Seller or attributable to the Business or the Stations
Assets for the period prior to the Closing Date.
2.4.2. All Taxes of Seller attributable to the Business or the Stations
Assets resulting from the transactions contemplated hereby (except as provided
in Section 3.6.2).
2.4.3. All Liabilities relating to or arising out of Tradeout Agreements
and all other Excluded Assets.
2.4.4. Any Liabilities of Seller under this Agreement.
2.4.5. Any Liabilities arising out of any severance policy of Seller or
any severance agreement or similar arrangement between Seller and any employee
of Seller that also results or arises from the transactions contemplated by this
Agreement.
2.4.6. Any Liabilities for severance or any similar obligation of Seller
arising by operation of Law that results or arises from the transactions
contemplated by this Agreement.
2.4.7. Any Liabilities arising out of vacation benefits for any employee
of Seller that accrued or were earned prior to the Closing Date.
2.4.8. All Liabilities arising out of or relating to the ownership of the
Stations Assets or operation of the Stations, Purchased Assets or the Stations
prior to the Closing Date.
2.4.9. All unpaid FCC regulatory fees of Seller for the period prior to
the Closing Date.
ARTICLE 3.
PURCHASE PRICE; CLOSING
3.1 PURCHASE PRICE.
The purchase price for the Purchased Assets shall be One Hundred Twenty
Million Dollars ($120,000,000.00) (the "PURCHASE PRICE"). Purchaser shall pay
the Purchase Price in cash to Seller at Closing by wire transfer of immediately
available funds to an account or accounts identified by Seller in writing prior
to Closing. The amount paid by Purchaser at closing shall be reduced by the
amount of the Deposit, provided that at or before the Closing the Escrow Agent
shall wire transfer to Seller the full amount of the Deposit.
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3.2 ESCROW DEPOSIT.
Upon the execution of the Escrow Agreement attached hereto as Exhibit A,
concurrent with the execution of this Agreement, Purchaser, by bank wire
transfer of immediately available funds, shall deposit in escrow with [a
commercial bank], acting as escrow agent on the parties' behalf ("ESCROW
AGENT"), a deposit ("DEPOSIT") in the amount of Six Million Dollars
($6,000,000.00). The Deposit shall be security for the consummation of the sale
of the Purchased Assets and shall be held in escrow pursuant to a separate
escrow agreement ("ESCROW AGREEMENT") entered into between Seller, Purchaser and
the Escrow Agent in the form of Exhibit A hereto. In the event of any conflict
between this Agreement and the Escrow Agreement, the terms of the Escrow
Agreement shall control. The Deposit shall be invested and disbursed in
accordance with the terms of the Escrow Agreement.
3.3 TIME OF CLOSING.
The closing for the sale and purchase of the Purchased Assets (the
"CLOSING") shall be conducted via electronic mail, with original signatures to
follow via overnight courier, or in such other manner as shall be mutually
agreed in writing upon by Seller and Purchaser. Subject to the satisfaction of
the conditions precedent set forth in Article 8 and Article 9 of this Agreement,
the Closing shall occur on the date (the "CLOSING DATE") that is the fifth (5th)
Business Day after the latter of the date on which the FCC Assignment Order for
each of the Stations shall have become a final Order. The Closing shall be
deemed to be effective as of 12:01 a.m. on the Closing Date. In the event that
the Closing Date under this Section 3.3 would otherwise be a date prior to March
31, 2004, Purchaser may, at its sole option, by written notice to Seller, elect
to extend the Closing Date to a date that is designated by Purchaser in its
notice to Seller, provided that said date shall not be later than March 31,
2005. If Purchaser so elects to extend the Closing Date, the parties agree that
as a condition precedent to the Closing Date being extended, they shall issue
joint written instructions to the Escrow Agent instructing the Escrow Agent to
disburse to Seller the full amount of the Deposit. Said amount shall be credited
to Purchaser toward the Purchase Price as of the extended Closing Date. If
Purchaser fails to deliver such notice and fails to consummate the transaction
as set forth above, the Agreement shall terminate and the Escrow Deposit shall
be disbursed to Seller.
3.4 CLOSING PROCEDURES.
At the Closing, Seller shall deliver to the appropriate Purchaser
Affiliate (the "PURCHASER AFFILIATE"), as directed by Purchaser, all Ancillary
Agreements in the name of the appropriate Purchaser Affiliate. Against such
delivery, Purchaser shall, or cause Purchaser's Affiliates to (a) pay the
Purchase Price to Seller in accordance with Section 3.1 above and (b) execute
and deliver an assumption agreement with respect to the Assumed Leases in a form
reasonably acceptable to both Seller and Purchaser. Each party will cause to be
prepared, executed and delivered all other documents required to be delivered by
such party pursuant to this Agreement and all other appropriate and customary
documents as another party or its counsel may
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reasonably request for the purpose of consummating the transactions contemplated
by this Agreement. All actions taken at the Closing shall be deemed to have been
taken simultaneously at the time the last of any such actions is taken or
completed. The Purchaser shall remain primarily liable as a guarantor for all
Purchaser Affiliates.
3.5 ALLOCATION OF PURCHASE PRICE.
3.5.1 Seller and Purchaser each represent, warrant, covenant, and agree
with each other that the Purchase Price shall be allocated among the classes of
Purchased Assets for each Station for all purposes (including financial,
accounting and Tax purposes), as agreed by the parties within ninety (90) days
after the Closing Date. If Seller and Purchaser are unable to agree on such
allocation within ninety (90) days following execution of this Agreement, Seller
and Purchaser agree to retain a nationally recognized appraisal firm experienced
in valuing radio broadcast properties which is mutually acceptable to Seller and
Purchaser (the "Appraisal Firm") to appraise the classes of Purchased Assets of
each Station. The Appraisal Firm shall be instructed to perform an appraisal of
the classes of Purchased Assets of each Station and to deliver a report to
Seller and Purchaser as soon as reasonably practicable. The fees, costs and
expenses of the Appraisal Firm, whether or not the transactions contemplated
hereby are consummated, shall be paid and borne equally by Seller and Purchaser.
If the agreed upon allocation of the purchase price is disputed by any
Governmental Authority, the party receiving notice of such dispute shall
promptly notify the other party hereto concerning the existence and resolution
of such dispute. Notwithstanding the terms of this Section 3.5.1, the Purchase
Price for the Owned Transmitter Site must be separately allocated on or prior to
the Closing Date.
3.5.2 Seller and Purchaser agree, pursuant to Section 1060 of the Code,
that the Purchase Price shall be allocated in accordance with Section 3.5.1, and
that all Tax returns and reports shall be filed consistent with such allocation.
Notwithstanding any other provision of this Agreement, the provisions of this
Section 3.5. shall survive the Closing Date without limitation.
3.6 PRORATIONS.
3.6.1. All items of income and expense arising from the operation of the
Stations with respect to the Purchased Assets and the Assumed Leases on or
before the close of business on the Closing Date shall be for the account of
Seller and thereafter shall be for the account of Purchaser. Proration of the
items described below between Seller and Purchaser shall be effective as of
12:00 midnight, local time, on the Closing Date and shall occur as follows with
respect to those rights, liabilities and obligations of Seller transferred to
and assumed by Purchaser hereunder.
3.6.2. Liability for state and local Taxes assessed on the Purchased
Assets payable with respect to the tax year in which the Closing Date falls
shall each be prorated as between Seller and Purchaser on the basis of the
number of days of the Tax year elapsed to and including the Closing Date.
3.6.3. The FCC annual regulatory fees for the fiscal year October 1, 2004
through
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September 20, 2005 for the Stations which are payable in August, 2005 shall be
assumed to be the same as the annual regulatory fees paid in August, 2004 and
shall be prorated at Closing as of the Closing Date.
3.6.4. Prepaid items, deposits, credits and accruals such as water,
electricity, telephone, other utility and service charges, lease expenses,
license fees (if any) and payments under any contracts or utility services to be
assumed by Purchaser shall be prorated between Seller and Purchaser on the basis
of the period of time to which such liabilities, prepaid items and accruals
apply.
3.6.5. All prorations shall be made and paid insofar as feasible on the
Closing Date and shall be made in accordance with generally accepted accounting
principles; any prorations not made on such date shall be made as soon as
practicable (not to exceed ninety (90) days) thereafter. As soon as practical
within said ninety (90) day period, Purchaser shall deliver to Seller
Purchaser's certificate setting forth as of the Closing Date all adjustments to
be made as provided in this Article 3. Purchaser shall provide Seller or
Seller's representatives access to copies of all books and records as Seller may
reasonably request need to verify such adjustments. Purchaser's certificate
shall be final and conclusive unless objected to by Seller in writing within
thirty (30) days after delivery. Seller and Purchaser shall attempt jointly to
reach agreement as to the amount of the adjustments to be made hereunder within
sixty (60) days after receipt by Purchaser of such written objection by Seller,
which agreement, if achieved, shall be binding upon all parties to this
Agreement and not subject to dispute or review. In the event of a disagreement
between Purchaser and Seller with respect to the accounting to be made
hereunder, the parties agree that a public accounting firm chosen jointly by
Purchaser and Seller shall be the final arbiter of such disagreement. The cost
of such accounting firm shall be shared equally by the parties. Any amounts due
Purchaser or Seller for the adjustments provided for herein shall be paid within
ten (10) calendar days after final determination.
ARTICLE 4
USE OF STUDIO
For the period not to exceed six (6) months following the commencement of
a Time Brokerage Agreement between the parties in the form attached hereto as
EXHIBIT B, Seller shall grant to Purchaser a license to use such portions of the
studio located at 00000 Xxxx Xxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxxxx, as it deems
appropriate for the operation of the Stations. During said license period,
Purchaser shall use commercially reasonable efforts to relocate studio
facilities for the Stations. Such license shall be substantially in the form of
the Studio Use License Agreement attached as EXHIBIT D hereto.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby covenants, represents and warrants to Purchaser that the
following are true and correct as of the date of this Agreement and will be true
and correct at Closing, unless expressly stated otherwise, to wit:
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5.1 ORGANIZATION; GOOD STANDING.
Seller is a Delaware corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware, and duly authorized to
transact business in the State of California. Seller has all requisite power and
authority to own and lease its properties and carry on its business as currently
conducted. Each Seller Affiliate is duly organized, validly existing and in good
standing under the laws of the State of Delaware. Each Seller Affiliate has all
requisite power and authority to be the licensee of the Station of which it is
the Licensee.
5.2 PERFORMANCE OF SELLER AFFILIATES.
Each Seller Affiliate shall perform such acts and duties as are required
to consummate this transaction.
5.3 DUE AUTHORIZATION.
Subject to the FCC Assignment Order, Seller has full power and authority
to enter into and perform this Agreement to carry out the transactions
contemplated hereby. Seller has taken all necessary action to approve the
execution and delivery of this Agreement and the transactions contemplated
hereby. Evidence of such corporate action reasonably acceptable to Purchaser
shall be delivered to Purchaser at Closing. This Agreement constitutes the
legal, valid and binding obligation of Seller, enforceable against it in
accordance with its terms, except as may be limited by the availability of
equitable remedies or by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally.
5.4 EXECUTION AND DELIVERY.
Neither the execution and delivery by Seller of this Agreement or the
Ancillary Agreements nor the consummation by Seller of the transactions
contemplated hereby or thereby will: (a) conflict with or result in a breach of
any provisions of Seller's organizational documents, (b) subject to the FCC
Assignment Order, violate any Law or Order of any court or Governmental
Authority; or (c) violate or conflict with or constitute a default under (or
give rise to any right of termination, cancellation or acceleration under), or
result in the creation of any Lien on any of the Purchased Assets pursuant to,
any agreement, indenture, mortgage or other instrument to which Seller is a
party or by which it or its assets may be bound or affected.
5.5 GOVERNMENTAL AND OTHER APPROVALS.
No approval, authorization, consent, order or other action of, or filing
with, any court or Governmental Authority or any person or entity is required in
connection with the execution and delivery by Seller of this Agreement or the
Ancillary Agreements or the consummation of the transactions contemplated hereby
or thereby, other than the FCC and HSR Act.
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5.6 TITLE TO PERSONAL PROPERTY.
Seller is the sole and exclusive legal owner of all right, title and
interest in, and has good and marketable title to, all of the Purchased Assets
constituting personal property, free and clear of all Liens except (a) Permitted
Liens, or (b) Liens which will be released on or prior to the Closing. Subject
to Seller's right to dispose of any properties, equipment and assets in the
ordinary course of business, on the Closing Date, Seller will convey to
Purchaser good and valid title to such properties, equipment and assets and any
other properties, equipment and assets acquired by it subsequent to the date
hereof and used or usable in the business or operation of the Stations, free of
any and all Liens and rights of third parties of any kind whatsoever.
5.7 LEASED TRANSMITTER SITES AND STUDIO SITE.
5.7.1. Seller has valid, binding and enforceable leasehold interests,
which are free and clear of all Liens except for Permitted Liens, in and to the
Leased Transmitter Sites and Studio Site.
5.7.2. Seller has not received from any Governmental Authority any notice
of, and has no knowledge of, any violation of or notice of noncompliance with
any zoning, building, health, fire, water use or similar Law in connection with
the Leased Transmitter Sites or Studio Site. Seller has complied with, and is in
compliance with, all such Laws, regulations and ordinances. There is no zoning
ordinance or building code or use or occupancy restriction or condemnation
proceeding pending or, to the knowledge of Seller, threatened, which would
preclude or impair the use of the Leased Transmitter Sites or the Studio Site or
the improvements thereon by Purchaser, in the manner and for the purposes for
which they are presently used and, to the knowledge of Seller, no fact or
condition exists which would result in the termination or impairment of access
of the Stations to the Leased Transmitter Sites or the Studio Site or
discontinuation of necessary sewer, water, electrical, gas, telephone or other
utilities or services.
5.8 TANGIBLE PERSONAL PROPERTY.
Schedule 2.1.3, Schedule 2.1.5 and Schedule 2.1.6 sets forth a list,
complete and accurate in all material respects, of the Purchased Assets which
consist of tangible personal property. All of such tangible personal property
are in good condition and working order, ordinary wear and tear excepted, free
from any known defects except such minor defects that do not interfere with the
continued present use thereof by Seller and are in material compliance with all
current FCC requirements and all other applicable Law.
5.9 FCC LICENSES.
Schedule 2.1.1 lists and accurately describes all of the FCC Licenses
necessary for the lawful ownership and operation of the Stations and the conduct
of their businesses. Seller has furnished to Purchaser true and accurate copies
of all of the FCC Licenses. Each such FCC License is in full force and effect
and is valid under applicable Laws; the Stations have been, and are now being
operated in compliance with the Communications Act; and no event has occurred
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which (whether with or without notice, lapse of time or the happening or
occurrence of any other event) is reasonably likely to result in the revocation
or termination of any FCC License or the imposition of any restriction of such a
nature as would have a Material Adverse Effect, except for proceedings of a
legislative or rule-making nature intended to affect the broadcasting industry
generally. The Stations, each of their physical facilities, electrical and
mechanical systems and transmitting and studio equipment are being operated in
accordance with the specifications of the FCC Licenses. The FCC Licenses are
unimpaired by any act or omission of Seller or any of Seller's officers,
directors or employees and, Seller has fulfilled and performed all of Sellers
obligations with respect to the FCC Licenses and has full power and authority
thereunder. No application, action or proceeding is pending for the modification
of any of the FCC Licenses. No event has occurred which, individually or in the
aggregate, and with or without the giving of notice or the lapse of time or
both, would constitute grounds for revocation or non-renewal thereof. There are
no proceedings or complaints pending or, to the knowledge of Seller, threatened
at the FCC against Seller with respect to the Stations and Seller is not aware
of any facts or circumstances that could reasonably provide a basis for any such
proceedings or complaints.
5.10 COMPLIANCE WITH LAW.
On the Closing Date there will be no judgment outstanding or litigation or
proceeding pending or, to Seller's knowledge, threatened which affects the title
or interest of Seller in or to any license or any of the other Purchased Assets
or its power or right to sell, convey, transfer or assign the same to Purchaser
as provided herein, or which would prevent or affect the operation and use of
the same by Purchaser, as presently operated and used by Seller.
5.11 REPORTS.
Seller has duly filed all reports required to be filed by any Law or Order
of any court or Governmental Authority and has made payment of all charges and
other payments, if any, shown by such reports to be due and payable. All reports
required to be filed by Seller with the FCC with respect to the Stations have
been filed. Such reports and disclosures are complete and accurate in all
material respects.
5.12 TAXES.
All Tax reports and returns required to be filed by or relating to the
Purchased Assets have been filed with the appropriate Governmental Authority,
and there have been paid all Taxes, penalties, interest, deficiencies,
assessments or other charges due with respect to such Taxes, as reflected on the
filed returns or claimed to be due by such federal, state or local taxing
authorities (other than Taxes, deficiencies, assessments or claims which are
being contested in good faith and which in the aggregate are not material).
Seller has not received any written notice of any examinations or audits pending
or unresolved examinations or audit issues with respect to Seller's federal,
state or local Tax returns that could adversely affect the Purchased Assets. All
additional Taxes, if any, assessed as a result of such examinations or audits
have been paid, and [to Seller's knowledge], there are no pending claims or
proceedings relating to, or
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asserted for, Taxes, penalties, interest, deficiencies or assessments against
the Purchased Assets.
5.13 ENVIRONMENTAL MATTERS.
5.13.1. Seller is in compliance with all Environmental Laws.
5.13.2. To Seller's knowledge, no condition exists at the Transmitter
Sites or Studio Site that is reasonably likely to result in a material claim
under Environmental Laws.
5.13.3.There are no pending or, to the knowledge of Seller, threatened
actions, suits, claims, or other legal proceedings based on (and Seller has not
received any written notice of any complaint, order, directive, citation, notice
of responsibility, notice of potential responsibility, or information request
from any Governmental Authority arising out of or attributable to): (a) the
current or past presence at any part of the Transmitter Sites or Studio Site of
Hazardous Materials; (b) the current or past release or threatened release into
the environment from the Transmitter Sites or Studio Site (including into any
storm drain, sewer, septic system or publicly owned treatment works) of any
Hazardous Materials; (c) the off-site disposal of Hazardous Materials
originating on or from the Transmitter Sites or Studio Site or the businesses or
Purchased Assets of Seller; (d) any violation of Environmental Laws at any part
of the Transmitter Sites or Studio Site (i) arising from Seller's activities
involving Hazardous Materials, or (ii) to Seller's knowledge, from the
activities of any other Person involving Hazardous Materials.
5.13.4. Seller has been duly issued all permits, licenses, certificates
and approvals required under any Environmental Law to operate the Purchased
Assets as they are currently operated.
5.13.5. Seller has no environmental assessments, reports, audits and/or
other documents in its possession or under its control that relate to the
Transmitter Sites or Seller's compliance with Environmental Laws with respect to
the Purchased Assets.
5.14 LITIGATION.
There is no Order of any court or Governmental Authority and no action,
suit, proceeding or investigation, judicial, administrative or otherwise that is
pending or, to Seller's knowledge, threatened against or affecting the Stations.
There is no unsatisfied judgment against any of the Assets outstanding.
5.15 ASSUMED LEASES.
True and complete copies of all Assumed Leases and all modifications,
amendments and renewals thereof have been furnished to Purchaser and represent
all leases, understandings and/or agreements of Seller in conjunction with the
operation of the Stations except contracts for the sale of commercial air time.
Seller is not in default in any material respect under any of the Assumed
Leases, and, as of the Closing Date, Seller will have paid all sums and
performed in all
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material respects all obligations under the Assumed Leases which are required to
be paid or performed prior to the Closing Date. The Assumed Leases are in full
force and effect and are valid and, to the knowledge of Seller, enforceable in
accordance with their respective terms.
5.16 PUBLIC INSPECTION FILES.
The public inspection files for the Stations are in material compliance
with the regulations of the FCC relating thereto.
5.17 BUSINESS RECORDS.
Seller has, and after the Closing, Purchaser will have, the right to use
the Business Records included in the Purchased Assets, free and clear of any
royalty or other payment obligations.
5.18 UNION ACTIVITY.
Employees are not presently represented by and, to the knowledge of
Seller, are not seeking representation through any union or other collective
bargaining unit. Within two years of the date of this Agreement, no Action has
been filed with or filed by the National Labor Relations Board or, to Seller's
knowledge threatened. Seller has complied in all material respects with all laws
and regulations relating to the employment of labor, including without
limitation, provisions related to wages, hours, occupational safety and health,
equal employment opportunity, withholding of taxes and social security
contributions.
5.19 EMPLOYEE BENEFITS.
Purchaser will have no obligation or liability due to or because of any
past service liability, vested benefits, retirement plan insolvencies or other
obligation under Law (including ERISA) resulting from the purchase of the
Stations or from former Employees becoming employees of Purchaser. No Employee
of Seller shall have, and nothing contained in this Agreement shall confer upon
any Employee, any right with respect to continued employment by Purchaser, nor
shall anything herein interfere with any right Purchaser may have after the
Closing Date to (i) terminate the employment of any of the Employees at any
time, with or without cause, or (ii) establish or modify any of the terms or
conditions of employment of the Employees in the exercise of Purchaser's
independent business judgment.
5.20 INTELLECTUAL PROPERTY.
None of the Stations' Intangible Personal Property being sold to Purchaser
under this Agreement. There are no pending or, to the knowledge of Seller,
threatened Actions against Seller in respect to any Stations' Intangible
Personable Property. Seller has such ownership of or
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such rights by Contract in and to the Stations' Intangible Personal Property as
is necessary to use the Intangible Personal Property in the operation of the
Stations as currently being used.
5.21 INSURANCE.
Seller now has in force adequate fire and other risk insurance covering
the full replacement value of the Transmitter Sites and tangible personal
property to be transferred herein and shall cause such insurance to be
maintained in full force until the Closing Date.
5.22 THIRD PARTY CONSENTS.
The only consents from any Person, other than a Governmental Authority,
which are required to be obtained by Seller in connection with the execution and
delivery by Seller of this Agreement and the consummation of the transactions
contemplated hereby are set forth on Schedule 5.22. (the "THIRD PARTY
CONSENTS").
5.23 FINDERS AND BROKERS.
No person has, as a result of any agreement entered into by Seller, any
valid claim against any of the parties hereto for a brokerage commission,
finder's fee or other like payment.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
6.1 ORGANIZATION AND GOOD STANDING.
Purchaser and each Purchaser Affiliate is a Florida limited liability
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida and has all requisite power and authority to own and
lease its properties and carry on its business as currently conducted.
6.2 DUE AUTHORIZATION.
Subject to the FCC Order, Purchaser has full power and authority to enter
into this Agreement and to carry out Purchaser's obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Purchaser and Purchaser Affiliate. This
Agreement has been duly executed and delivered by Purchaser and constitutes the
legal, valid and binding obligation of Purchaser, enforceable against it in
accordance with its respective terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally or general equitable principles.
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6.3 EXECUTION AND DELIVERY.
Neither the execution and delivery by Purchaser of this Agreement nor the
consummation of the transactions contemplated hereby or thereby will: (a)
conflict with or result in a breach of the articles of organization of Purchaser
or Purchaser Affiliate; (b) subject to the FCC Order, violate any Law or Order
of any court or Governmental Authority; or (c) violate or conflict with or
constitute a default under (or give rise to any right of termination,
cancellation or acceleration under) any material agreement, indenture, mortgage,
or other instrument to which Purchaser or Purchaser Affiliate is a party or by
which it is bound or affected.
6.4 CONSENTS.
No approval, authorization, consent, order or other action of, or filing
with, any court or Governmental Authority is required in connection with the
execution and delivery by Purchaser of this Agreement or the consummation of the
transactions contemplated hereby, other than those of the FCC and the HSR Act.
No approval, authorization or consent of any other Person is required in
connection with the execution and delivery by Purchaser of this Agreement and
the consummation of the transactions contemplated hereby or thereby, except as
may have been previously obtained by Purchaser or Purchaser Affiliate.
6.5 FINDERS AND BROKERS.
No person has as a result of any agreement entered into by Purchaser any
valid claim against any of the parties hereto for a brokerage commission,
finder's fee or other like payment.
6.6 PURCHASER'S QUALIFICATION.
6.6.1. Purchaser and each Purchaser Affiliate is legally, financially and
otherwise qualified to be the assignee of the FCC Licenses, and no waivers shall
be required by the FCC for the consummation of the transactions contemplated
hereby or the grant of the FCC Order. To Purchaser's knowledge, there are no
facts or proceedings which would reasonably be expected (a) to disqualify
Purchaser under the Communications Act or otherwise from holding the FCC
Licenses, (b) to cause the FCC to flag the FCC Application and/or initiate a
review of the potential effects on competition and/or diversity of the
transaction, or (c) to cause the FCC not to approve the assignment of the FCC
Licenses to Purchaser.
6.6.2. To the knowledge of Purchaser, Purchaser or any Purchaser Affiliate
shall not be required to sell, dispose of or surrender any FCC license held by
Purchaser or any such Purchaser Affiliate with respect to any broadcast
properties, or any other properties or businesses of Purchaser or such Purchaser
Affiliate, as may be required under the Communications Act or the antitrust laws
in order to consummate the sale and purchase of the Purchased Assets
contemplated by this Agreement.
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6.7 FINANCIAL ABILITY.
Thirty (30) days prior to the Closing Date, Purchaser will have sufficient
cash available to consummate the transactions contemplated by this Agreement and
will deliver a certificate to Seller confirming same.
ARTICLE 7.
CERTAIN COVENANTS AND AGREEMENTS
7.1 REGULATORY APPROVALS.
7.1.1. No later than ten (10) Business Days after the date hereof, Seller
and Purchaser shall jointly cause to be filed by Seller's FCC counsel one or
more applications with the FCC requesting its consent to the assignment of the
FCC Licenses from Seller to a Purchaser Affiliate. Each party shall pay its own
expenses in connection with the preparation and prosecution of the FCC
Application and shall share equally any filing fees associated with the FCC
Application. No later than ten (10) business days following the date hereof,
Seller and Purchaser shall jointly cause to be filed by Seller's counsel all
applications required pursuant to the HSR Act.
7.1.2. Upon the terms and subject to the conditions set forth in this
Agreement, Seller and Purchaser shall each use their respective commercially
reasonable efforts to promptly (a) take, or to cause to be taken, all actions,
and to do, or to cause to be done, and to assist and cooperate with the other
parties in doing all things proper or advisable under applicable Law or
otherwise to consummate and make effective the transactions contemplated by this
Agreement; (b) obtain from any Governmental Authority or other Person any
actions, non-actions, clearances, waivers, consents, approvals, permits or
Orders required to be obtained by Seller, Purchaser or any of their respective
Affiliates in connection with the authorization, execution, delivery and
performance of this Agreement, the consummation of the other transactions
contemplated hereby and thereby and the assignment of the FCC Licenses from
Seller to a Purchaser Affiliate; (c) furnish all information required for any
application or other filing to be made pursuant to any applicable Law or any
applicable regulations of any Governmental Authority in connection with the
transactions contemplated by this Agreement, including filings in connection
with the FCC Application, and to supply promptly any additional information and
documentary material that may be requested in connection with such filings or
applications; (d) avoid the entry of, or have vacated or terminated, any Order
that would restrain, prevent or delay the Closing or the FCC Order, including
defending against and opposing any lawsuits or other proceedings (including any
FCC reconsideration or review), whether judicial or administrative, reviewing or
challenging this Agreement, the consummation of the other transactions
contemplated hereby and thereby or the assignment of the FCC Licenses from
Seller to a Purchaser Affiliate. No party to this Agreement shall consent to any
voluntary delay of the assignment of the FCC Licenses from Seller to a Purchaser
Affiliate or the consummation of the other transactions contemplated hereby at
the behest of any Governmental Authority or other Person without the consent of
the other party, which consent shall not be unreasonably withheld, conditioned
or delayed.
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7.1.3. Seller agrees to make all appropriate filings pursuant to the HSR
Act with respect to the transactions contemplated herein as promptly as
practical but no later than ten (10) business days after the date hereof and to
supply as promptly as practical any additional information and documentary
material that may be requested pursuant to the HSR Act and to use commercially
reasonable efforts to cause the expiration or termination of the applicable
waiting periods under the HSR Act as promptly as practical.
7.1.4. Purchaser agrees to make all appropriate filings pursuant to the
HSR Act with respect to the transactions contemplated herein as promptly as
practical but no later than ten (10) business days after the date hereof and to
supply as promptly as practical any additional information and documentary
material that may be requested pursuant to the HSR Act and to use commercially
reasonable efforts to cause the expiration or termination of the applicable
waiting periods under the HSR Act as promptly as practical.
7.1.5. Seller and Purchaser will each pay one-half of the HSR Act filing
fee.
7.2 THIRD PARTY CONSENTS AND NOTICES.
7.2.1. Consummation of this Agreement is subject to and contingent upon
Seller obtaining the Third Party Consents for the Assumed Leases, which Third
Party Consents shall be substantially in the form of the Consent to Assignment
of Lease and Estoppel Agreement attached as Exhibit C hereto. As promptly as
practicable after the date of this Agreement, Seller will use its commercially
reasonable efforts to obtain the consent of its lenders and all other Third
Party Consents, each of which shall be in a form reasonably satisfactory to
Purchaser. None of the Third Party Consents shall provide for any increase in
cost or other change in terms and conditions after the Closing which would be
materially adverse to Purchaser.
7.3 ACCESS TO INFORMATION.
From the date hereof until the Closing (upon reasonable notice to Seller),
during normal business hours, Seller shall, and shall (a) afford the officers,
employees and authorized agents and representatives of Purchaser reasonable
access to the offices, properties and records of Seller to the extent related to
the Purchased Assets, and (b) furnish to the officers, employees and authorized
agents and representatives of Purchaser such additional information regarding
the Purchased Assets as Purchaser may from time to time reasonably request in
order to assist Purchaser in fulfilling its obligations under this Agreement and
to facilitate the consummation of the transactions contemplated hereby;
provided, however, that such investigation shall not unreasonably interfere with
any of the businesses or operations of Seller or either Station.
7.4 PUBLIC ANNOUNCEMENTS.
Seller and Purchaser shall consult with each other before issuing any
press release or otherwise making any public statements with respect to this
Agreement or the transactions contemplated herein and shall not issue any such
press release or make any such public statement without the prior written
consent of the other party, which shall not be unreasonably withheld;
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provided, however, that a party may, without the prior written consent of the
other party, issue such press release or make such public statement as may be
required by Law or any listing agreement with a national securities exchange to
which Seller or Purchaser is a party if it has used all commercially reasonable
efforts to consult with the other party and to obtain such party's consent but
has been unable to do so in a timely manner.
7.5 OPERATIONS.
7.5.1. In the event a Station operates with less than the maximum
effective radiated power authorized by the FCC or fails to broadcast programming
for a period of more than thirty (30) consecutive minutes, Seller shall notify
Purchaser promptly of such event and shall provide a written explanation for
such reduction in operating power.
7.6 CONTROL OF THE STATIONS.
Prior to the Closing, Purchaser shall not, directly or indirectly,
control, supervise, direct, or attempt to control, supervise, or direct, the
operations of the Stations; such operations, including complete control and
supervision of all of the Stations programs, employees, and policies, shall be
the sole responsibility of Seller until the Closing. However, Purchaser may
operate the Stations pursuant to the Time Brokerage Agreement.
7.7 RISK OF LOSS.
Seller shall bear the risk of all damage to, loss of or destruction of any
of the Purchased Assets between the date of this Agreement and the Closing Date.
If any material portion of the Purchased Assets (other than items that are
obsolete and not necessary for the continued operations of the Stations) shall
suffer any material damage or destruction prior to the Closing Date, Seller
shall promptly notify Purchaser in writing of such damage or destruction, shall
promptly take all necessary steps to restore, repair or replace such assets at
Seller's sole expense, and shall advise Purchaser in writing of the estimated
cost to complete such restoration, repair or replacement and all amounts
actually paid as of the date of the estimate. If necessary and provided that
Seller is diligently pursuing such restoration, repair or replacement, the
Closing Date shall be extended for a period not exceeding ninety (90) days to
accomplish such restoration, repair or replacement. If such restoration, repair
or replacement is not accomplished prior to the Closing Date, as the same may be
extended as provided herein, Purchaser shall have the right, at its option, to
proceed with to Closing upon Seller placing in escrow an amount equal to One
Hundred Fifty percent (150%) of the estimated cost of restoration, repair or
replacement to be completed. Said escrow shall be used to pay all costs of
restoration, repair or replacement of the Purchased Assets and the balance of
funds remaining in escrow at the completion of all restoration, repair or
replacement, if any, shall be returned to Seller.
7.8 COLLECTION OF RECEIVABLES.
Seller shall collect its own accounts receivable.
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7.9 EMPLOYEE RELATED MATTERS.
Purchaser and Seller agree that all employees of Seller are the
responsibility of Seller and Purchaser shall assume no Liabilities with respect
to any employees of Seller.
ARTICLE 8.
CONDITIONS TO PURCHASER'S CLOSING
The obligations of Purchaser to purchase the Purchased Assets and to
proceed with the Closing are subject to the satisfaction (or waiver in writing
by Purchaser) at or prior to the Closing of each of the following conditions:
8.1 REPRESENTATIONS AND WARRANTIES.
The representations and warranties of Seller contained in this Agreement
shall be true and correct as of the Closing Date with the same effect as though
made at such time (except as contemplated or permitted by this Agreement).
8.2 COVENANTS.
Seller shall have performed the covenants and agreements contained in this
Agreement that are to be performed by Seller at or prior to the Closing.
8.3 PRIMARY BROADCAST LICENSES.
The FCC primary broadcast licenses of the Stations shall contain no
adverse modifications of the terms of such authorizations as they exist as of
the date of this Agreement. The FCC shall have granted Station KZAB-FM full
license authority to cover construction permit BPH-20021106AAS. Moreover,
closing will not take place until Station KZBA-FM's technical facility is fully
rebuilt and fully operational and a license granted pursuant to construction
permit BPH-20021106AAT.
8.4 FCC ASSIGNMENT ORDER.
The FCC Assignment Order shall be in full force and effect and be a Final
Order.
8.5 ORDERS.
No Order or temporary, preliminary or permanent injunction or restraining
order shall have been entered by any Governmental Authority which expressly
prohibits or materially restrains the transactions contemplated by this
Agreement.
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8.6 THIRD PARTY CONSENTS.
All Third Party Consents shall have been obtained without the imposition
of any conditions materially adverse to Purchaser.
8.7 CLOSING DELIVERIES.
Purchaser shall have received the executed Ancillary Agreements and each
of the other documents or items required to be delivered to it pursuant to
Section 10.1 hereof.
ARTICLE 9.
CONDITIONS TO SELLER'S CLOSING
The obligations of Seller to sell, transfer, convey and deliver the
Purchased Assets and to proceed with the Closing are subject to the satisfaction
(or waiver in writing by Seller) at or prior to the Closing of the following
conditions:
9.1 REPRESENTATIONS AND WARRANTIES.
The representations and warranties of Purchaser contained in this
Agreement shall be true and correct as of the Closing Date with the same effect
as though made at such time (except as contemplated or permitted by this
Agreement), except in all cases where the failure of any representation or
warranty to be true and correct would not prevent Purchaser from consummating
this Agreement.
9.2 COVENANTS.
Purchaser shall have performed the covenants and agreements contained in
this Agreement that are to be performed by Purchaser as of the Closing, except
in all cases where the failure to perform such covenants and agreements would
not prevent Purchaser from consummating this Agreement.
9.3 FCC ASSIGNMENT ORDER.
The FCC Assignment Order shall be in full force and effect.
9.4 ORDERS.
No Order or temporary, preliminary or permanent injunction or restraining
order shall have been entered by any Governmental Authority which expressly
prohibits or materially restrains the transactions contemplated by this
Agreement.
9.5 CLOSING DELIVERIES.
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Seller shall have received the executed Ancillary Agreements and each of
the other documents or items required to be delivered to it pursuant to Section
10.2 hereof.
ARTICLE 10.
DOCUMENTS TO BE DELIVERED AT CLOSING
10.1 DELIVERY BY SELLER.
10.1.1. At the Closing, Seller shall deliver to Purchaser the following:
10.1.2. Executed counterparts of the Ancillary Agreements and each of the
other documents or items required to be delivered to Purchaser.
10.1.3. The Stations' Public Files.
10.1.4. Executed Third Party Consents.
10.1.5. Executed counterpart of the joint instructions to Escrow Agent if
the Escrow Deposit has not previously been released.
10.1.6. Originals of all notices, applications or other filings in the
possession or under the control of the Seller, if any, given or filed by, on
behalf of, or in connection with the Seller, occupants, lessees, sublessees,
tenants, subtenants or licensees of the Owned Transmitter Site and/or the Owned
Transmitter Site, with or to the United States Environmental Protection Agency
and/or any state or local counterpart thereof, as provided in Section 8.12
hereto.
10.1.7. Such other instruments and documents as may be reasonably
requested by Purchaser to effectuate the transaction contemplated herein.
10.2 DELIVERY BY PURCHASER.
At the Closing, Purchaser shall deliver to Seller the following:
10.2.1. The Purchase Price in the amount and manner set forth in Section
3.1.
10.2.2. Executed counterparts of the Ancillary Agreements and each of the
other documents or items required to be delivered to Seller.
10.2.3. Executed counterpart of the joint instructions to Escrow Agent if
the Escrow Deposit has not previously been released.
10.2.4. Such other instruments and documents as may reasonably requested
by Seller to effectuate the transactions contemplated hereby.
ARTICLE 11.
TERMINATION
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11.1 TERMINATION.
This Agreement may be terminated by the mutual written agreement of
Purchaser and Seller, or, if the terminating party is not then in material
breach of its obligations hereunder, upon written notice as follows:
11.1.1. by Purchaser if Seller is in material breach of its obligations
hereunder, such that the conditions set forth in Section 8.1 and Section 8.2
would not be satisfied as of the Closing, and such breach has not been cured by
Seller within thirty (30) days of written notice of such breach (or such longer
period of time if the breach cannot be reasonably cured within thirty (30) days
and Seller is diligently attempting to cure such breach);
11.1.2 by Seller if Purchaser is in material breach of its obligations
hereunder, such that the conditions set forth in Section 9.1 and Section 9.2
would not be satisfied as of the Closing, and such breach has not been cured by
Purchaser within thirty (30) days of written notice of such breach (or such
longer period of time if the breach cannot be reasonably cured within thirty
(30) days and Purchaser is diligently attempting to cure such breach);
11.1.3. by either Purchaser or Seller if the FCC denies the FCC Assignment
Application in an order that has become a Final Order, or has designated the FCC
Assignment Application for a hearing; or
11.1.4. by either Purchaser or Seller if the Closing has not occurred on
or before such date which is twelve (12) months after the date of this Agreement
(the "Termination Date").
11.2 EFFECT OF TERMINATION.
In the event of termination of this Agreement pursuant to Section 11.1
above, all rights and obligations of the parties under this Agreement shall
terminate without any liability of any party to any other party (except for any
liability of any party for any material breach of this Agreement, in which case
any non-breaching party shall have all rights and remedies available at law or
in equity). In the event of such termination, the Escrow Deposit shall be
returned to Purchaser; provided that, in the event that the Escrow Deposit shall
have been disbursed to Seller from escrow prior to the Closing Date pursuant to
Section 3.3 hereof, Seller shall immediately, upon termination of this Agreement
pursuant to Section 11.1 above, pay to Purchaser an amount equal to the amount
of the Escrow Deposit at the time of its disbursement from escrow, said amount
to be paid to Purchaser by wire transfer of immediately available funds to an
account identified by Purchaser in writing. Notwithstanding anything to the
contrary contained herein, the provisions of Section 14.4 shall expressly
survive the termination of this Agreement.
ARTICLE 12.
DISBURSEMENT OF DEPOSIT
12.1 FAILURE TO CLOSE WITHOUT FAULT.
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In the event that (i) each of the parties hereto shall have satisfied in
full all of the obligations of such party under this Agreement which were to
have been satisfied by such party prior to the Closing Date and shall not have
breached in any material respect any representation, warranty, covenant or
agreement of such party contained in this Agreement, but (ii) the closing shall
nevertheless fail to take place (without any fault on the part of any party)
prior to the Termination Date because one or more conditions to the closing in
Article 8 and Article 9 hereof shall not have been satisfied or waived, and this
Agreement has been terminated, the Deposit, together with any interest earned
thereon, shall be returned to Purchaser.
12.2 DISBURSEMENT OF DEPOSIT TO SELLER.
If the conditions to closing specified in Article 8 and Article 9 hereof
shall have been satisfied and either (i) Purchaser shall default in the
performance of any of its material obligations or materially breach any of its
representations, warranties, covenants or agreements hereunder and Seller shall
have performed all of its material obligations and shall not have materially
breached any of its representations, warranties, covenants or agreements
hereunder, or (ii) (1) pursuant to the terms of this Agreement, Purchaser shall
be obligated to purchase the Stations Assets, (2) Seller shall have duly
satisfied each of the conditions of Article 9 above to be satisfied by it (or,
in the case of any such condition which is to be satisfied at the Closing, shall
have demonstrated a willingness and ability to satisfy such condition in the
event the Closing were to take place), except to the extent that any failure to
satisfy such condition was caused in any material respect by Purchaser, and (3)
Purchaser shall nevertheless fail to purchase the Stations Assets in accordance
herewith, in the event Seller terminates this Agreement, the Deposit, together
with any interest earned thereon, shall be disbursed to Seller as liquidated
damages in accordance with the terms of the Escrow Agreement. The parties agree
that such disbursement of the Deposit is not a penalty and is a reasonable
estimation of damages actually incurred. Said amount shall be Seller's sole and
exclusive recoverable damages.
12.3 RETURN OF DEPOSIT TO PURCHASER.
If the conditions to closing specified in Article 8 and Article 9 hereof
shall have been satisfied and either (i) Seller shall default in the performance
of its material obligations or materially breach any of its representations,
warranties, covenants or agreements hereunder and Purchaser shall have performed
all of its material obligations and shall not have materially breached any of
its representations, warranties, covenants or agreements hereunder, or (ii) (1)
pursuant to the terms of this Agreement, Seller shall be obligated to sell the
assets and properties hereunder to Purchaser, (2) Purchaser shall have duly
satisfied each of the conditions of Article 8 above to be satisfied by it (or,
in the case of any such condition which is to be satisfied at the closing, shall
have demonstrated a willingness and ability to satisfy such condition in the
event the closing were to take place), except to the extent that any failure to
satisfy such condition was caused in any material respect by Seller, and (3)
Seller shall nevertheless fail to sell the assets and properties to Purchaser in
accordance herewith, in the event Purchaser terminates this Agreement, the
Deposit, together with any interest earned thereon, shall forthwith be returned
to Purchaser.
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12.4 MUTUAL AGREEMENT.
In the event this Agreement is terminated by mutual agreement of Seller
and Purchaser, the Deposit, together with any interest earned thereon, shall be
delivered in accordance with the mutual written agreement of the parties.
12.5 PREVIOUSLY DISBURSED ESCROW DEPOSIT
In the event that the Escrow Deposit is payable to Seller pursuant to the
provisions of this Article 12 and the Escrow Deposit shall have previously been
disbursed to Seller pursuant to Section 3.3 of this Agreement and the terms of
the Escrow Agreement, the parties agree that said amount shall be retained by
Seller as liquidated damages as contemplated in Section 12.3 and said amount
shall be Seller's sole and exclusive recoverable damages and its retention shall
be Seller's sole remedy. In the event that the Escrow Deposit is payable to
Purchaser pursuant to the provisions of this Article 12 and the Escrow Deposit
shall have previously been disbursed to Seller pursuant to Section 3.3 of this
Agreement and the terms of the Escrow Agreement, the parties agree that Seller
shall immediately pay to Purchaser an amount equal to the amount of the Escrow
Deposit at the time of its disbursement from Escrow.
ARTICLE 13.
RIGHTS OF INDEMNIFICATION; DEFAULT
13.1 SELLER'S INDEMNIFICATION OF PURCHASER.
13.1.1. It is understood and agreed that Purchaser does not assume, and
shall not be obligated to pay, any Liabilities of Seller under the terms of this
Agreement or otherwise and shall not be obligated to perform any obligations of
Seller of any kind or manner except the Assumed Liabilities. Seller hereby
agrees to indemnify and hold Purchaser, its successors and assigns, harmless
from and against: (i) actions and Liabilities arising from the operation of the
Stations prior to the Closing Date, including Actions and Liabilities arising or
required to be performed prior to the Closing Date under any Contract assumed by
Purchaser hereunder; (ii) any and all Losses resulting from a misrepresentation,
breach of warranty or nonfulfillment of a Contract on the part of Seller under
this Agreement, arising out of events occurring prior to the Closing Date, or
from a material misrepresentation in or omission from any certificate, Ancillary
Agreement or other instrument furnished to Purchaser pursuant to this Agreement,
or in connection with any of the transactions contemplated hereby; and (iii) any
and all Losses, including reasonable attorneys' fees, incurred by Purchaser as a
result of Seller's failure or refusal to compromise or defend any Action
incident to the foregoing provisions.
NOTWITHSTANDING THE FOREGOING, SELLER SHALL NOT BE REQUIRED TO INDEMNIFY
PURCHASER UNDER THE FOREGOING CLAUSES (i), (ii) OR (iii) UNLESS THE AGGREGATE
AMOUNT OWED BY SELLER TO PURCHASER PURSUANT TO THE FOREGOING CLAUSES (i), (ii)
AND (iii) EXCEEDS TEN THOUSAND DOLLARS ($10,000.00), IN WHICH EVENT SELLER SHALL
BE REQUIRED TO INDEMNIFY PURCHASER FOR THE ENTIRE AMOUNT OWED.
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13.1.2. If any Action for which Purchaser is entitled to indemnity is
asserted against Purchaser by a third party, Purchaser shall promptly give
Seller notice thereof and give Seller an opportunity to defend the same with
counsel of Seller's choice (subject to the approval of Purchaser, not to be
unreasonably withheld or delayed) at Seller's expense. Purchaser, at Seller's
expense, shall provide reasonable cooperation in connection with such defense.
In the event that Seller desires to compromise or settle any such Action,
Purchaser shall have the right to consent to such settlement or compromise;
provided, however, that if such compromise or settlement is for money damages
only and will include a full release and discharge of Purchaser, and Purchaser
withholds its consent to such compromise or settlement, Purchaser and Seller
agree that (i) Seller's liability shall be limited to the amount of the proposed
settlement and, upon payment of such sum to Purchaser, Seller shall thereupon be
relieved of any further liability with respect to such Action, and (ii) from and
after such date, Purchaser will undertake all legal costs and expenses in
connection with any such Action. If Seller fails to defend any Action within a
reasonable time, Purchaser shall be entitled to assume the defense thereof, and
Seller shall be liable to Purchaser for its expenses reasonably incurred,
including attorneys' fees and payment of any settlement amount or judgment.
13.2 PURCHASER'S INDEMNIFICATION OF SELLER.
13.2.1. Purchaser hereby agrees to indemnify and hold Seller and its
successors and assigns harmless from and against: (i) actions and Liabilities
arising from the operation of the Stations on or after the Closing Date,
including Actions arising or required to be performed on or after the Closing
Date under any Contract assumed by Purchaser hereunder; (ii) any and all Losses
resulting from a misrepresentation, breach of warranty, nonfulfillment of any
Contract, assumed or required to be assumed by Purchaser under this Agreement,
or from a material misrepresentation in or omission from any certificate,
Ancillary Agreement or other instrument furnished to Purchaser pursuant to this
Agreement, or in connection with any of the transactions contemplated hereby;
and (iii) any and all Losses, including reasonable attorneys' fees, incurred by
Seller as the result of Purchaser's failure or refusal to defend or compromise
any Action incident to any of the foregoing provisions.
NOTWITHSTANDING THE FOREGOING, PURCHASER SHALL NOT BE REQUIRED TO INDEMNIFY
SELLER UNDER THE FOREGOING CLAUSES (i), (ii) OR (iii) UNLESS THE AGGREGATE
AMOUNT OWED BY PURCHASER TO SELLER PURSUANT TO THE FOREGOING CLAUSES (i), (ii)
AND (iii) EXCEEDS TEN THOUSAND DOLLARS ($10,000.00), IN WHICH EVENT PURCHASER
SHALL BE REQUIRED TO INDEMNIFY SELLER FOR THE ENTIRE AMOUNT OWED.
13.2.2. If any Action covered by the foregoing indemnity is asserted
against Seller by a third party, Seller shall notify Purchaser promptly and give
Purchaser an opportunity to defend the same with counsel of Purchaser's choice
(subject to the approval of Seller, not to be unreasonably withheld or delayed)
at Purchaser's expense. Seller, at Purchaser's expense, shall provide reasonable
cooperation in connection with such defense. In the event that Purchaser
25
desires to compromise or settle any such Action and such compromise will
adversely affect Seller, Seller shall have the right to consent to such
settlement or compromise; provided, however, that if such compromise or
settlement is for money damages only and will include a full release and
discharge of Seller, and Seller withholds its consent to such compromise or
settlement, Purchaser and Seller agree that (i) Purchaser's liability shall be
limited to the amount of the proposed settlement and, upon payment of such sum
to Seller, Purchaser shall thereupon be relieved of any further liability with
respect to such Action, and (ii) from and after such date, Seller will undertake
all legal costs and expenses in connection with any such Actions. If Purchaser
fails to defend any Action within a reasonable time, Seller shall be entitled to
assume the defense thereof, and Purchaser shall be liable to Seller for its
expenses reasonably incurred, including attorneys' fees and payment of any
settlement amount or judgment.
13.3 CURE PERIOD.
In the event either party shall default in its obligations hereunder, such
party shall have a period not to exceed fifteen (15) days after written notice
thereof by the other party in which to cure said default.
ARTICLE 14.
MISCELLANEOUS PROVISIONS
14.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations, warranties, covenants and agreements contained in
this Agreement shall be true and correct in all material respects on and as of
the Closing Date as though such representations, warranties, covenant and
agreements were made on and as of such time, and all such representations
warranties, covenants and agreements shall survive the Closing for a period of
one (1) year from the Closing Date; provided, however, neither party shall have
any liability for a misrepresentation or breach of warranty unless written
notice of claim specifying with particularity the facts upon which such claim is
based has been given the other party within one (1) year of the Closing Date.
Notwithstanding the foregoing, Sellers representation warranties contained in
Articles 5.6, 5.7, 5.9 and 4.12 shall survive for a period of two(2) years from
the Closing Date.
14.2 SPECIFIC PERFORMANCE.
Seller acknowledges that the Purchased Assets and the transactions
contemplated hereby are unique, that a failure by Seller to complete such
transactions will cause irreparable injury to Purchaser, and that actual damages
for any such failure may be difficult to ascertain and may be inadequate.
Consequently, Seller and Purchaser agree that Purchaser shall be entitled, in
the event of a default by Seller, to specific performance of any of the
provisions of this Agreement in addition to any other legal or equitable
remedies to which Purchaser may otherwise be entitled.
26
In the event any action is brought, the prevailing party shall be entitled to
recover court costs and reasonable attorneys' fees.
14.3 ADDITIONAL ACTIONS, DOCUMENTS AND INFORMATION.
Purchaser agrees that it will, at any time, prior to, at or after the
Closing Date, take or cause to be taken such further actions, and execute,
deliver and file or cause to be executed, delivered and filed such further
documents and instruments and obtain such consents, as may be reasonably
requested by Seller in connection with the consummation of the transactions
contemplated by this Agreement. Seller agrees that it will, at any time, prior
to, at or after the Closing Date, take or cause to be taken such further
actions, and execute, deliver and file or cause to be executed, delivered and
filed such further documents and instruments and obtain such consents, as may be
reasonably requested by Purchaser in connection with the consummation of the
transactions contemplated by this Agreement.
14.4 FEES AND EXPENSES.
Except as otherwise expressly provided in this Agreement, all fees and
expenses, including fees and expenses of counsel, financial advisors, and
accountants incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such fee or expense,
whether or not the Closing shall have occurred.
14.5 NOTICES.
All notices, demands, requests, or other communications which may be or
are required to be given or made by any party to any other party pursuant to
this Agreement shall be in writing and shall be hand delivered, mailed by
first-class registered or certified mail, return receipt requested, postage
prepaid, delivered by overnight air courier, or transmitted by facsimile
transmission addressed as follows:
If to Seller:
Spanish Broadcasting System SouthWest, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, XX XX
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
27
with a copy (which shall not constitute notice) to:
Xxxx Xxxxxxx LLP
000 00xx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile (000) 000-0000
If to Purchaser:
Styles Media Group, LLC
0000 Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxx 00000
Attention: Xxxxxx X. XxXxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx X. Xxxxx, Esq.
Bodzin and Xxxxx, P.C.
0000 00xx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxx Xxxxxx, Esq.
Booth, Freret, Xxxxx & Xxxxxx, P.C.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address as the addressee may indicate by written notice to the
other parties.
Each notice, demand, request, or communication which shall be given or
made in the manner described above shall be deemed sufficiently given or made
for all purposes at such time as it is delivered to the addressee (with the
return receipt, the delivery receipt, the affidavit of messenger being deemed
conclusive but not exclusive evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
28
14.6 WAIVER.
No delay or failure on the part of any party hereto in exercising any
right, power or privilege under this Agreement or under any other instrument or
document given in connection with or pursuant to this Agreement shall impair any
such right, power or privilege or be construed as a waiver of any default or any
acquiescence therein. No single or partial exercise of any such right, power or
privilege shall preclude the further exercise of such right, power or privilege,
or the exercise of any other right, power or privilege. No waiver shall be valid
against any party hereto unless made in writing and signed by the party against
whom enforcement of such waiver is sought and then only to the extent expressly
specified therein.
14.7 BENEFIT AND ASSIGNMENT.
14.7.1. No party may assign its rights or obligations hereunder without
the prior written consent of the other party except: (i) Purchaser may assign it
rights and obligations to a Purchaser Affiliate, (ii) Purchaser may make a
collateral assignment of its rights under this Agreement to any lender who
provides funds to Purchaser for the acquisition or operation of the Stations,
and (iii) Purchaser may assign all or a portion of its rights and obligations to
any other person or entity which possesses the legal and financial capacity to
consummate the transactions contemplated hereby. Subject to the foregoing, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by
the parties hereto and their respective successors and assignees..
14.7.2. Any purported assignment contrary to the terms hereof shall be
null, void and of no force and effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns as permitted hereunder. No Person, other than the parties hereto, is
or shall be entitled to bring any action to enforce any provision of this
Agreement against any of the parties hereto, and the covenants and agreements
set forth in this Agreement shall be solely for the benefit of, and shall be
enforceable only by, the parties hereto or their respective successors and
assigns as permitted hereunder.
14.8 ENTIRE AGREEMENT; AMENDMENT.
This Agreement and the Escrow Agreement, including the Schedules and
Exhibits hereto and thereto and the other instruments and documents referred to
herein or therein or delivered pursuant hereto or thereto contain the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior oral or written agreements, commitments or understandings
with respect to such matters. No amendment, modification or discharge of this
Agreement shall be valid or binding unless set forth in writing and duly
executed by the party or parties against whom enforcement of the amendment,
modification or discharge is sought.
14.9 SEVERABILITY.
If any part of any provision of this Agreement or any other contract,
agreement, document or writing given pursuant to or in connection with this
Agreement shall be invalid or
29
unenforceable under applicable law, such part shall be ineffective to the extent
of such invalidity or unenforceability only, without in any way affecting the
remaining parts of such provisions or the remaining provisions of said contract,
agreement, document or writing.
14.10 HEADINGS.
The headings of the sections and subsections contained in this Agreement
are inserted for convenience only and do not form a part or affect the meaning,
construction or scope thereof.
14.11 GOVERNING LAW; JURISDICTION.
This Agreement, the rights and obligations of the parties hereto, and any
claims or disputes relating thereto, shall be governed by and construed under
and in accordance with the laws of the State of California, without giving
effect to the conflicts of law principles thereof. The parties hereto hereby
waive personal service of any process in connection with any such action, suit
or proceeding and agree that the service thereof may be made by certified or
registered mail addressed to or by personal delivery to the other party, at such
other party's address set forth pursuant to Section 14.5 hereof. In the
alternative, in its discretion, any of the parties hereto may effect service
upon any other party in any other form or manner permitted by law.
14.12 SIGNATURE IN COUNTERPARTS.
This Agreement may be executed in separate counterparts, none of which
need contain the signatures of all parties, each of which shall be deemed to be
an original, and all of which taken together constitute one and the same
instrument. It shall not be necessary in making proof of this Agreement to
produce or account for more than the number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
14.12 FORCE MAJEURE
In the event that either party hereto shall be delayed or hindered or prevented
from the performance required hereunder by reason of an act of terrorism
occurring within the territorial limits of the United States, such party shall
be excused from performance for the period of time equivalent to the delay. An
"act of terrorism" shall mean an act, including the use of force or violence
and/or the threat thereof, of any person or group, whether acting alone or on
behalf of or in connection with any organization or government, committed for
political, religious or other ideological reasons or similar purposes including,
but not limited to, the intention to influence any government and/or to put the
public, or any part of the public, in fear. Such act must be adjudged to have
been an act of terrorism by the United States Office of Homeland Security.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
30
IN WITNESS WHEREOF, the parties hereto have executed this Asset Purchase
Agreement as of the date first above written.
PURCHASER:
STYLES MEDIA GROUP, LLC
By: /s/ Xxxxxx X. XxXxxxx
-------------------------
Name: Xxxxxx X. XxXxxxx
Title: Chief Operating Officer
SELLER:
SPANISH BROADCASTING SYSTEM
SOUTHWEST, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President/Chief Financial Officer
31
ASSET PURCHASE AGREEMENT
BETWEEN
SPANISH BROADCASTING SYSTEM SOUTHWEST, INC.
AND
STYLES MEDIA GROUP, LLC
List of Annex, Exhibits and Schedules
Annex I Definitions
Exhibit A Escrow Agreement
Exhibit B Time Brokerage Agreement
Exhibit C Consent to Assignment of Lease and Estoppel Agreement
Exhibit D Studio Use License Agreement
Schedule 2.1.1 FCC Licenses
Schedule 2.1.2 Leased Transmitter Sites
Schedule 2.1.3 Transmission Equipment
Schedule 2.1.4 Studio Site
Schedule 2.1.5 Studio Equipment
Schedule 2.1.6 Office Equipment
Schedule 2.1.8 Equipment Warranties
Schedule 2.1.10 Equipment Warranties
Schedule 2.2.4 Intellectual Property
Schedule 2.3 Assumed Leases
Schedule 5.22 Third Party Consents
32
ANNEX I
DEFINITIONS
"ACCOUNTS RECEIVABLES" shall mean all accounts receivable with respect to
the Stations as of the end of the broadcast day immediately preceding the
Closing Date.
"ACTION" shall mean any claim, action, suit, arbitration, opposition,
inquiry, proceeding or investigation by or before any Governmental Authority.
"AFFILIATES" of a party shall mean persons or entities that directly, or
indirectly through one or more intermediaries, control or are controlled by, or
are under common control with, such party.
"AGREEMENT" shall have the meaning set forth in the Preamble.
"ANCILLARY AGREEMENTS" shall mean, collectively, the Escrow Agreement,
Time Brokerage Agreement, Studio Use License Agreement and all certificates
executed or delivered by a Person pursuant to this Agreement and such
Agreements.
"APPRAISAL FIRM" shall have the meaning set forth in Section 3.5.1.
"ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENTS" shall mean the Assignment
and Assumption of Lease Agreements to be executed by Purchaser and Seller on the
Closing Date in substantially the form attached as Exhibit E hereto.
"ASSUMED LEASES" shall have the meaning set forth in Section 2.3.
"BUSINESS DAY" shall mean a day other than a Saturday, Sunday or other day
on which commercial banks in Illinois care authorized or required by law to
close.
"BUSINESS RECORDS" shall have the meaning set forth in Section 2.1.7.
"CLOSING" shall have the meaning set forth in Section 3.3.
"CLOSING DATE" shall have the meaning set forth in Section 3.3.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, and all
Laws promulgated pursuant thereto or in connection therewith.
"COMMUNICATIONS ACT" shall mean the Communications Act of 1934, as amended
and the rules, regulations, policies and orders promulgated thereunder, as in
effect from time to time.
"CONSENT TO ASSIGNMENT OF LEASE AND ESTOPPEL AGREEMENTS" shall mean the
Consent to Assignment of Lease and Estoppel Agreements to be executed with
regard to the Leased Transmitter Sites and Studio Site in substantially the form
attached as Exhibit C.
33
"CONTRACT" shall mean any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument.
"CONTROL" shall mean, as to any Person, the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise. The term "CONTROLLED"
shall have a correlative meaning.
"DEPOSIT" shall have the meaning set forth in Section 3.2.
"EMPLOYEE" shall mean an individual employed by Seller and primarily
engaged in the operation of a Station.
"ENVIRONMENTAL LAWS" shall mean the applicable provisions of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
("CERCLA"); 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act
("TSCA"), 15 U.S.C. Section 2601 et seq.; the Hazardous Materials Transportation
Act, 49 U.S.C. Section 5101 et seq.; the Resource Conservation and Recovery Act
("RCRA"), as amended by the Solid Waste Disposal Act, 42 U.S.C. Section 6901;
the Clean Water Act ("CWA"), 33 U.S.C. Section 1251 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Clean Air Act ("CAA"), 42 U.S.C.
Section 7401 et seq.; Section 101(14) of the Comprehensive Environmental
Response Compensation and Liability Act, 42 U.S.C. Section 9601(14); or any
other applicable federal, state, or local laws relating to Hazardous Materials
generation, production, use, storage, treatment, transportation or disposal, or
the protection of the environment.
"EQUIPMENT WARRANTIES" shall have the meaning set forth in Section 2.1.8.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"ESCROW AGENT" shall have the meaning set forth in Section 3.2.
ESCROW AGREEMENT shall have the meaning set forth in Section 3.2.
"EXCLUDED ASSETS" shall have the meaning set forth in Section 2.2.
"EXCLUDED LIABILITIES" shall have the meaning set forth in Section 2.4.
"FCC" shall mean the Federal Communications Commission.
"FCC ASSIGNMENT ORDER" shall mean the FCC action (including action by the
Media Bureau pursuant to delegated authority) consenting, without any condition
materially adverse to Purchaser or Seller, to the assignment of the FCC Licenses
from Seller to the appropriate Purchaser Affiliate.
34
"FCC LICENSES" shall have the meaning set forth in Section 2.1.1.
"FINAL ORDER" shall mean that the FCC Assignment Order shall have become
final, that is, that the time period for filing any protests or requests or
petitions for stay, reconsideration, rehearing, review or appeal by the FCC or a
court of competent jurisdiction of such order and the time period for the FCC or
its staff to have taken any actions to reconsider or review such order shall
have expired, and that no timely protest or request or petition for stay,
reconsideration, rehearing, review or appeal by the FCC or a court of competent
jurisdiction or action by the FCC or its staff to reconsider or review such
order shall be pending.
"GOVERNMENTAL AUTHORITY" shall mean any court, arbitrator, department,
commission, board, bureau, agency, authority, instrumentality or other body,
whether federal, state, municipal, foreign or other.
"GOVERNMENTAL ORDER" shall mean any, order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with an Governmental
Authority.
"HSR ACT" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of
1976, or any successor law, and regulations and rules issued pursuant to that
Act or any successor law.
"HAZARDOUS MATERIALS" shall mean any wastes, substances, or materials
(whether solids, liquids or gases) that is listed, regulated or defined (a) as
Hazardous Substances, Oils, Pollutants or Contaminants in the National Oil and
Hazardous Substances Pollution Contingency Plan, 40 C.F.R. Section 300.5, or
defined as such by, or regulated as such or (b) under any Environmental Law,
including petroleum, oil or any derivative thereof, PCBs or asbestos.
"INTELLECTUAL PROPERTY" shall mean (a) all trademarks, service marks,
trade names, Internet domain names, call signs, designs, logos, slogans, jingles
and general intangibles of like kind, together with all goodwill, associated
therewith, including any registrations and/or applications relating to the
foregoing; (b) all patents and copyrights, including any registrations and/or
applications relating to either of the foregoing; (c) all Internet web sites,
content and databases; (d) all software; (e) all confidential information,
technology, know how, inventions, processes, formulae, algorithms, models and
methodologies; and (f) all Contracts with any third parties in respect of the
foregoing.
"LAW" shall mean any federal, state, local or non-United States statute,
law, ordinance, rule, regulation, code order or other requirement of law.
"LEASED TRANSMITTER SITES" shall have the meaning set forth in Section
2.1.3.
"LIABILITIES" shall mean, as to any Person, all debts, adverse claims,
liabilities and obligations, direct, indirect, absolute or contingent known or
unknown, of such Person, whether accrued, vested or otherwise, whether in
contract, tort, strict liability or otherwise and whether or not actually
reflected, or required by generally accepted accounting principles to be
reflected, in such Person's balance sheets or other books and records.
35
"LIENS" shall mean, statutory or otherwise, mortgages, liens, security
interests, claims, pledges, licenses, equities, options, conditional sales
contracts, assessments, levies, charges or encumbrances of any nature
whatsoever.
"LOSSES" shall mean any and all losses, damages, costs, costs of
enforcement, expenses, Liabilities, obligations and claims of any kind
(including any Action brought by any Governmental Authority or Person and
including reasonable attorneys' and consultants' fees and expenses and other
costs and expenses reasonably incurred in any investigation, remediation,
defense or settlement).
"ORDER" shall mean any order, writ, injunction, judgment, plan or decree
of any Governmental Authority.
"PERMITTED LIENS" shall mean (a) Liens for taxes not yet due and payable;
(b) landlord's Liens and Liens for property taxes not delinquent; (c) statutory
Liens that were created in the ordinary course of business and which are not
delinquent; (d) restrictions or rights granted to Governmental Authorities under
applicable Law to the extent not arising pursuant to any defaults thereunder;
(e) zoning, building, or similar restrictions relating to or affecting property
which do not arise in connection with a violation of applicable Law and do not
limit the current use of the property in any material respect; (f) customary
utility and similar easements affecting property; and (g) Liens for which a
proration adjustment is made pursuant to Section 3.6 of this Agreement.
"PERSON" or "PERSON" shall mean any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated organization,
other form of business or legal entity or Governmental Authority.
"PURCHASED ASSETS" shall have the meaning set forth in Section 2.1.
"PURCHASE PRICE" shall have the meaning set forth in Section 3.1.
"PURCHASER" shall have the meaning set forth in the Preamble.
"PURCHASER AFFILIATE" shall mean each Affiliate of Purchaser, as
established by Purchaser, to be the licensee of each Station.
"SELLER" shall have the meaning set forth in the Preamble and shall
include Seller collectively Seller Affiliates.
"SELLER AFFILIATES" shall have the meaning set forth in the Recitals.
"STATIONS" shall have the meaning set forth in the Recitals.
"STUDIO SITE" shall have the meaning set forth in Section 2.1.4.
36
"STUDIO USE LICENSE AGREEMENT" shall mean the Studio Use License Agreement
to be executed by Purchaser and Seller on the Closing Date in substantially the
form attached as Exhibit D hereto.
"TAXES" shall mean all federal, state and local taxes (including income,
profit, franchise, sales, use, real property, personal property, ad valorem,
excise, employment, social security and wage withholding taxes) and installments
of estimated taxes, assessments, deficiencies, levies, imports, duties, license
fees, registration fees, withholdings, or other similar charges of every kind,
character or description imposed by any Governmental Authorities.
"TERMINATION DATE" shall have the meaning set forth in Section 11.1.4.
"THIRD PARTY CONSENTS" shall have the meaning set forth in Section 7.2.1.
"TIME BROKERAGE AGREEMENT" shall mean the Agreement between the parties
attached as Exhibit B to the Asset Purchase Agreement.
"TRADEOUT AGREEMENT" shall mean any Contract of Seller, oral or written,
pursuant to which Seller has agreed to sell or trade commercial air time or
commercial production services of the Stations in consideration for any property
or services in lieu of or in addition to cash.
37
