Exhibit 10.04
Asset Purchase Agreement
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), is made this _______ day
of October, 1999 by and between NextMedia Group, LLC, a Delaware limited
liability company ("Buyer") and The Jet Broadcasting Co., Inc., a Delaware
corporation ("Seller").
W I T N E S S E T H :
WHEREAS, Seller owns certain assets used in connection with the operation
of Radio Stations WFGO (FM) and WJET (FM), Erie, Pennsylvania (the "Stations");
and
WHEREAS, Buyer desires to acquire from Seller and Seller desire to sell to
Buyer substantially all of the assets owned by Seller, used in or useful to the
operation of the Stations;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto, intending to
be legally bound hereby agree as follows:
ARTICLE 1
PURCHASE OF ASSETS
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1.1. Transfer of Assets. On the terms and subject to the conditions hereof
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and subject to Section 1.2, on the Closing Date (as hereinafter defined), Seller
shall assign, transfer, convey and deliver to Buyer and Buyer shall acquire and
assume from Seller, all of the right, title and interest of Seller in and to
all of the following assets, properties, interests and rights of Seller
(collectively the "Station Assets") free and clear of all liens, claims, or
encumbrances other than Permitted Liens (as defined in Section 6.1.10):
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1.1.1 All of Seller's rights in and to the licenses, permits and
other authorizations issued to Seller by any governmental authority, including
those issued by the Federal Communications Commission (the "FCC") (hereafter
referred to as the "Station Licenses"), used in connection with the operation of
the Stations, along with renewals or modifications of such items between the
date hereof and the Closing Date, including but not limited to those listed in
Schedule 1.1.1 hereto;
1.1.2 All equipment, office furniture and fixtures, office materials
and supplies, inventory, spare parts and all other tangible personal property of
every kind and description, and Seller's rights therein, owned, leased or held
by Seller and used in or useful to the operations of the Stations, including but
not limited to those items described or listed in Schedule 1.1.2 hereto,
together with any replacements thereof, improvements or additions thereto made
between the date hereof and the Closing Date, and less any retirements or
dispositions thereof made between the date hereof and the Closing Date in the
ordinary course of business of Seller;
1.1.3 All of Seller's rights in and under those contracts,
agreements, leases and legally binding contractual rights of any kind, written
or oral, relating to the operation of the Stations ("Contracts") that are listed
in Schedule 1.1.3 hereto and (i) those Contracts entered into by Seller between
the date hereof and the Closing Date in the ordinary course of Seller's
business, subject to Section 1.2.4, and Section 8.1; (ii) all Contracts for the
sale of advertising time, subject to Section 8.1 hereto; and (iii) all Contracts
for consideration other than cash, such as merchandise, services or promotional
consideration ("Trade Agreements"), subject to Section 17.10 hereto. Those
contracts, agreements, leases and rights that are considered by Buyer to be
material to the Closing are identified on Schedule 1.1.3 (the "Material
Contracts");
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1.1.4 All of Seller's rights in and to all processes, patents, trade
secrets, proprietary information, call letters, trademarks, trade names, service
marks, franchises, copyrights, Internet domain names, including registrations
and applications for registration of any of them, computer software programs and
programming material of whatever form or nature, jingles, slogans, the Stations'
logos and all other logos or licenses to use same and all other intangible
property rights of Seller, which are used in connection with the operation of
the Stations, including but not limited to those listed in Schedule 1.1.4 hereto
(collectively, the "Intellectual Property") together with any associated good
will and any additions thereto between the date hereof and the Closing Date;
1.1.5 All of Seller's rights in and to all the files, documents,
records, and books of account relating to the operation of the Stations or to
the Station Assets, including, without limitation, each Station's public files,
programming information and studies, technical information and engineering data,
news and advertising studies or consulting reports, marketing and demographic
data, sales correspondence, lists of advertisers, promotional materials, credit
and sales reports and filings with the FCC, originals of all written Contracts
to be assigned hereunder, logs, software programs and books and records relating
to employees, financial, accounting, operation and technical matters; but
excluding records relating solely to any Excluded Asset (as hereinafter
defined);
1.1.6 All of Seller's rights under manufacturers' and vendors'
warranties relating to items included in the Station Assets and all similar
rights against third parties relating to items included in the Station Assets;
1.1.7 All real property owned by Seller together with all
appurtenant easements thereunto and all structures, fixtures and improvements
located thereon used in connection with the
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Stations' operations as more fully described in Schedule 1.1.7 hereto, together
with any additions thereto between the date hereof and the Closing Date ("Owned
Real Estate");
1.1.8 All rights and interests of Seller under any and all of the
leases of real property used in connection with the Stations' operations (the
"Leased Real Estate") (collectively with the Owned Real Estate, the "Real
Estate") which Leased Real Estate is identified and described in Schedule 1.1.8;
1.1.9 All such other assets, properties, interests and rights owned
by Seller that are used in connection with the business and operation of the
Stations or that are located as of the Closing Date on the Real Estate, except
Excluded Assets;
1.1.10 All of Seller's rights in and to all causes of action for any
past infringement of any of the Intellectual Property.
1.1.11 All of Seller's accounts receivable with respect to the
Station.
1.2 Excluded Assets. Notwithstanding anything to the contrary contained
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herein, it is expressly understood and agreed that the Station Assets shall not
include the following assets or any right, title or interest therein (the
"Excluded Assets"):
1.2.1 All cash, marketable securities, and cash equivalents of
Seller on hand and/or in banks;
1.2.2 All notes receivable of Seller.
1.2.3 All tangible and intangible personal property of Seller
disposed of or consumed in the ordinary course of business of Seller between the
date hereof and the Closing Date, as permitted hereunder;
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1.2.4 All Contracts that have terminated or expired on or prior to
the Closing Date in the ordinary course of business of Seller;
1.2.5 Seller's corporate seals, minute books, charter, limited
liability company, and/or partnership documents, corporate stock record books
and such other books and records as pertain to the organization, existence,
share capitalization or partnership interests of Seller and duplicate copies of
such financial records as are necessary to enable Seller to file its tax returns
and reports as well as any other records or materials relating to Seller
generally;
1.2.6 Contracts of insurance and all insurance proceeds or claims
made by Seller arising or related to the Station Assets prior to Closing (except
to the extent made after the date hereof with respect to Station Assets);
1.2.7 The Employee Benefit Plans (as defined hereinafter) and the
assets thereof;
1.2.8 Any right to use the names "Jet Broadcasting Co." and any
variations thereof;
1.2.9 All contracts entered into before this Agreement and not
listed in Schedule 1.1.3.;
1.2.10 Those specific assets identified on the Excluded Assets
Schedule attached to this Agreement as Schedule 1.2.10;
1.2.11 Except as described in Section 1.1.10, all of Seller's rights
in and to all causes of action; and
1.2.12 All tax refunds relating to the period prior to the Closing;
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
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2.1 Assumption of Obligations. Subject to the provisions of this Section
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2.1 and Section 2.2, on the Closing Date, Buyer shall assume the obligations of
Seller arising or to be performed after the Closing Date under the Contracts
referred to in Section 1.1.3 hereto in effect on the Closing Date, and all
liabilities and obligations that arise from the ownership or operation of the
Station Assets after the Closing Date. All of the foregoing liabilities and
obligations shall be referred to herein collectively as the "Assumed
Liabilities."
2.2 Retained Liabilities. Notwithstanding anything contained in this
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Agreement to the contrary, Buyer does not assume or agree to pay, satisfy,
discharge or perform, and will not be deemed by virtue of the execution and
delivery of this Agreement or any document delivered at the execution of this
Agreement, or as a result of the consummation of the transactions contemplated
by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge
or perform, any liability or obligation of the Seller other than the Assumed
Liabilities, including any of the following liabilities or obligations of the
Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor
or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other
provisions of this Agreement, tax liabilities of any and all kinds (federal,
state, local, and foreign) of Seller including, without limitation, any
liabilities for taxes on or measured by income, liabilities for withheld federal
and state income taxes and employee F.I.C.A. (Federal Insurance Contribution
Act) or employer F.I.C.A., and liabilities for income taxes arising as a result
of the transfer of the Station Assets or otherwise by virtue of the consummation
of the transactions contemplated hereby.
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2.2.3 All liabilities or obligations of Seller owed to any of
Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by
Seller or any predecessor or Affiliate of Seller of any of the terms or
conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor
or Affiliate of Seller resulting from, caused by or arising out of, any
violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an
employer, including, without limitation, liabilities for wages, supplemental
unemployment benefits, vacation benefits, severance benefits, retirement
benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or
any other employee benefits, withholding tax liabilities, workers' compensation,
or unemployment compensation benefits or premiums, hospitalization or medical
claims, occupational disease or disability claims, or other claims attributable
in whole or in part to employment or termination by Seller or arising out of any
labor matter involving Seller as an employer, and any claims, liabilities and
obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses
relating to any litigation, proceeding, or investigation of any nature arising
out of the operations of the Stations on or prior to the Closing Date including,
without limitation, any claims against or any liabilities for injury to or death
of persons or damage to or destruction of property, any workers' compensation
claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable,
other indebtedness, obligations or accrued liabilities of Seller.
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2.2.9 Any liabilities or obligations resulting from the failure to
comply with or imposed pursuant to any environmental protection, health, or
safety laws or regulations or resulting from the generation, storage, treatment,
transportation, handling, disposal, release of hazardous substances, solid
wastes, and liquid and gaseous matters by Seller and by any other person in
relation to Seller or the Stations, including, without limitation, any liability
or obligation for cleaning up waste disposal sites from or related to acts or
omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with
negotiating, preparing, closing, and carrying out this Agreement and the
transactions contemplated by this Agreement, including, without limitation, the
fees and expenses of Seller's attorneys, accountants, consultants and brokers.
ARTICLE 3
CONSIDERATION
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3.1 Delivery of Consideration. In exchange for the Station Assets, in
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addition to the assumption of certain obligations of Seller pursuant to Section
2.1 above, Buyer shall, subject to Articles 11 and 12 hereof, at the Closing (as
hereinafter defined) deliver to Seller: Ten Million Dollars ($10,000,000.00)
(subject to adjustment, the "Purchase Price"); by wire transfer of immediately
available funds, adjusted pursuant to the provisions of Sections 3.3 and 3.4.
3.2 Allocation of Consideration. Buyer and Seller shall use their best
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efforts to negotiate an agreed allocation of the total consideration among the
Station Assets (the "Allocation"). If the Allocation is not agreed upon
fourteen (14) days prior to Closing, Buyer shall order an appraisal of the
Station Assets from Broadcast Investments Analysts ("BIA") and BIA will
determine the Allocation. Buyer and Seller agree to prepare and file all income
tax returns (including, if
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applicable, Form 8594) in a manner consistent with the Allocation and will not
in connection with the filing of such returns make any allocation that is
contrary to the Allocation. Buyer and Seller agree to consult with each other
with respect to all issues related to the Allocation in connection with any tax
audits, controversy or litigation. The fees for BIA will be borne equally by
Buyer and Seller.
3.3 Allocations and Prorations.
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3.3.1 The operation of the Stations and the income and expenses
attributable thereto through 11:59 p.m. on the Closing Date (the "Effective
Time") shall be for the account of Seller and thereafter shall be for the
account of Buyer. Expenses for goods and services received both before and after
the Effective Time, utilities charges, ad valorem, real estate, property and
other taxes (other than income taxes, which shall be Seller's sole
responsibility for all taxable periods ending prior to and including the Closing
Date, and those taxes arising from the sale and transfer of the Station Assets,
which shall be paid as set forth in Section 13.2), income and expenses under the
Contracts (other than Trade Agreements), prepaid expenses, music and other
license fees (including any retroactive adjustments thereof), wages, salaries,
and other employee benefit expenses (whether such wages, salaries or benefits
are current or deferred expenses) (including, without limitation, liabilities
accrued up to the Effective Time for bonuses, commissions, vacation pay, payroll
taxes, workers' compensation and social security taxes) and rents and similar
prepaid and deferred items shall be prorated between Seller and Buyer in
accordance with the foregoing. Notwithstanding the foregoing, no proration shall
be made with respect to (i) severance or sick leave with respect to any employee
or (ii) any prepaid expense or other deferred item unless Buyer will receive a
benefit in respect of such prepayment or deferral after the Effective Time. For
purposes of this Section 3.3.1, ad valorem and other real estate taxes shall be
apportioned on the basis of the taxes assessed for the
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most recently-completed calendar year, with a reapportionment as promptly as
practicable after the tax rates and real property valuations for the calendar
year in which the Closing occurs can be ascertained. In addition, Buyer shall be
entitled to a credit in this proration process for the amount of any taxes (or
other governmental charges) that are due and payable by Seller, but are being
contested by Seller in good faith in appropriate proceedings and are secured by
Liens on the Station Assets that have not been removed as of or before the
Closing (but once such amounts are finally determined, Buyer shall use such
credit to remove such liens and return to the excess of (i) the amount of such
credit minus (ii) the amount of such taxes or other governmental charges as
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finally determined, or Seller shall pay to Buyer the deficiency, as
appropriate).
3.3.2 Allocation and proration of the items set forth in Subsection
3.3.1 above shall be made by Buyer and a statement thereof given to Seller
within thirty (30) days after the Closing Date. Seller shall give written notice
of any objection thereto within twenty (20) business days after delivery of such
statement, detailing the reason for such objection and stating the amount of the
proposed final allocation and proration. If a timely objection is made and the
parties cannot reach agreement within thirty (30) days after receipt of the
objection as to the amount of the final allocation and proration, the matter
shall be referred to Xxxxxx Xxxxxxxx, L.L.P. (the "Independent Auditor") to
resolve the matter, whose decision will be final and binding on the parties, and
whose fees and expenses shall be borne by Buyer and Seller in accordance with
the following: each party shall pay an amount equal to the sum of all fees and
expenses of the Independent Auditor on a proportional basis taking into account
the amount of the net allocation and proration proposed by each of Buyer and
Seller and the amount of the final allocation and proration determined by the
Independent Auditor (for example, if Buyer proposed a payment of $10 to Seller,
Seller proposed a payment of
10
$100, and the Independent Auditor proposed a payment of $30, Buyer would pay
20/90ths of the Independent Auditor's fees and Seller would pay 70/90ths of
those fees based on the $90 in dispute between the parties). Within five
business days following a final determination hereunder, the party obligated to
make payment will make the payments determined to be due and owing in accordance
with this Section 3.3
3.3.3 In addition to the adjustments made pursuant to Sections
3.3.1 and 3.3.2, the Purchase Price shall be increased as follows:
(i) At Closing, Seller shall deliver to Buyer a detailed
statement of Seller's accounts receivable from the Station's operations through
the Closing Date (the "Receivables Statement"). The Receivables Statement shall
identify accounts receivable by customer name and by amount owed, and shall
segregate accounts receivable outstanding for more than 120 days from accounts
receivable outstanding for 120 days or less. The Receivables Statement shall be
certified as complete and correct by Seller's Chief Financial Officer.
(ii) The Purchase Price shall be increased by an amount that
is 0.85 times the total amount of Seller's accounts receivables that have been
outstanding for 120 days or less, as indicated on the Receivables Statement.
(iii) The amounts due Seller under this Section 3.3.3 shall
be paid within five (5) business days after Buyer's receipt of the Receivables
Statement.
ARTICLE 4
CLOSING
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4.1. Closing. The consummation of the transactions contemplated herein
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(the "Closing") shall occur, except as otherwise mutually agreed upon by Buyer
and Seller (i) within ten (10) business days after the FCC Consents (as
hereinafter defined) to the assignment of the Station Licenses have become Final
Orders (as hereinafter defined) or (ii) at such later date that all other terms
and conditions as set forth in Articles 11 and 12 have been satisfied, or (iii)
such other date as may be mutually agreed to by the parties ("Closing Date").
For purposes of the Agreement, "Final Order" means action by the FCC granting an
application contemplated by this Agreement which is not reversed, stayed,
enjoined, set aside, annulled or suspended, and with respect to which action no
timely request for stay, petition for rehearing, or reconsideration, application
for review or appeal is pending, and as to which the time for filing any such
request, petition or appeal or reconsideration by the FCC on its own motion has
expired. The Closing shall be held at a mutually agreeable location.
ARTICLE 5
GOVERNMENTAL CONSENTS
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5.1 FCC Consent. It is specifically understood and agreed by Buyer and
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Seller that the Closing and the assignments of the Station Licenses and the
transfer of the Station Assets are expressly conditioned on and are subject to
the prior consent and approval of the FCC ("FCC Consent").
5.2 FCC Applications. Within five (5) business days after the execution
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of this Agreement, Buyer and Seller shall file applications with the FCC for the
FCC Consent ("FCC Applications"). Buyer and Seller shall prosecute the FCC
Applications with all reasonable diligence and otherwise use their best efforts
to obtain the FCC Consent as expeditiously as practicable.
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SELLER
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6.1 Representations and Warranties of Seller. Seller represents and
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warrants to the Buyer the following:
6.1.1 Organization, Good Standing, Etc. (i) Seller is a
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corporation duly organized and validly existing under the laws of the state of
Delaware, has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being conducted and
is duly qualified to do business in each jurisdiction in which the nature of
its business or the ownership or leasing of its properties makes such
qualification necessary.
(ii) Seller has all requisite corporate power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Seller and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of Seller. This Agreement has been
duly executed and delivered by Seller and constitutes the legal, valid and
binding obligation of Seller, enforceable against it in accordance with its
terms.
6.1.2 Authority. Assuming the consents contemplated by Sections
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6.1.2 and 6.1.14 are obtained, neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will (i)
violate, conflict with or result in any breach of any provision of the Article
of Incorporation or Bylaws of Seller, (ii) violate, conflict with or result in a
violation or breach of, or constitute a default (with or without due notice or
lapse of time or both) under, or permit the termination of, or result in the
acceleration of, or entitle any party to accelerate (whether as a result of the
sale of the Station Assets or otherwise) any material obligation, or result
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in the loss of any material benefit, or give rise to the creation of any
material lien, charge, security interest or encumbrance upon any of the
properties or assets of any Seller or any of its subsidiaries under any of the
terms, conditions or provisions of any loan or credit agreement, note, bond,
mortgage, indenture or deed of trust, or any material license, lease, agreement
or other material instrument or obligation to which any of them is a party or by
which they or any of their properties or assets may be bound or affected; (iii)
violate any order, writ, judgment, injunction, decree, statute, rule or
regulation, of any court, administrative agency or commission or other
governmental authority or instrumentality (a "Governmental Entity") applicable
to Seller or any of its properties or assets. No consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Entity is required by or with respect to Seller in connection with the execution
and delivery of this Agreement by Seller or the consummation by Seller of the
transactions contemplated hereby, except for consents of the FCC to the
assignments of the Station Licenses (as defined in Section 1.1.1).
6.1.3 Financial Statements. Attached as Exhibit 6.1.3 are copies
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of the Stations' unaudited balance sheet as of December 31, 1998, and the
related income statements and the internally prepared financial statements
including income statements (such financial statements collectively being
referred to as the "Seller's Financial Statements"). The Seller's Financial
Statements, were prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods covered thereby
and present fairly, in all material respects, the consolidated financial
position and results of operations of the Stations as of such dates and for the
periods then ended (subject, in the case of the unaudited Seller's Financial
Statements, to the absence of notes and to normal, recurring adjustments that
would not be material in the aggregate).
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6.1.4 Absence of Undisclosed Liabilities. There are no material
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liabilities of any kind whatsoever with respect to the Stations (whether
absolute, accrued, contingent or otherwise, and whether due or to become due),
other than liabilities and obligations (i) provided for or reserved against in
the Seller's Financial Statements or (ii) arising after December 31, 1998, in
the ordinary course of business and consistent with past experience.
6.1.5 Compliance with Applicable Laws; FCC Matters. (i) Except as
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permitted or contemplated hereby, the operations of the Stations have been and
now are being conducted in substantial compliance with each law, ordinance,
regulation, judgment, decree, injunction, rule or order of the FCC or any other
Governmental Entity binding on Seller, the Stations or their respective
properties or assets. No investigation or review by any Governmental Entity with
respect to Seller or the Stations is pending or, to the Seller's knowledge, is
threatened. Without limiting the generality of the foregoing and with respect to
the Stations, the Stations comply in all material respects with the
Communications Act of 1934, as amended (the "Communications Act"), all rules,
regulations and written policies of the FCC thereunder, all obligations with
respect to equal opportunity under applicable law, and all rules and regulations
of the FCC and the Federal Aviation Administration applicable to the towers used
by the Stations (including all rules regulating hazards to air navigation,
registration of radio towers, and exposure of humans to non-ionizing radio
frequency radiation). In addition, Seller has duly and timely filed, or caused
to be filed, with the appropriate Governmental Entities all applications,
reports, statements, fees, documents, registrations, filings or submissions with
respect to the operations of the Stations and the ownership thereof, including,
without limitation, applications for renewal of authority required by applicable
law to be filed. All such filings complied in all material respects with
applicable laws when made and no material
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deficiencies have been asserted with respect to any such filings. All the
material required by 47 C.F.R. (S) 73.3526 to be kept in the public inspection
files of the Stations is in such files. Except as disclosed on Schedule 6.1.5,
Seller has no knowledge of any fact or circumstance relating to Seller or the
Stations arising from noncompliance with the Communications Act, or the rules,
regulations or written policies of the FCC in effect on the date of this
Agreement that could reasonably be expected to (a) disqualify Seller from
assigning the Station Licenses to the Buyer or (b) prevent or delay the
consummation by them of the transactions contemplated by this Agreement.
(ii) Schedule 1.1.1 lists (a) all licenses, permits and other
authorizations (including all STL licenses and construction permits) issued by
the FCC relating to the Stations as of the date of this Agreement and (b) all
licenses, permits, or authorizations issued by any other Governmental Entities
which are material to the operations of the Stations as of the date of this
Agreement. Such licenses, permits and authorizations, and all applications for
modification, extension or renewal thereof or for new licenses, permits,
permissions or authorizations that would be material to the operations of the
Stations, are collectively referred to herein as the Station Licenses (as
further defined in Section 1.1.1), each of which is in full force and effect.
The Stations have been operated in all material respects in accordance with the
terms of the Station Licenses. Except for proceedings affecting the radio
broadcast industry generally, there are no proceedings pending or, to the
Seller's knowledge, threatened with respect to ownership or operation of the
Stations which reasonably may be expected to result in the revocation, material
adverse modification, non-renewal or suspension of any of the Station Licenses,
the denial of any pending applications for Station Licenses, the issuance of any
cease and desist order, or the imposition of any administrative actions by the
FCC or any other Governmental Entity with respect to the Station Licenses, or
which
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reasonably may be expected to adversely affect the Stations' ability to operate
as currently operated or the Buyer's ability to obtain assignment of the Station
Licenses. With the exception of operations pursuant to any existing STAs set out
in Section 1.1.1 hereto, and with the further exception of such temporary
reduced power operations as are necessary for routine maintenance, the Stations
operate in conformity with the Station Licenses and within the operating power
tolerances specified in 47 C.F.R. (S) 73.1560(b). Except as noted in Schedule
6.1.5 and to the best of Seller's knowledge, no other broadcast station or radio
communications facility is causing interference to the Stations' transmissions
beyond that which is allowed by FCC rules and regulations.
6.1.6 Litigation. Except as disclosed on Schedule 6.1.6, (i)
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there is no action, suit, inquiry, judicial or administrative proceeding, or
arbitration pending or, to the knowledge of Seller, threatened against Seller or
the Stations or any of their respective properties or assets by or before any
arbitrator or Governmental Entity nor are there any investigations relating to
Seller or the Stations or any of their respective properties or assets pending
or threatened by or before any arbitrator or Governmental Entity; (ii) there is
no judgment, decree, injunction, or order of any Governmental Entity or
arbitrator outstanding against Seller or the Stations or any of their respective
properties or assets and; (iii) there is no action, suit, inquiry, judicial or
administrative proceeding pending or threatened against Seller or the Stations
by a third party relating to the Seller or the Station Assets or any of the
transactions contemplated by this Agreement.
6.1.7 Insurance. Schedule 6.1.7 sets forth a list of all fire,
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liability and other forms of insurance and all fidelity bonds held by or
applicable to the Stations setting forth in respect of each such policy the
policy name, policy number, carrier, term, type of coverage and annual premium.
No event has occurred, including, without limitation, the failure to give any
notice or
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information, or the delivery of any inaccurate or erroneous notice or
information, which limits or impairs the rights of the insured parties under any
such insurance policies. Seller shall cause comparable policies of insurance to
remain in effect for acts, omissions and events occurring on or prior to the
Closing Date.
6.1.8. Real Estate. No person or entity other than Seller has any
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interest in any of the real property used in the operation of the Stations,
except as set forth in one of the schedules to this Agreement. Seller has good
and marketable title to the Owned Real Estate and valid leaseholds in the Leased
Real Estate, free and clear of any Liens except for the Permitted Liens. The
buildings (or portions thereof), improvements and fixtures that are included in
the Real Estate are suitable for their intended use. Seller has a valid
contractual right to use adequate routes of ingress and egress to, from and over
all of the Real Estate necessary to operate the Stations. Other than Permitted
Liens and matters disclosed in Schedule 6.1.8, no improvement on any of the Real
Estate encroaches upon any adjacent real property of any other person or entity.
Schedules 1.1.7 and 1.1.8 provide the street addresses and/or legal descriptions
of the Real Estate.
6.1.9 Personal Property. Schedule 1.1.2 hereto contains a list of
-----------------
all material tangible personal property and assets owned or held by Seller, and
used in the conduct of the business and operations of the Stations (other than
Real Estate, which is addressed in the foregoing Section 6.1.8). Except as
disclosed in Schedule 1.1.2, Seller owns and has good and marketable title to
all property referred to in the immediately preceding sentence and none of
such property is, subject to any Liens, other than Permitted Liens. The
tangible personal property and fixtures owned or used or to be acquired by
Seller, and necessary for the operation of the Stations, are in good operating
condition (subject to normal wear and tear) and are sufficient to permit the
conduct of the
18
business of the Stations in compliance with FCC rules and regulations. At
Closing, Seller shall own or hold under valid leases all of the tangible
personal property listed in Schedule 1.1.2 and this shall include all of the
tangible personal property and fixtures necessary to conduct the business of the
Stations as presently conducted. The Station Assets to be transferred hereunder
constitute all of the assets, rights and properties that are required for the
operation of the Stations in compliance with FCC rules and regulations and as it
is now conducted.
6.1.10 Liens and Encumbrances. All of Seller's properties and
----------------------
assets relating to the Stations, including leases, are free and clear of all
liens, pledges, claims, security interests, restrictions, mortgages, tenancies
and other possessory interests, conditional sale or other title retention
agreements, assessments, easements, rights of way, covenants, restrictions,
rights of first refusal, defects in title, encroachments and other burdens,
options or encumbrances of any kind (collectively, "Liens") except (i) statutory
Liens securing payments not yet delinquent or the validity of which are being
contested in good faith by appropriate actions, (ii) Liens for taxes not yet
delinquent, (iii) Liens securing indebtedness, all of which Liens will be
discharged by Seller at the Closing upon repayment of all amounts due and owing,
(iv) Liens incurred in the usual and normal conduct of the business of the
Station, which in the aggregate do not materially detract from the value or
materially impair the present and continued use of the properties or assets
subject thereto, (v) Liens on leases arising from the provisions of such lease,
and (vi) zoning ordinances (the Liens referred to in clauses (i) through (vi)
being "Permitted Liens").
6.1.11 Environmental Matters
---------------------
During the period Seller has owned or leased any Real Estate and, to
the best of Seller's knowledge, at all other times:
19
(i) The Real Estate used in connection with the Stations and the
operations thereon is, and with respect to any predecessor or prior owner,
operator or lessee (each a "Predecessor") has been, in substantial compliance
with all applicable federal, state and local statutes, codes, rules or
regulations as well as common law decisions relating to the environment, natural
resources and public or employee health and safety ("Environmental Laws");
(ii) No judicial or administrative proceedings are pending
or threatened against Seller or any of the Real Estate used in connection with
the Stations alleging the violation of or seeking to impose liability pursuant
to any Environmental Law. No notice or claim from any Governmental Entity or
other person has been given to Seller claiming violation of or alleging any
liability under remediation of any Environmental Laws in connection with any of
the Real Estate used in connection with the Station or operations thereon;
(iii) There are no facts, circumstances or conditions on the Real
Estate or the operations thereon used in connection with the Stations or the
operations thereon that are reasonably likely to give rise to an environmental
claim or result in Environmental Costs and Liabilities;
(iv) All substances, materials or waste that are regulated by
federal, state or local government, as well as any petroleum or petroleum
derived product, used or generated by Seller or by any Predecessor in connection
with the Leased Real Estate used in connection with the Station ("Hazardous
Substances"), have been stored, used, treated, and disposed of by such persons
or on their behalf in such manner as not to result in any material Environmental
Costs or Liabilities. "Environmental Costs and Liabilities" means any losses,
including environmental remediation costs,
20
liabilities, obligations, damages, fines, penalties or judgments, arising from
or under any Environmental Law or order of or agreement with any Governmental
Entity or other person;
(v) There are not now, nor have there been in the past, on, in or
under any Real Estate used in connection with the Stations when owned, leased or
operated by Seller or, when owned, leased or operated by any Predecessor, any of
the following: any (a) underground storage tanks, above-ground storage tanks,
dikes or impoundments containing Hazardous Substances, (b) asbestos containing
materials, (c) polychlorinated biphenyls or (d) radioactive substances; and
(vi) The Stations' operations do not have a significant
environmental impact, as defined by 47 C.F.R. (S) 1.1307, that might otherwise
require the filing of an environmental assessment under 47 C.F.R. (S)1.1308.
6.1.12 Taxes. (i) All Tax Returns (as defined in sub-section (vii)
-----
below) that are required to be filed on or before the execution of this
Agreement by Seller, have been duly filed on a timely basis under the statutes,
rules and regulations of each applicable jurisdiction. All such Tax Returns are
complete and accurate. Except as set forth on Schedule 6.1.12, all Taxes,
whether or not reflected on the Tax Returns, which are due with respect to the
Seller and any Affiliates have been timely paid by the Seller and/or any such
Affiliates, whether or not such Taxes are disputed. For the purposes of this
Section, Affiliates shall mean any entity that files a consolidated tax return
with Seller.
(ii) No claim for assessment or collection of Taxes has been
asserted against Seller or any Affiliates. Neither of Seller nor any of its
Affiliates is a party to any pending audit, action, proceeding or investigation
by any Governmental Entity for the assessment or
21
collection of Taxes nor does Seller or any Affiliate have knowledge of any
threatened audit, action, proceeding or investigation.
(iii) Neither Seller nor any of its Affiliates has waived or
extended any statutes of limitation for the assessment or collection of Taxes.
No claim has ever been made by a Governmental Entity in a jurisdiction where
Seller or any Affiliate does not currently file Tax Returns that any of Seller
or its Affiliates is or may be subject to taxation by that jurisdiction. Nor is
Seller or any of its Affiliates aware that any such assertion of tax
jurisdiction is pending or threatened. No Liens, other than Permitted Liens
(whether filed or arising by operation of law) have been imposed upon or
asserted against any of the assets of the Stations as a result of or in
connection with any failure, or alleged failure to pay any Tax.
(iv) Seller has withheld and paid all Taxes required to be
withheld in connection with any amounts paid or owing to any employee, creditor,
independent contractor or other third party.
(v) Seller is not a foreign person within the meaning of Section
1445 of the Internal Revenue Code (the "Code").
(vi) No payment described in this Agreement is subject to Section
280G of the Code.
(vii) For purposes of this Agreement, the terms "Tax" and "Taxes"
shall mean all federal, state, local, or foreign income, payroll, Medicare,
withholding, unemployment insurance, social security, sales, use, service,
service use, leasing, leasing use, excise, franchise, gross receipts, value
added, alternative or add-on minimum, estimated, occupation, real and personal
22
property, stamp, duty, transfer, workers' compensation, severance, windfall
profits, environmental (including taxes under Section 59A of the Code), other
tax, charge, fee, levy or assessment of the same or of a similar nature,
including any interest, penalty, or addition thereto, whether disputed or not.
The term "Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes or any amendment thereto,
and including any schedule or attachment thereto.
(viii) The Seller shall, at the Closing, deliver to Buyer
a certificate (or certificates) in a form reasonably acceptable to Buyer's
counsel stating that no tax subject to any applicable transferee or successor
liability tax provision pursuant to Pennsylvania Statutes is due from the Seller
(the "No Tax Due Certificate") arising from the operations of the Stations prior
to Closing Date.
6.1.13 Personnel. Attached as Schedule 6.1.13 is a complete and
---------
correct list as of August 1, 1999 of the names, positions, and location of all
employees or other station and broadcast personnel (whether employees or
independent contractors or employees of a time broker) of the Stations. The
Seller has provided a list to Buyer which sets forth the current salaries of all
such employees and the other compensation arrangements with all General
Managers, Station Managers, General Sales Managers, Local Sales Managers,
National Sales Managers, Program Directors, Business Managers and Traffic
Managers (collectively, "Station Management") and all on-the-air broadcast
personnel of the Stations and indicates which of those employees, Station
Management or on-the-air broadcast personnel is a party to an employment or
consulting or similar contract with that is not terminable upon not more than 60
days notice without additional cost to the employer.
23
6.1.14 Contracts The Contracts are the only contractual agreements
---------
necessary to carry out the business and operations of the Stations as currently
conducted. Each Contract with respect to the Stations is a valid and binding
obligation of Seller, and is in full force and effect. Seller and each other
party to such Contract with respect to the Stations have performed in all
material respects the obligations required to be performed by them and are not
(with or without lapse of time or the giving of notice, or both) in material
breach or default thereunder. Schedule 1.1.3 identifies, as to each Contract
with respect to the Stations listed thereon, whether the consent of the other
party thereto is required in order for such Contract to continue in full force
and effect upon the consummation of the transactions contemplated hereby.
6.1.15 ERISA Compliance. Neither Seller nor any other trades or
----------------
businesses under common control within the meaning of Section 4001(b)(1) of
ERISA (collectively, the "ERISA Group") has contributed or been obligated to
contribute to any "multi employer plan" as such term is defined in Section 3(37)
or Section 4001 (a)(3) of ERISA except as disclosed on Schedule 6.1.15. Schedule
6.1.15 lists all "employee benefit plans" within the meaning of Section 3(3) of
ERISA and bonus, pension, profit sharing, deferred compensation, incentive
compensation, stock ownership, stock purchase, stock option, phantom stock,
retirement, vacation, severance, disability, death benefit, hospitalization,
insurance or other plan or arrangement or understanding providing benefits to
any present or former employee or contractor of the Stations maintained by
Seller, or as to which Seller (with respect to such individuals) has any
liability or obligation (collectively, "Employee Benefit Plans").
6.1.16 Labor Seller has not agreed to recognize any union or other
-----
collective bargaining unit, nor has any union or other collective bargaining
unit been certified as representing
24
any of Seller's employees. Except as disclosed on Schedule 6.1.16, Seller, with
respect to the Stations, (i) is and has been in substantial compliance with all
applicable laws regarding employment and employment practices, terms and
conditions of employment, wages and hours, and plant closing, occupational
safety and health and workers' compensation and is not engaged, nor has it
engaged, in any unfair labor practices; (ii) has no, and has not had any unfair
labor practice charges or complaints pending or threatened against it before the
National Labor Relations Board; (iii) has no and has not had any grievances
pending or threatened against it; and (iv) has no, and has not had any charges
pending or threatened against it before the Equal Employment Opportunity
Commission or any state or local agency responsible for the prevention of
unlawful employment practices. There is no labor strike, slowdown, work stoppage
or lockout actually pending or threatened against or affecting the Stations. No
union organizational campaign or representation petition is currently pending
with respect to the employees working for the Stations.
6.1.17 Patents, Trademarks, Etc. Schedule 1.1.4 sets forth all
-------------------------
call letters, patents, patent applications, trademarks, trade names, Internet
domain names, service marks, trade secrets, applied for, issued, owned or used
copyrights and other proprietary Intellectual Property used in the operation of
the Stations (whether owned, leased or licensed). Seller has not received any
notice of any claimed conflict, violation or infringement of such Intellectual
Property rights. To the best knowledge of Seller, none of such material
Intellectual Property rights is being infringed by any third party.
6.1.18 Absence of Certain Changes or Events. Except as
------------------------------------
contemplated or expressly permitted by this Agreement, since December 31, 1998
there has not been (i) any material damage, destruction or loss of any kind with
respect to the Stations not covered by valid and
25
collectible insurance; (ii) with respect to the Stations the execution of any
agreement with any Station management or broadcast personnel (whether an
employee or independent contractor) providing for his/her employment, or any
increase in compensation or severance or termination of benefits payable or to
become payable by Seller, to any officer, Station management, or broadcast
personnel (whether an employee or independent contractor), or any increase in
benefits under any collective bargaining agreement, except in any case in the
ordinary course of business consistent with prior practice and except as
permitted by Section 8.1.1 (x); or (iii) any change by Seller in its financial
or tax accounting principles or methods.
6.1.19 Commission or Finder's Fees. Neither Seller nor any entity
---------------------------
acting on behalf of Seller has agreed to pay a commission, finder's fee or
similar payment in connection with this Agreement or any matter related hereto
to any person or entity.
6.1.20 Full Disclosure. No representation or warranty by Seller
---------------
contained in this Agreement (including the Disclosure Schedules hereto) or in
any certificate furnished pursuant to this Agreement contains or will contain
any untrue statement of a material fact, or omits or will omit to state any
material fact necessary, in light of the circumstances under which it was or
will be made, in order to make the statements herein or therein not misleading.
6.1.21 Seller's Financial Condition. Except as indicated in Schedule
----------------------------
6.1.21, no insolvency proceedings of any character, including, without
limitation, bankruptcy, receivership, reorganization, composition or arrangement
with creditors, voluntary or involuntary, affecting Seller or any of its
respective assets or properties are pending, or threatened, and Seller has not
made any assignment for the benefit of creditors, nor has Seller taken any
action with a view to, or which would constitute a basis for, the institution of
any such insolvency proceedings. Seller shall use the proceeds received
26
under this agreement to pay or to make appropriate provision for the payment of
any and all creditors of Seller prior to making any distribution to its
shareholders.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
7.1 Organization and Standing. Buyer is a limited liability company duly
-------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware.
7.2 Authorization and Binding Obligation. Buyer has all necessary power
------------------------------------
and authority to enter into and perform this Agreement and the transactions
contemplated hereby, and to own or lease the Station Assets and to carry on the
business of the Stations upon the consummation of the transactions contemplated
by this Agreement. Buyer's execution, delivery and performance of this Agreement
and the transactions contemplated hereby have been duly and validly authorized
by all necessary action on behalf of Buyer and constitute the valid and binding
obligation of Buyer, enforceable in accordance with its terms.
7.3 Qualification. To Buyer's knowledge, there is no fact, allegation,
-------------
condition, or circumstance relating to Buyer that could reasonably be expected
to prevent the grant of the FCC Order. Buyer knows of no fact that would, under
the Communications Act of 1934, as amended, or the rules, regulations and
policies of the FCC, disqualify Buyer from becoming the licensee of the
Stations.
7.4 Absence of Conflicting Agreements or Required Consents. Except as set
------------------------------------------------------
forth in Schedule 7.4 hereof, the execution, delivery and performance of this
Agreement by Buyer: (i) do not violate or conflict with any of the terms,
conditions or provisions of the Certificate of Formation or Regulations of
Buyer; (ii) do not require the consent of any third party not affiliated with
Buyer;
27
(iii) will not violate any applicable law, judgment, order, injunction, decree,
rule, regulation or ruling of any governmental authority to which Buyer is a
party; and (iv) will not, either alone or with the giving of notice or the
passage of time, violate the terms, conditions or provisions of, or constitute a
default under, any agreement, instrument, license or permit to which Buyer is
now subject.
7.5 Litigation: Compliance with Law. There is no litigation,
-------------------------------
administrative action, arbitration or other proceeding, or petition, complaint
or investigation before any court or governmental body, pending against Buyer
that would adversely affect Buyer's ability to perform its obligations pursuant
to this Agreement or the agreements to be executed by Buyer in connection
herewith. Buyer has committed no violation of any applicable law, regulation or
ordinance or any other requirement of any governmental body or court which would
have an adverse effect on Buyer or its ability to perform its obligations
pursuant to this Agreement or the agreements to be executed in connection
herewith.
7.6 Commission or Finder's Fees. Neither Buyer nor any entity acting on
---------------------------
behalf of Buyer has agreed to pay a commission, finder's fee or similar payment
in connection with this Agreement or any matter related hereto.
7.7 Full Disclosure. No representation or warranty by Buyer contained in
---------------
this Agreement (including the Disclosure Schedules hereto) or in any certificate
furnished pursuant to this Agreement contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
necessary, in light of the circumstances under which it was or will be made, in
order to make the statements herein or therein not misleading.
ARTICLE 8
28
COVENANTS OF SELLER
-------------------
8.1 Conduct of Station Prior to the Closing Date:
--------------------------------------------
8.1.1 Seller covenants and agrees with Buyer that between the date
of this Agreement and (except as otherwise noted below) the Closing Date, the
Seller, with respect to the Stations shall:
(i) use commercially reasonable efforts to maintain its
present business organization, keep available the services of its present
employees and independent contractors, preserve its relationships with customers
and others having business relationships with the stations, and refrain from
materially and adversely changing any of its business practices and policies
(including but not limited to advertising (including substantially the same
amount of cash expenditure), marketing, pricing, purchasing, personnel, sales,
and budget practices and policies);
(ii) maintain its books of account and records in the
usual and ordinary manner and in accordance with generally accepted accounting
principles;
(iii) notify Buyer if the regular broadcast transmission of
any of the Stations from its main transmitting facilities at full authorized
effective radiated power is interrupted for a period of more than five
consecutive hours or for an aggregate of 10 or more hours in any continuous
three-day period;
(iv) operate in the usual and ordinary course of business
in accordance with past practice and conduct its business in all material
respects in compliance with the terms of the Station Licenses and all applicable
laws, rules, and regulations, including, without limitation, the applicable
rules and regulations of the FCC;
29
(v) use, repair, and, if necessary, replace any of the
Stations' studio and transmission assets in a reasonable manner consistent with
historical practice and maintain their assets in substantially its current
condition, ordinary wear and tear excepted;
(vi) maintain insurance in accordance with Section 6.1.7;
(vii) not, without Buyer's prior consent, incur any debts,
obligations, or liabilities (absolute, accrued, contingent, or otherwise) that
include obligations (monetary or otherwise) to be performed by Buyer that exceed
Ten Thousand Dollars ($10,000) individually or Twenty-Five Thousand Dollars
($25,000) in the aggregate;
(viii) not lease, mortgage, pledge, or subject to a lien,
claim, or encumbrance (other than Permitted Liens ) any of the Station Assets or
sell or transfer any of the Station Assets without replacing such Station Assets
with an asset of substantially the same value and utility;
(ix) without the prior consent of Buyer, (a) not modify or
extend any Contracts or (b) enter into any new Contract the payments under which
exceed Ten-thousand Dollars ($10,000) individually or Twenty-five Thousand
Dollars ($25,000) in the aggregate;
(x) not make or grant any general wage or salary increase
or generally materially modify the employees' terms and conditions of
employment, and with respect to any Station Management and on-air personnel,
Seller shall not make or grant any wage or salary increase or modify any terms
and conditions of employment other than consistent with past practice without
the prior consent of Buyer; provided, however, that Seller shall be permitted to
make bonus payments to any employees including Station Management and on-air
personnel;
30
(xi) not make any change in the accounting principles,
methods, or practices followed by it or depreciation or amortization policies or
rates;
(xii) not make any loans or make any dividends or
distributions other than of Excluded Assets;
(xiii) other than in the ordinary course of business, not
cancel or compromise any debt or claim, or waive or release any right, of
material value;
(xiv) not disclose to any person (other than Buyer and its
representatives) any confidential or proprietary information;
(xv) maintain the present format of the Stations, with
programming consistent with past practices; provided however Seller may make
material changes in the Station's format and/or programming with Buyer's prior
consent;
(xvi) other than in the ordinary course of business, not
increase the number of regularly scheduled commercial units run during the day-
parts on the Stations (other than changes in the number of commercial units run
during any day-part as a result of operating difficulties that require
commercial units to be broadcast at times other than as scheduled); or
(xvii) agree to do any of the foregoing.
8.2 Seller shall (i) give or cause the Stations to give Buyer and Buyer's
counsel, accountants, engineers and other representatives, including
environmental consultants, reasonable access during normal business hours to
all of Seller's properties, books, Contracts, Trade Agreements, reports and
records including financial information and tax returns relating to the
Stations, and to all real estate, buildings and equipment relating to the
Stations, in order that Buyer may have full opportunity to make such
investigation, including but not limited to, environmental
31
assessments, as it desires of the affairs of the Stations and (ii) furnish Buyer
with information, and copies of all documents and agreements including but not
limited to financial and operating data and other information concerning the
financial condition, results of operations and business of the Stations, that
Buyer may reasonably request. The rights of Buyer under this Section shall not
be exercised in such a manner as to interfere unreasonably with the business of
the Stations.
8.2.1 Interim Financial Statements. Seller shall promptly deliver
----------------------------
to Buyer copies of any monthly, quarterly or annual financial statements
relating to the Stations' operations that may be prepared or received by Seller
during the period from the date hereof through the Closing Date. Such financial
statements shall fairly present the financial position and results of operations
of the Stations as at the dates and for the periods indicated, and if prepared
by or on behalf of Seller, shall be prepared on a basis consistent and in
accordance with the basis upon which the financial statements in Section 6.1.3
were prepared.
8.3 Other Consents. Seller will use its best efforts to obtain all
--------------
consents, authorizations, or approvals required for the consummation of the
transactions contemplated by this Agreement.
8.4 No Inconsistent Action. Seller shall not take any action which is
----------------------
inconsistent with its obligations under this Agreement.
8.5 Notification. Seller shall promptly notify Buyer in writing of (i)
------------
the failure of Seller or any employee or agent of Seller to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with hereunder; (ii) the occurrence of any event that would entitle
Buyer to terminate this Agreement pursuant to Section 15.1; or (iii) any overt
threat or actual resignation or termination of any Station Management or over-
the-air personnel at the Stations.
32
8.6 Updating of Schedules. From time to time prior to the Closing, Seller
---------------------
will supplement or amend the Schedules delivered in connection herewith with
respect to any matter which exists or occurs after the date of this Agreement
and which, if existing or occurring at or prior to the date of this Agreement,
would have been required to be set forth or described in such Schedules or which
is necessary to correct any information in such Schedules which has been
rendered inaccurate thereby. The provisions of this Section are informational
only and Buyer shall not be bound to the terms of any changed Schedules unless
they are incorporated into this Agreement by a written amendment signed by
Buyer.
8.7 Enforcement of Agreements. [INTENTIONALLY OMITTED]
--------------------------
8.8 FCC Filings. Seller shall file or cause to be filed on a current
-----------
basis until the Closing Date all applications, fees, reports and documents
required to be filed with the FCC with respect to the Stations. Copies of each
such application, fee filing, report and document filed between the date hereof
and the Closing Date shall be furnished to Buyer promptly after its filing.
8.9 Updating of Information. Between the date of this Agreement and the
-----------------------
Closing Date, Seller will deliver to Buyer, on a monthly basis within thirty
(30) days of the end of each month, information relating to the operation of the
Stations, including monthly sales reports and such other financial information
that may be reasonably requested.
8.10 Indemnification.
---------------
(i) For a period of one (1) year after the Closing Date, Seller shall
indemnify and hold Buyer, its affiliates, and its assigns harmless from and
against all costs, losses and damages (including reasonable attorney fees)
incurred by Buyer or such affiliates or assigns as a result of or arising out of
(a) the breach by Seller of any of its representations and warranties contained
in this
33
Agreement, (b) the failure by Seller to perform its covenants set forth in this
Agreement, (c) the conduct of the operations of the Stations or the use or
ownership of the Station Assets on or before the Closing Date, including any and
all liabilities arising under any of the Station Licenses or Contracts which
relate to events occurring prior to the Closing Date, and (d) any and all
obligations or liabilities of Seller under any contract or agreement not
expressly assumed by Buyer pursuant to the terms hereof.
(ii) Buyer shall be entitled to payment pursuant to the terms of this
Section 8.10 for all amounts due to Buyer with respect to any claim by Buyer
against Seller for liabilities of Seller payable under this Section with respect
to breaches of representations and warranties of Seller.
(iii) Seller covenants that, for a period of one (1) year following the
Closing, Seller shall (a) retain its corporate existence and (b) maintain its
finances such that Seller's balance sheet continuously reflects the availability
of at least $164,000 in unencumbered liquid assets over and above the amount of
Seller's current liabilities.
ARTICLE 9
COVENANTS OF BUYER
------------------
9.1 Notification. Buyer shall promptly notify Seller in writing of (i)
------------
any litigation, arbitration or administrative proceeding pending or, to its
knowledge, threatened against Buyer which challenges the transactions
contemplated hereby or (ii) the failure of Buyer, or any employee or agent of
Buyer to comply with or satisfy in any material respect any covenant, condition
or agreement to be complied with or be satisfied by it hereunder and (iii) the
occurrence of any event that would entitle Seller to terminate this Agreement
pursuant to Section 15.1.
34
9.2 No Inconsistent Action. Buyer shall not take any action which is
----------------------
inconsistent with its obligations under this Agreement.
9.3 Post-Closing Access. Buyer, for a period of three (3) years
-------------------
following the Closing Date, shall make available during normal business hours
for audit and inspection by Seller and its representatives, for any reasonable
purpose and upon reasonable notice, all records, files, documents and
correspondence transferred to it hereunder relating to the pre-closing period.
All information, records, files, documents and correspondence made available or
disclosed under this Section 9.3 shall be kept confidential.
9.4 Other Consents. Buyer will use its best efforts to obtain all
--------------
necessary consents, authorizations, or approvals, in each case, required for
Buyer's consummation of the transactions contemplated by this Agreement.
9.5 Indemnification.
---------------
(i) For a period of one (1) year after the Closing Date, Buyer shall
indemnify and hold Seller, its affiliates, and its assigns harmless from and
against all costs, losses and damages (including reasonable attorney fees)
incurred by Seller or such affiliates or assigns as a result of or arising out
of (a) the breach by Buyer of any of its representations and warranties
contained in this Agreement, (b) the failure by Buyer to perform its covenants
set forth in this Agreement, (c) the conduct of the operations of the Stations
or the use or ownership of the Station Assets on or after the Closing Date,
including any and all liabilities arising under any of the Station Licenses or
Contracts which related to events occurring subsequent to the Closing Date, and
(d) any and all obligations or liabilities of Seller under any contract or
agreement assumed by Buyer pursuant to the terms hereof.
35
(ii) Seller shall be entitled to payment pursuant to the terms of this
Section 9.5 for all amounts due to Seller with respect to any claim by Seller
against Buyer for liabilities of Buyer payable under this Section with respect
to breaches of representations and warranties of Buyer.
ARTICLE 10
JOINT COVENANTS
---------------
Buyer and Seller covenant and agree that they shall act in accordance with
the following:
10.1 Confidentiality. Buyer and Seller shall each keep confidential all
---------------
information obtained by them with respect to the other party hereto in
connection with this Agreement and the negotiations preceding this Agreement,
and will use such information solely in connection with the transactions
contemplated by this Agreement, and if the transactions contemplated hereby are
not consummated for any reason, each shall return to each other party hereto,
without retaining a copy thereof, any schedules, documents or other written
information obtained from such other party in connection with this Agreement and
the transactions contemplated hereby except to the extent required or useful in
connection with any claim made with respect to the transactions contemplated by
this Agreement or the negotiation thereof. Notwithstanding the foregoing, no
party shall be required to keep confidential or return any information which (i)
is known or available through other lawful sources, not bound by a
confidentiality agreement with the disclosing party, or (ii) is or becomes
publicly known through no fault of the receiving party or its agents, or (iii)
is required to be disclosed pursuant to an order or request of a judicial or
government authority (provided the non-disclosing party is given reasonable
prior notice such that it may seek, at its expense, confidential treatment of
the information to be disclosed), (iv) is developed by the receiving party
independently
36
of the disclosure by the disclosing party or (v) is required to be disclosed
under applicable law or rule, as determined by counsel for the receiving party.
10.2 Cooperation. Buyer and Seller shall cooperate fully with one another
-----------
in taking any actions, including actions to obtain the required consent of any
governmental instrumentality or any third party necessary or helpful to
accomplish the transactions contemplated by this Agreement.
10.3 Control of Station. Prior to Closing, Buyer shall not, directly or
------------------
indirectly, control or direct the operations of the Stations.
10.4 Bulk Sales Laws. Buyer hereby waives compliance by Seller with the
---------------
provisions of the "bulk sales" or similar laws of any state. Seller shall
indemnify Buyer and hold it harmless from any and all loss, cost, damage and
expense (including but not limited to, reasonable attorney's fees) sustained by
Buyer as a result of any failure of Seller to comply with any "bulk sales" or
similar laws.
10.5 Public Announcements. Neither Buyer nor Seller shall issue any press
--------------------
release or make any disclosure with respect to the transaction contemplated by
this Agreement without the prior written approval of the other party, except as
may be required by applicable law or by obligations pursuant to any listing
agreement with any securities exchange or any stock exchange regulations.
10.6 Xxxx-Xxxxx-Xxxxxx [Intentionally Omitted]
-----------------
10.7 Employee Matters. (i) Commencing upon the grant of the Application
----------------
for consent to assign the licenses, Seller shall make available the Stations'
personnel during normal business hours for Buyer to interview prior to the
Closing Date. Buyer shall notify Seller three (3) days prior to Closing of the
names of the employees to whom Buyer shall offer employment (herein referred
37
to as "Transferred Employees"). Seller hereby consents to Buyer making such
offers of employment relating to the Stations subject to the Closing. Seller
shall be responsible for all obligations or liabilities to those employees not
offered employment by Buyer, and Buyer shall have no obligations with respect to
those employees (herein referred to as Retained Employees).
(ii) One (1) day prior to the Closing Date, Buyer shall submit
confirmation letters to Station Management, on-air talent and other key
employees to whom it intends to offer employment, which confirmation letters
shall set forth the terms of employment currently in effect between said
employee and Seller, including, but not limited to, matters concerning salary,
bonuses, vacation time, non-compete provisions (if any), benefits, termination
rights, loans (if any) and any other pertinent provisions thereof. Receipt of
the confirmation letters signed by the respective management, on-air talent and
other key employees is a condition precedent to Buyer making any offers of
continued employment.
10.8 Condition of Real Estate. Buyer may, at its sole expense within
------------------------
thirty (30) days of the execution of this Agreement, conduct environmental
studies (including a Phase I Environmental Study). Buyer may, at its sole
expense, conduct title examinations, and land surveys (the "Studies") of the
Real Estate.
ARTICLE 11
CONDITIONS OF CLOSING BY BUYER
------------------------------
The obligations of Buyer hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of all of the following
conditions:
38
11.1 Representations and Warranties. All representations and warranties of
------------------------------
Seller made in this Agreement or in any Exhibit, Schedule or document delivered
pursuant hereto, shall be true and complete in all material respects as of the
date hereof and on and as of the Closing Date as if made on and as of that date,
except for changes expressly permitted or contemplated by the terms of this
Agreement.
11.2 Compliance with Agreement. All of the terms, covenants and conditions
-------------------------
to be complied with and performed by Seller on or prior to the Closing Date
shall have been complied with or performed in all material respects.
11.3 Third Party Consents and Approvals; Estoppel Certificates. Seller have
---------------------------------------------------------
obtained all third-party consents and approvals, if any, required for the
transfer or continuance, as the case may be, of the Material Contracts on
Schedule 1.1.3 (and material contracts that would have been on Schedule 1.1.3
had they been in existence on the date of this Agreement) and, such third
parties have provided estoppel certificates, non-disturbance agreements, and/or
written clarifications of the rights of Buyer thereunder, all in form and
substance reasonably satisfactory to Buyer. In the event any of the Contracts
not identified as material contracts in Schedule 1.1.3 are not assignable or any
consent to such assignment is not obtained on or prior to the Closing Date, the
Seller shall continue to use commercially reasonable efforts to obtain any such
assignment or consent after the Closing Date. Until such time as such
assignment or approval has been obtained, the Seller will cooperate with Buyer
in any lawful and economically feasible arrangement to provide that the Buyer
shall receive the Seller's interest in the benefits under any such Contract,
including performance by the Seller as agent, if economically feasible;
provided, however, that the Buyer shall undertake to pay
39
or satisfy the corresponding liabilities for the enjoyment of such benefit to
the extent that Buyer would have been responsible therefor if such consent or
assignment had been obtained.
11.4 Closing Certificates. Buyer shall have received a certificate, dated
--------------------
as of the Closing Date, from the Seller, executed by the president of Seller to
the effect of Sections 11.1 and 11.2.
11.5 Governmental Consents.
---------------------
11.5.1 FCC. The FCC Consent shall have been issued by the FCC
---
without any conditions that would otherwise permit Buyer to terminate this
Agreement pursuant to Section 15.1(v), below, and each such FCC Consent shall
have become a Final Order (as defined in Section 4.1).
11.5.2 HSR Act. [Intentionally Omitted]
-------
11.5.3 Other Consents. All other material authorizations, consents,
--------------
approvals, and clearances of federal, state, or local Governmental Entities
required to permit the consummation of the transactions contemplated by this
Agreement shall have been obtained.
11.6 Adverse Proceedings. No injunction, order, decree or judgment of any
-------------------
court, agency or other Governmental Entities shall have been rendered against
Seller or Buyer which would render it unlawful, as of the Closing Date, to
effect the transactions contemplated by this Agreement in accordance with its
terms.
11.7 Closing Documents. Seller shall have executed and delivered or caused
-----------------
to be delivered to Buyer, on the Closing Date (i), all special warranty deeds,
bills of sale, endorsements, assignments and other instruments of conveyance and
transfer consistent with the terms hereof and otherwise reasonably satisfactory
in form and substance to Buyer, effecting the sale, transfer,
40
assignment and conveyance of the Station Assets to Buyer and (ii) all other
documents, instruments, certificates and agreements required of Seller under the
terms of this Agreement.
11.8 Material Adverse Change. No material adverse change shall have
-----------------------
occurred. A material adverse change shall consist of a three hundred thousand
dollar ($300,000.00) or greater decline in the Station's twelve (12) month
trailing net revenue, without trade, as compared to the twelve (12) month
trailing net revenue, without trade, ending August 30, 1999. If a material
adverse change occurs, Buyer shall have thirty (30) days from the date it
receives written notice from Seller of the decreased net revenue, on a quarterly
basis, i.e., March 31, June 30, September 30, and December 31, to terminate this
Agreement. If Buyer does not terminate within this thirty (30) day period, the
material adverse change shall be deemed waived for that quarter only.
11.9 Opinion of Counsel. Buyer shall have received a written opinion
------------------
of Seller's counsel dated as of the Closing Date as to the matters set forth in
Exhibit 11.9 hereto in form and substance reasonably satisfactory to Buyer.
ARTICLE 12
CONDITIONS OF CLOSING BY SELLER
-------------------------------
The obligations of Seller hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of all of the following
conditions:
12.1 Representations, Warranties and Covenants. All representations and
-----------------------------------------
warranties of Buyer made in this Agreement or in any Exhibit, Schedule or
document delivered pursuant hereto, shall be true and complete in all material
respects as of the date hereof and on and as of the Closing
41
Date as if made on and as of that date, except for changes expressly permitted
or contemplated by the terms of this Agreement and except those given as of a
specified date.
12.2 Compliance with Agreement. All the terms, covenants, and conditions
-------------------------
to be complied with and performed by Buyer on or prior to the Closing Date shall
have been complied with or performed in all material respects.
12.2.1 Certifications, etc. Seller shall have received a
-------------------
certificate, dated as of the Closing Date, from the Buyer, executed by the
President of Buyer to the effect of Sections 12.1 and 12.2.
12.3 Governmental Approval.
---------------------
12.3.1 FCC. The FCC Consent shall have been issued by the FCC and
---
each such FCC Consent shall have become a Final Order (as defined in Section
4.1).
12.3.2 HSR Act. [Intentionally Omitted]
--------
12.3.3 Other Consents. All other material authorizations, consents
--------------
approvals, and clearances of federal, state or local Governmental Entities
required to permit the consummation of the transactions contemplated by this
Agreement shall have been obtained.
12.4 Adverse Proceedings. No injunction, decree or judgment of any court,
-------------------
agency or other governmental entities shall have been rendered against Buyer or
Seller which would render it unlawful, as of the Closing date, to effect the
transactions contemplated by this Agreement in accordance with its terms.
12.5 Closing Documents. Buyer shall have delivered or caused to be
-----------------
delivered to Seller, on the Closing Date, an assumption agreement with respect
to Assumed Liabilities reasonably satisfactory in form and substance to Seller.
42
12.6 Seller shall have received a written opinion of Buyer's counsel dated
as of the Closing Date as to the matters set forth in Exhibit 12.6 hereto in
form and substance reasonably satisfactory to Seller.
ARTICLE 13
TRANSFER TAXES: FEES AND EXPENSES
---------------------------------
13.1 Expenses. Except as set forth in Sections 13.2 and, 13.3 below, each
--------
party hereto shall be solely responsible for all costs and expense incurred by
it in connection with the negotiation, preparation and performance of and
compliance with the terms of this Agreement.
13.2 Transfer Taxes and Similar Charges. All costs of transferring the
----------------------------------
Station Assets in accordance with this Agreement, including recordation,
transfer and documentary taxes and fees, and any excise, sales or use taxes,
shall be borne equally by Buyer and Seller. Buyer and Seller shall, in good
faith, attempt to calculate all such taxes and fees prior to Closing and to
settle their respective obligations therefore on or before the Closing Date.
13.3 Governmental Filing or Grant Fees. Any filing or grant fees imposed
---------------------------------
by any governmental authority the consent of which is required for the
consummation of the transactions contemplated hereby, including but not limited
to, the FCC, the FTC, and the Department of Justice shall be borne equally by
Buyer and Seller.
ARTICLE 14
ESCROW DEPOSIT, LIQUIDATED DAMAGES, SPECIFIC PERFORMANCE
--------------------------------------------------------
14.1 Escrow Deposit. Within five (5) business days after the execution and
--------------
delivery of this Agreement by all Parties, Buyer will deposit with Xxxxxx Xxxxx,
Esquire ("Xxxxxxx Money Escrow
43
Agent"), an irrevocable letter of credit in the amount of Five Hundred Thousand
Dollars ($500,000.00) (the "Xxxxxxx Money Escrow Deposit"). The Xxxxxxx Money
Escrow Deposit shall be held and disbursed by Xxxxxxx Money Escrow Agent
pursuant to the terms of the Xxxxxxx Money Escrow Agreement, appended hereto as
Exhibit 14.1 (the "Xxxxxxx Money Escrow Agreement"), which Xxxxxxx Money Escrow
Agreement has been entered into by the Seller, Buyer and Xxxxxxx Money Escrow
Agent. At closing, the Xxxxxxx Money Escrow Deposit shall be returned to Buyer.
If the Closing does not occur because Buyer materially breached this Agreement
or defaulted in the performance of any of its material obligations hereunder and
Seller has not breached this Agreement or defaulted in the performance of any of
its material obligations hereunder, Buyer and Seller shall execute written
instructions to the Xxxxxxx Money Escrow Agent directing it to deliver the
Xxxxxxx Money Escrow Deposit to Seller as liquidated damages, as provided in
Section 14.2. If the Closing does not occur because Seller materially breached
this Agreement or defaulted in the performance of any of its material
obligations hereunder and Buyer has not breached this Agreement or defaulted in
the performance of any of its material obligations hereunder, Buyer and Seller
shall execute written instructions to the Xxxxxxx Money Escrow Agent directing
it to deliver the Xxxxxxx Money Escrow Deposit to Buyer and Buyer may seek
specific performance of this Agreement, as provided in Section 14.3
14.2 Liquidated Damages. (i) If this Agreement is terminated by Seller
------------------
pursuant to Section 15.1 (ii)(b), the Parties agree and acknowledge that Seller
will suffer damages that are not practicable to ascertain. Accordingly, in such
event, Seller shall be entitled to the sum of $500,000 as liquidated damages,
payable solely and exclusively through the Xxxxxxx Money Escrow Agreement. The
Parties agree that the foregoing liquidated damages are reasonable considering
all the circumstances existing
44
as of the date hereof and constitute the Parties' good faith estimate of the
actual damages reasonably expected to result from the termination of this
Agreement pursuant to Section 15.1 (ii)(b). Seller agrees that, to the fullest
extent permitted by law, the right to receive the Xxxxxxx Money Escrow Deposit
shall be its sole and exclusive remedy if the Closing does not occur with
respect to any damages whatsoever that Seller may suffer or allege to suffer as
a result of any claim or cause of action asserted by Seller relating to or
arising from breaches of the representations, warranties or covenants of Buyer
contained in this Agreement and to be made or performed at or prior to the
Closing. Except for a termination pursuant to Section 15.1 (ii)(b) (for which
the sole recourse of Seller shall be as provided in this Section 14.2) or
pursuant to Section 15.1(i) (for which no party shall have any liability to the
other), the termination of this Agreement shall not relieve the Parties for any
liability or obligation relating to their breaches of this Agreement occurring
prior to such termination.
(ii) Notwithstanding the provisions of subsection (i), above, the parties
agree that if Buyer extends the provisions of Section 15 (vi) from ten to
thirteen months and if the parties are unable to obtain FCC and/or other
regulatory approval during that extended period solely because of FCC Multiple
Ownership or Department of Justice/Federal Trade Commission anti-trust
considerations, then Seller shall accept the $250,000 payment provided in
Section 15 (vi) as liquidated damages for Buyer's failure to Close hereunder.
14.3 Specific Performance. In addition to any other remedies which Buyer
--------------------
may have at law or in equity, Seller hereby acknowledges that the Station Assets
are unique, and that the harm to Buyer resulting from a breach by Seller of its
obligations to sell the Station Assets to Buyer cannot be adequately compensated
by damages. Accordingly, Seller agrees that Buyer shall have the right
45
to have this Agreement specifically performed by Seller and hereby agrees not to
assert any objections to the imposition of remedy of specific performances by
any court of competent jurisdiction.
ARTICLE 15
TERMINATION RIGHTS
------------------
15.1 Termination. This Agreement may be terminated at any time prior to
-----------
Closing as follows:
(i) by the mutual consent of Buyer and Seller;
(ii) by written notice of (a) Buyer to Seller if Seller breaches in
any material respect any of its representations or warranties or defaults in any
material respect in the observance or in the due and timely performance of any
of its covenants or agreements herein contained and such breach or default shall
not be cured within thirty (30) days of the date of notice of breach or default
served by Buyer or (b) Seller to the Buyer if Buyer breaches in any material
respect any of its representations or warranties or defaults in any material
respect in the observance or in the due and timely performance of any of its
covenants or agreements herein contained and such breach or default shall not be
cured within thirty (30) days of the notice of breach or default served by
Seller; but such notice and cure period shall not apply in the case of Buyer's
or Seller's failure to consummate the transactions in accordance with the terms
and times specified in Section 4.1 of this Agreement.
(iii) by Buyer or Seller by written notice to the other, if a court
of competent jurisdiction or other Governmental Entity shall have issued an
order, decree or ruling or taken any other action (which order, decree or ruling
the parties hereto shall use their best efforts to lift), in
46
each case permanently restraining, permanently enjoining or otherwise
prohibiting the transactions contemplated by this Agreement, and such order,
decree, ruling or other action shall have become final and nonappealable;
(iv) by the party whose qualifications are not at issue, if, for any
reason, the FCC denies or dismisses any of the FCC Applications and the time for
reconsideration or court review under the Communications Act with respect to
such denial or dismissal has expired and there is not pending with respect
thereto a timely filed petition for reconsideration or request for review;
(v) by written notice of Buyer to Seller if the FCC Consents
contain a condition that reduces the value of this transaction to Buyer and the
time for reconsideration or court review under the Communications Act with
respect to such condition(s) has expired without the filing with respect thereto
of a timely petition for reconsideration or request for review;
(vi) by written notice of Buyer to Seller, or by Seller to the Buyer,
if the Closing shall not have been consummated within ten months after the date
of this Agreement; provided however Buyer may extend the term of this subsection
(iv) from ten months to thirteen months by paying Seller $250,000 at least five
days prior to the expiration of the initial ten month period.
(vii) Notwithstanding the foregoing, no party hereto may effect a
termination hereof if such party is in material default or breach of this
Agreement.
ARTICLE 16
16.1 Risk of Loss. The risk of loss or damage to the Station Assets shall
------------
be upon Seller at all times prior to the Closing Date. In the event of loss or
damage, Seller shall promptly notify Buyer thereof and if the lost or damaged
Station Assets are capable of being replaced or repaired for
47
an aggregate amount less than $25,000, then Seller shall, at its sole cost and
expense, replace or repair such Station Assets prior to the Closing Date or
deliver to Buyer at the Closing an amount in cash equal to the cost of
replacement or repair of such Station Assets, as mutually agreed in good faith
by Buyer and Seller. Notwithstanding the foregoing, if the amount required to
replace or repair such Station Assets exceeds $25,000, Seller may elect not to
replace or repair such Station Assets, provided, however, that in such event
Buyer, at its option, may elect to terminate this Agreement or agree to accept
from Seller, at the Closing, an amount in cash equal to the cost to replace or
repair such Station Assets, as mutually agreed in good faith by Buyer and Seller
and waive any default or breach with respect to the loss or damage. Buyer may
terminate this Agreement, without any additional obligation to Buyer or Seller,
if any of the Stations is off the air or operating at less than 90 percent (90%)
of its licensed power for ten (10) or more consecutive days or fifteen (15) or
more days in any thirty (30) day period. Either party may extend the Closing
Date by up to 30 days in order to allow Seller to complete any repair or
replacement, required or authorized by this Section.
ARTICLE 17
MISCELLANEOUS PROVISIONS
------------------------
17.1 Survival of Representations and Warranties. The representations and
------------------------------------------
warranties contained in this Agreement, and in any schedule, instrument or
certificate delivered pursuant hereto, shall survive the Closing until one (1)
year after the Closing Date.
17.2 Certain Interpretive Matters and Definitions. Unless the context
--------------------------------------------
otherwise requires, (i) all references to Sections, Articles or Schedules are to
Sections, Articles or Schedules of or to this Agreement, (ii) each term defined
in this Agreement has the meaning assigned to it, (iii) each accounting term not
otherwise defined in this Agreement has the meaning assigned to it in
48
accordance with generally accepted accounting principles as in effect on the
date hereof, (iv) "or" is disinjunctive but not necessarily exclusive, and (v)
words in the singular include the plural and vice versa, and (vi) the term
----------
"Affiliate" has the meaning given it in Rule 12b-2 of Regulation 12B under the
Securities Exchange Act of 1934, as amended. All references to "$" or dollar
amounts will be to lawful currency of the United States of America.
17.3 Further Assurances. At and after the Closing, Seller shall from time
------------------
to time, at the request of and without further cost or expense to Buyer, execute
and deliver such other instruments of assignment, conveyance and transfer and
take such other actions as may reasonably be requested in order to more
effectively consummate the transactions contemplated hereby, and Buyer shall
from time to time, at the request of and without further cost or expense to
Seller, execute and deliver such other instruments and take such other actions
as may reasonably be requested in order to more effectively assume the Assumed
Liabilities.
17.4 Audited Financial Statements. At all times after the date hereof,
----------------------------
Seller shall, and shall cause its representatives (including its independent
public accountants) to, cooperate in all reasonable respects with the efforts of
Buyer and its independent auditors to prepare such audited and interim unaudited
financial statements of the Stations as Buyer may require. Seller shall execute
and deliver to Buyer's independent accountants such customary management
representation letters as they may require as a condition to their ability to
sign an unqualified report upon the audited financial statements of the Stations
for the periods for which such financial statements may be required. Seller
shall cause its independent public accountants to make available to Buyer and
its representatives all of their work papers related to the financial statements
or Tax Returns of Seller (to the extent they relate to the Stations) and to
provide Buyer's independent public accountants with
49
full access to those personnel who previously have been involved in the audit or
review of Seller's financial statements or Tax Returns.
17.5 Assignment. Neither this Agreement nor any of the rights, interests
-----------
or obligations hereunder shall be assigned by any of the parties hereto, whether
by operation of law or otherwise; provided, however, that without releasing
Buyer from any of its obligations or liabilities hereunder (i) nothing in this
Agreement shall limit Buyer's ability to sell or transfer this Agreement or any
or all of its assets (whether by sale of equity or assets or by merger,
consolidation or otherwise) without the consent of Seller; (ii) nothing in this
Agreement shall limit Buyer's ability to assign the Station Licenses (including
the right to acquire the Station Licenses at the Closing) to any subsidiary of
Buyer without the consent of Seller; and (iii) nothing in this Agreement shall
limit Buyer's ability to make a collateral assignment of its rights under this
Agreement to any institutional lender that provides funds to Buyer without the
consent of Seller. Seller shall execute an acknowledgment of such assignment(s)
and collateral assignments in such forms as Buyer or its institutional lenders
may from time to time reasonably request; provided, however, that unless written
notice is given to Seller that any such assignment has been consummated or any
such collateral assignment has been foreclosed upon, Seller shall be entitled to
deal exclusively with Buyer as to any matters arising under this Agreement or
any of the other agreements delivered pursuant hereto. In the event of such an
assignment, the provisions of this Agreement shall inure to the benefit of and
be binding on Buyer's successors and assigns.
17.6 Amendments. No amendment, waiver of compliance with any provision or
----------
condition hereof or consent pursuant to this Agreement shall be effective unless
evidenced by an instrument
50
in writing signed by the party against whom enforcement of any waiver,
amendment, change, extension or discharge is sought.
17.7 Headings. The headings set forth in this Agreement are for
--------
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
17.8 Governing Law; The construction and performance of this Agreement
--------------
shall be governed by the laws of the State of Pennsylvania without giving effect
to the choice of law provisions thereof.
17.9 Notices. Any notice, demand or request required or permitted to be
-------
given under the provisions of this Agreement shall be in writing and shall be
deemed to have been duly delivered and received on the date of personal
delivery; on the third day after deposit in the U.S. mail if mailed by
registered or certified mail, postage prepaid and return receipt requested; on
the day after delivery to a nationally recognized overnight courier service if
sent by an overnight delivery service for next morning delivery and shall be
addressed to the following addresses:
(a) In the case of Seller, to:
Xx. Xxxxx Xxxxx
000 Xxx Xxxx Xxxxx
Xxxx, Xxxxxxxxxxxx 00000
Mr. Xxxx Xxxxxxx
The Jet Broadcasting Co., Inc.
0000 Xxxxxxx Xxxx
Xxxx, Xxxxxxxxxxxx 00000
With a copy to:
Xxxxxx X. Xxxxxx, Esq.
Reddy, Xxxxxx & XxXxxxxxx
0000 X Xxxxxx, X.X.
Xxxxx 000
00
Xxxxxxxxxx, XX 00000
(b) In the case of Buyer:
Xx. Xxxxxx Xxxxxx
P.O. Box 10994
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxx 00000
And:
Xx. Xxxx Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
With a copy to:
Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx & Associates, P.A.
0 X.X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
17.10 Barter and Trade. Buyer shall assume as of the Closing all trade
----------------
agreements existing as of the Closing Date that have not yet been performed. To
the extent that the aggregate liability of the Stations at the Closing for
unperformed time under the trade agreements (the "Trade Liabilities") exceeds by
$50,000 the value of the goods and services to be received by the Stations or
Buyer after the Closing under the trade agreements (the "Trade Receivables"),
the Purchase Price payable at Closing shall be reduced by the amount over
$50,000 by which the Trade Liabilities exceeds the Trade Receivables (the "Trade
Imbalance").
52
17.11 Schedules. The schedules and exhibits attached to this Agreement and
---------
the other documents delivered pursuant hereto are hereby made a part of this
Agreement as if set forth in full herein.
17.12 Entire Agreement This Agreement contains the entire agreement among
----------------
the parties hereto with respect to its subject matter and supersedes all
negotiations, prior discussions, agreements, letters of intent, and
understandings, written or oral, relating to the subject matter of this
Agreement.
17.13 Severability. If any provision of this Agreement is held to be
------------
unenforceable, invalid, or void to any extent for any reason, that provision
shall remain in force and effect to the maximum extent allowable, and the
enforceability and validity of the remaining provisions of this Agreement shall
not be affected thereby.
17.14 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which will be deemed an original, but all of which
together shall constitute but one and the same instrument.
53
17.15 Personal Guarantee. The obligation of Seller under Section 8.10 (iii)
------------------
shall be personally guaranteed by Xxxxx Xxxxx and Xxxx Xxxxxxx, both jointly and
severally.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be duly executed and delivered as of the date first above written.
The Jet Broadcasting Co., Inc.
By:______________________________
Xxxxx Xxxxx
Chief Executive Officer
NextMedia Group, LLC
By:_____________________________
Xxxxxxx Xxxxxxxxx
Secretary
We agree to the guarantee set out in Section 17.15, above;
____________________________
Xxxxx Xxxxx
____________________________
Xxxx Xxxxxxx
54
