EX-10.6(a)
Assets Purchase Agreement
ASSETS PURCHASE AGREEMENT
This agreement is entered into this 24th day of October 1997, by and
between CMB II, INC., a Virginia corporation ("Seller"), and MVP Radio, Inc. a
Missouri corporation ("Buyer").
RECITALS
Seller is the broadcast licensee of and owns and operates radio station
KATI-FM of California, Missouri (the "Station"). Buyer wishes to buy and Seller
wishes to sell and transfer to Buyer certain of Seller's assets, and Buyer
wishes to obtain an assignment of, and Seller wishes to assign and transfer to
Buyer, each license and authorization issued by the Federal Communications
Commission (the "Commission") for the operation of the Station, all upon the
terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the foregoing and the
agreements contained herein, Seller and Buyer hereby agree as follows:
1. Purchase and Sale of Property and Assets.
1.1 Upon and subject to compliance with all terms and conditions of
this agreement, at Closing (hereinafter defined) Buyer agrees to buy from
Seller, and Seller agrees to sell, assign, transfer, convey, and deliver to
Buyer all of Seller's right, title, and interest in and to all of the real,
personal, tangible, and intangible property and assets owned or leased and used
by Seller in the Stations' operations (including all of Seller's interests in
and to any of the Stations' real or personal property; machinery; vehicles;
fixtures; studio, broadcast, or transmitter equipment; supplies; music
collection; contracts, and leaseholds), excluding only the property described in
Section 1.2 (collectively, the "Property Sold").
1.2 The following are not part of the Property Sold and are not
being sold to Buyer: (a) Seller's (i) rights under this agreement, (ii) cash on
hand or in bank, (iii) corporate stock records, seal, and minute book, (iv)
insurance policies, or the proceeds thereof, (v) books of account and original
entry, (vi) unliquidated claims or choses in action, and (vii) notes or accounts
receivable, including all accounts with or due from related or affiliated
persons or companies; (b) such items otherwise includable as part of the
Property Sold as may be disposed of by Seller before Closing in the ordinary
course of Seller's business while acting in accordance with Seller's past
practices, and (c) those assets of Seller not used in the Stations' operations.
2. Purchase Price.
2.1 The purchase price (the "Purchase Price") payable for the
Property Sold shall be the sum of One Million Fifty Thousand and no/100 Dollars
($1,050,000.00), adjusted as required by Section 2.2, to be paid by Buyer to
Seller at Closing in cash or by wire transfer of immediately available federal
funds and shall be allocated as set forth on Exhibit 2.01 hereof.
2.2 (a) Operation of Station and use of the Property Sold, and any
income or expenses attributable thereto, shall be for Seller's account until
Closing and thereafter shall be for Buyer's account. At Closing all prepaid
items (other than income taxes) that are received by Buyer or that will accrue
to Buyer's benefit after Closing shall be prorated between Buyer and Seller as
of Closing and the Purchase Price adjusted accordingly.
(b) If Buyer and Seller disagree as to the amount of any
adjustment required by this Section 2.2, such disputed amount or amounts will be
finally determined by Ernst & Young, and its fees and expenses shared equally by
Buyer and Seller.
2.3 Pursuant to an escrow agreement of even date herewith (the
"Escrow Agreement"), Buyer has deposited with Old National Trust Company,
Evansville, Indiana ("Agent") cash in the amount of Six Hundred Thousand and
No/100 Dollars ($600,000.00) (together with all income earned thereon, the
"Deposit"), to be held by the Agent pursuant to the terms and conditions of the
Escrow Agreement.
3. Closing; Applications; Etc.
3.1 Unless sooner terminated as herein provided for, consummation of
the sale and purchase contemplated hereby ("Closing") shall take place at 10:00
o'clock a.m., local time, at the offices of Xxxxxxxx & XxXxxxxx, P.C., 100
Shockoe Slip, Xxxxxxxx, Xxxxxxxx 00000, on (a) the fifth (5th) business day
following the date on which the Commission's consent to the Applications has
become final, or (b), at Seller's option upon ten (10) days prior notice to
Buyer at such earlier time for Closing as Seller designates in such notice given
after Seller has received notice of the Commission's consent to the
Applications, or (c) at such other time and/or place as Buyer and Seller
hereafter may agree upon in writing (such date as so determined, designated, or
agreed upon shall be the "Closing Date").
3.2 In exchange for and upon receipt of the items to be delivered at
Closing by Buyer, as described in Section 3.3, Seller agrees to and shall
deliver or cause to be delivered to Buyer at Closing each of the following:
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(a) such documents and duly executed instruments as shall be
necessary and appropriate to Closing, including instruments of conveyance,
assignment, or transfer sufficient to assign, convey, transfer to, and vest in
Buyer all of Seller's right, title, and interest in and to the Property Sold
free and clear of any and all liens or encumbrances as and to the extent
warranted by Seller in Section 4.6;
(b) a certified copy of necessary corporate proceedings and
resolutions duly adopted by Seller and its shareholder(s) authorizing and
approving execution and delivery of this agreement and consummation of the
transactions contemplated hereby;
(c) the legal opinion of Messrs. Xxxxxxxx & XxXxxxxx, 100
Shockoe Slip, Xxxxxxxx, Xxxxxxxx 00000, dated as of the Closing Date, in form
and substance satisfactory to Buyer as to the matters set forth in Sections 4.1
and 4.2; and
(d) a list of Seller's accounts receivable (aged 30, 60, 90
days, etc.) for the Station (the "Accounts Receivable").
3.3 Contemporaneously with Seller's performance of its obligations
described in Section 3.2, Buyer agrees to and shall deliver to Seller at Closing
each of the following:
(a) payment to Seller of the Purchase Price as described in
Section 2.1;
(b) the legal opinion of Buyer's legal counsel, dated as of
the Closing Date, in form and substance satisfactory to Seller as to the matters
set forth in Sections 7.1, 7.2, and 7.3;
(c) to the extent appropriate, certified copies of duly
adopted resolutions authorizing and approving execution and delivery of this
agreement and consummation of the transactions contemplated hereby; and
(d) such duly executed instruments, in form and substance
satisfactory to Seller, as are required by Section 3.6.
3.4 Until Closing Buyer shall not directly or indirectly control,
determine, supervise, or direct or attempt to control, determine, supervise, or
direct the operations of Station or its policies or programs.
3.5 Within five (5) business days of the date hereof, Buyer and
Seller will file or cause to be filed with the Commission appropriate, formal
applications ("Applications") for consent to assignment to Buyer of the Licenses
(hereinafter defined), and thereafter Seller and Buyer will diligently process
the
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Applications and will supply all information, filings, and documentation
concerning Buyer, Seller, and Station or their operations as the Commission
reasonably may require in connection therewith. The obligation for all charges
made by the Commission for filing and processing the Applications shall be borne
equally by Buyer and Seller.
3.6 As of and after Closing Buyer assumes and agrees to perform,
pay, and discharge all obligations, contracts, and liabilities of Seller as of
or arising after Closing pursuant to those instruments or agreements of Seller
identified on Exhibit 3.06.1 and as set forth in instruments of assumption [the
"Assumption Agreement(s)"], in form and substance satisfactory to Seller, to be
executed and delivered to Seller by Buyer at Closing.
3.7 At Closing, Seller will assign the Accounts Receivable to Buyer
as its agent for purposes of collection only for the period of ninety (90) days
immediately following Closing. During such period, as Seller's agent Buyer shall
have the exclusive right to and shall collect the Accounts Receivable in
Seller's name in the same manner and with the same diligence as used by Buyer to
collect Buyer's own accounts, except that Buyer shall not be required to file
any action or hire any collection agency for such purpose. Payments received by
Buyer on an account from any customer of Buyer that is also an account debtor to
Seller shall first be applied to Seller's Accounts Receivable. At the end of
each calendar month, Buyer will remit all collections on such Accounts
Receivable to Seller and shall deliver to Seller a summary of all such
collections for such month. When received by Buyer, such collections shall be
deposited in a separate account as designated by Seller. At the end of such
ninety (90) day period, Buyer shall deliver all remaining collections to Seller
along with a final summary of all collections for such period and shall return
to Seller all such Accounts Receivable then remaining uncollected, and Buyer's
responsibility and authority with respect to such Accounts Receivable thereupon
shall terminate.
3.8 Exhibit 3.08.1 is an accurate and complete list and brief
description of all contracts, leases, or other agreements to which Seller is a
party or to which it is bound.
4. Seller's Representations and Warranties. To induce Buyer to enter into
and perform this agreement, Seller represents and warrants to Buyer that each of
the following is true:
4.1 Seller is a corporation duly organized, validly existing, and in
good standing under the laws of the Commonwealth of Virginia, has all requisite
corporate power and authority to conduct its business as it is now being
conducted and to own and operate Station, and is duly domesticated and qualified
to do business as a foreign corporation in the State of Missouri.
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4.2 This agreement and the actions contemplated hereby have been
validly authorized by Seller, and this agreement has been duly executed and
delivered by Seller and constitutes a legal, valid, and binding obligation of
Seller enforceable against Seller in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, or similar laws generally
affecting the enforcement of creditors' rights.
4.3 As listed and briefly identified on Exhibit 4.03, Seller
presently holds licenses and authorizations issued by the Commission for the
ownership and operation of the Station (the "Licenses"); the Licenses are in
full force and effect, and the Station is being operated in compliance with all
material terms of the Licenses and the Commission's applicable rules and
regulations.
4.4 The Property Sold, together with the assets described in Section
1.2, include all of Seller's assets that are currently being used by Seller to
operate the Station.
4.5 Except as Seller may have advised Buyer otherwise, Seller knows
of no legal, administrative, arbitrative, investigative, or other suit or action
pending or threatened against Seller.
4.6 Except for property leased by Seller, at Closing Seller will
convey to Buyer good, record (where applicable), and marketable title to all of
the Property Sold free and clear of all liens or encumbrances other than those
for (a) unpaid taxes not overdue and other liens, encumbrances, or minor
imperfections of title that do not materially detract from Seller's use or
materially interfere with Stations' operations as presently conducted, (b) such
as would be disclosed by a survey of any real property that is a part of the
Property Sold, and (c) the obligations listed on Exhibit 3.06.1 and to be
assumed by Buyer at Closing pursuant to Assumption Agreements.
4.7 Seller's execution of, delivery of, performance of, compliance
with, and Closing of this agreement will not constitute a default under or
result in any material breach of any term, condition, or provision of any
applicable agreement to which Seller is a party
5. Conduct Prior to Closing. Until Closing, Seller covenants and agrees
that:
5.1 Seller will carry on its business only in the ordinary course
and substantially in the same manner as heretofore.
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5.2 Upon prior reasonable notice from Buyer, Seller shall give
Buyer's authorized representatives reasonable access to the Station.
5.3 Without Buyer's prior consent, which shall not be unreasonably
withheld, Seller will not agree to any material modification of any written
agreement materially affecting the Station or the Property Sold.
5.4 Seller shall notify Buyer if it becomes aware that any
litigation or other judicial proceeding has been commenced against Seller.
5.5 No later than thirty (30) days prior to the Closing Date, Buyer
shall have performed a lien search with respect to the Property Sold and
notified Seller of any lien of record [other than a permitted lien described in
Section 4.6 above] as to any material portion of the Property Sold that Buyer is
unwilling to waive (a "Recorded Lien"). Failure to perform such search or to
notify Seller of each such Recorded Lien shall be deemed to be a waiver of
Buyer's right to object to any Recorded Lien that would have been discoverable
by such a search or to any defect so discovered or discoverable. Within fifteen
(15) days of receipt of such notice, Seller shall notify Buyer either that (a)
Seller will cause such Recorded Lien to be cured by, upon, or at Closing on the
Closing Date, or (b) Seller will not cure such Recorded Lien, and in the event
of (b) Buyer may either (i) proceed to Closing on the Closing Date subject to
such Recorded Lien or (ii) terminate this agreement by notice to Seller given
within ten (10) days after receipt of Seller's notice and thereupon be entitled
to a prompt refund of the Deposit.
6. Conditions to Buyer's Obligations. As conditions for the benefit of
Buyer, each and any of which Buyer may waive, each obligation of Buyer under
this agreement shall be subject to and conditioned upon satisfaction as of
Closing of each of the following:
6.1 Seller shall have complied in all material respects with the
terms of this agreement applicable to it.
6.2 In all material respects, each of Seller's representations and
warranties contained herein shall have been true and correct when made, shall be
deemed to be made again at and as of Closing, and in all material respects shall
then be true and correct.
6.3 Seller shall have delivered to Buyer each item listed in Section
3.2.
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6.4 Since the date of this agreement, no uninsured loss or damage
materially affecting Station or the Property Sold shall have occurred and be
continuing.
6.5 No law or order shall directly restrain or prohibit Closing, and
no suit, action, investigation, inquiry, or governmental or other proceeding,
judicial or administrative, shall have been instituted or be threatened raising
any material question as to the validity, legality, or enforceability of this
agreement or the transactions contemplated hereby.
6.6 The Commission's consent to the Applications shall have been
obtained and, unless Seller elects otherwise, such consent shall have become a
final order.
7. Buyer's Representations and Warranties. To induce Seller to enter into
and perform this agreement, Buyer represents and warrants to Seller that each of
the following is true:
7.1 Buyer has all requisite power and authority to enter into this
agreement, to consummate the transactions contemplated hereby, to conduct
Buyer's business as it is now being conducted, and to own and operate Buyer's
properties and assets.
7.2 This agreement and the actions contemplated hereby have been
validly authorized by Buyer, and this agreement has been duly executed and
delivered by Buyer and constitutes a legal, valid, and binding obligation of
Buyer enforceable against Buyer in accordance with its terms, except as limited
by bankruptcy, insolvency, reorganization, or similar laws generally affecting
the enforcement of creditors' rights.
7.3 No litigation or proceeding is pending or, to Buyer's knowledge,
threatened that affects or may affect in any material, adverse manner Buyer's
power, authority, or ability to consummate the transactions contemplated hereby.
7.4 Buyer is now legally and financially qualified and able to
undertake and perform Buyer's obligations under and as contemplated by this
agreement, and Closing by Buyer on the Closing Date as contemplated hereby will
not violate, conflict with, or be void or voidable under any instrument, law,
rule, or regulation.
8. Conditions to Seller's Obligations. As conditions for the sole benefit
of Seller, each and any of which Seller may waive, each obligation of Seller
under this agreement shall be subject to and conditioned upon satisfaction as of
Closing of each of the following:
8.1 Buyer shall have complied in all material respects with the
terms of this agreement applicable to Buyer.
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8.2 In all material respects, each of Buyer's representations and
warranties contained herein shall have been true and correct when made, shall be
deemed to be made again at and as of Closing, and in all material respects shall
then be true and correct.
8.3 Buyer shall have delivered to Seller each item listed in Section
3.3.
8.4 Seller shall have determined that the conditions set forth in
Sections 6.5 and 6.6 shall have been met to Seller's reasonable satisfaction.
8.5 Contemporaneously with Closing hereunder, Closing (as therein
defined) shall have occurred under that certain agreement of even date herewith
entered into by and between Central Missouri Broadcasting, Inc. as "Seller", and
Xxxxxx Broadcasting of Mid-Missouri, Inc. as "Buyer" for the sale to "Buyer" by
"Seller" of all of the assets of radio stations KLIK-AM and KTXY-FM as therein
provided.
8.6 Buyer shall have complied in all respects with its obligations
under the Time Brokerage Agreement of even date herewith entered into by and
between Seller and Buyer.
9. Miscellaneous.
9.1. (a) Seller agrees to indemnify, defend, and hold Buyer harmless
from each and any action, suit, cause of action, loss, damage, or claim (singly
a "Claim"; collectively, the "Claims") asserted against or incurred or sustained
by Buyer and arising from, based on, or on account of (i) Company's operation of
the Station prior to Closing, (ii) any Claim asserted against Seller, or (iii)
any material failure to perform or breach or untruthfulness of any material
covenant, representation, or warranty of Seller herein.
(b) Buyer agrees to indemnify, defend, and hold Seller
harmless from each and any Claim or Claims asserted against or incurred or
sustained by Seller and arising from, based on, or on account of (i) Buyer's
operation of the Station after Closing, (ii) any Claim asserted against Buyer,
or (iii) any material failure to perform or breach or untruthfulness of any
material covenant, representation or warranty of Buyer herein.
(c) Each indemnity obligation herein shall be enforceable only
after the aggregate amount of all Claims against the indemnified party shall
have exceeded Five Thousand and no/100 Dollars ($5,000.00) and shall survive
Closing but expire as to all
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Claims made after the last day of the twenty-fourth (24th) full calendar month
following Closing.
9.2 Each notice or other communication hereunder shall be in writing
and shall be effective only upon receipt if sent prepaid via overnight courier
service, or if delivered personally, or if sent by telecopy (during business
hours) followed by overnight courier service, postage prepaid, or ten (10) days
after having been mailed certified or registered United States mail, postage
prepaid, addressed to the appropriate party as follows:
If to Seller: CMB II, Inc.
c/o Brill Media Company, L.P.
000 X.X. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxx
Facsimile No.: (000) 000-0000
copy to: Xxxxxxx X. Xxxxxxxx, Esquire
Xxxxxxxx & XxXxxxxx, P.C.
100 Shockoe Slip
Xxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
if to Buyer: MVP Radio, Inc.
000 Xxxxxxxx
X.X. Xxx 0000
Xxxx Xxxxxxxx, XX 00000-0000
By a like notice, either party may change the address of such party for
future notices.
9.3 This agreement may not be assigned or amended, in whole or in
part, without the prior, written consent of all parties hereto and shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
9.4 Without any liability on Seller as a result of such actions,
Seller may, but shall not be required to, rescind and terminate this agreement
and Seller's obligations hereunder by notice to Buyer (a) within thirty (30)
days after Seller first receives notice either (i) that Buyer is not FCC
qualified or (ii) that filings have been made in opposition to any of the
Applications or that any of the Applications will be or has been designated for
hearing, or (b) if Closing shall not have occurred (through no fault of Seller)
within one hundred eighty (180) days of the date hereof.
9.5 Buyer and Seller represent and warrant each to the other that
only Media Services Group shall be entitled to a commission as a result of
Closing, which commission, at agreed
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rates, Buyer shall pay upon Closing, and Buyer shall hold Seller harmless from
any claim therefor. If a claim is made by any other broker in connection with
this transaction, the party who is alleged to have engaged or retained such
broker shall indemnify and hold harmless the other party from any and all
liabilities and expenses connected therewith.
9.6 Wherever used in this agreement each of the following terms
shall have the meaning defined in the Section of this agreement identified
below:
Term Section
---- -------
Accounts Receivable ss. 3.2(d)
Applications ss. 3.5
Agent ss. 2.3
Assumption Agreement(s) ss. 3.6
Buyer Preamble
Claim(s) ss. 9.1(a)
Closing ss. 3.1
Closing Date ss. 3.1
Commission Recitals
Deposit ss. 2.3
Escrow Agreement ss. 2.3
Licenses ss. 4.3
Property Sold ss. 1.1
Purchase Price ss. 2.1
Recorded Lien ss. 5.5
Seller Preamble
Station Recitals
9.7 If Closing does not occur on the Closing Date, Buyer shall
forthwith return all documents received from Seller and thereafter will cause
all confidential information it obtained concerning Seller, Station, or the
Company to be treated as such.
9.8 This agreement, its enforceability or interpretation, and the
legal relationships between Buyer and Seller created hereby shall be governed by
and construed in accordance with the laws of the Commonwealth of Virginia,
without giving effect to such laws' principles regarding choice of law or
conflicts of laws.
9.9 The Section headings were inserted for convenience only and are
not a substantive part of this agreement.
9.10 If any one or more of the provisions contained in this
agreement, or in any other instrument referred to herein, shall, for any reason,
be held to be invalid, illegal, or unenforceable in any respect, then to the
maximum extent permitted by law such invalidity, illegality, or unenforceability
shall not
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affect any other provision of this agreement or any other such instrument.
9.11 This agreement contains the entire understanding of the parties
hereto with respect to its subject matter. As between Buyer and Seller there are
no agreements, restrictions, promises, representations, warranties, covenants,
or undertakings other than as expressly set forth herein, and this agreement
waives, releases, and supersedes any and all such and also each and any prior
agreement or understanding between the parties (or their agents, principals, or
representatives) concerning the transactions contemplated hereby.
9.12 This agreement may be executed in any number of counterparts,
each of which shall constitute an original, which, when the first such
counterpart shall have been executed by each of Buyer and Seller, shall
constitute but one and the same agreement.
9.13 Buyer and Seller agree that Buyer has had and shall have the
right to examine the Property Sold to the extent reasonably desired, that the
personal property included in the Property Sold is being sold "as is", with "all
faults" as of the date hereof, reasonable wear and tear excepted, and without
and excluding each and any warranty, express or implied, other than the warranty
of title as and to the extent expressly set forth in Section 4.6, and that as to
each, all, or any part of the personal property included in the Property Sold
there is no warranty, express or implied, as to its or their merchantability,
freedom or lack of freedom from defect, fitness for any particular use or
purpose, or value or condition.
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement
as of the day, month, and year first above written.
Seller: CMB II, Inc.
by:___________________________
a duly authorized officer
Buyer: MVP Radio, Inc.
by:________________________________
a duly authorized officer
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Exhibit 2.01
Allocation of Purchase Price
CMB II, Inc.
------------
Studio Building Leasehold Improvements $ 5,000
Broadcast Equipment 245,000
Goodwill, FCC License and other intangibles 800,000
----------
Total $1,050,000
==========
Exhibit 3.06.1
Assumed Obligations Reducing the Purchase Price
Pursuant to Section 3.06.1
(to come)
Exhibit 3.08.1
List of Contracts
Exhibit 4.03
License
KATI-FM, California, Missouri
94.3 MHz
Class "C2", 50 kw nondirectional;
150 meters HAAT; unlimited hours
License file # BZH951013KA
Grant: 1/28/97
Expires: 2/1/05
