1
Exhibit 2(g)
EXECUTION COPY
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ASSET PURCHASE AGREEMENT
for the sale of radio station
WYSY, Aurora, Illinois
from
Infinity Holdings Corp. of Orlando
to
Spanish Broadcasting System, Inc.
Dated as of August 22, 1996
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TABLE OF CONTENTS
Page
ARTICLE 1
ASSETS TO BE CONVEYED........................................................ 2
1.1. Closing............................................................. 2
1.2. Transfer of Assets.................................................. 2
1.3. Excluded Assets..................................................... 3
ARTICLE 2
PURCHASE PRICE............................................................... 3
2.1. Purchase Price...................................................... 3
2.2. Payment of Purchase Price........................................... 4
2.3. Allocation.......................................................... 4
ARTICLE 3
ASSUMPTION OF OBLIGATIONS.................................................... 4
3.1. Assumption of Obligations........................................... 4
3.2. Limitation.......................................................... 5
ARTICLE 4
PRORATIONS................................................................... 5
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER..................................... 5
5.1. Organization and Standing........................................... 5
5.2. Authorization and Binding Obligation................................ 5
5.3. Absence of Conflicting Agreements or Required Consents.............. 6
5.4. FCC Authorizations.................................................. 6
5.5. Title to and Condition of Personal Property......................... 6
5.6. Assumed Contracts................................................... 7
5.7. Litigation.......................................................... 7
5.8. Compliance With Laws................................................ 7
5.9. Broker's Fees....................................................... 8
5.10. Bankruptcy.......................................................... 8
5.11. Utilities........................................................... 8
5.12. Assets for Operations............................................... 8
5.13. FCC Processing...................................................... 9
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER................................. 9
6.1. Organization and Standing...................................... 9
6.2. Authorization and Binding Obligation........................... 9
6.3. FCC Qualifications............................................. 9
6.4. Absence of Conflicting Agreements or Required Consents......... 9
6.5. Broker's Fees.................................................. 10
6.6. Bankruptcy..................................................... 10
ARTICLE 7
GOVERNMENTAL CONSENTS................................................... 10
7.1. FCC Application. ............................................. 10
7.2 Compliance with HSRA........................................... 11
7.3 Other Governmental Consents.................................... 11
ARTICLE 8
COVENANTS............................................................... 12
8.1. Conduct of Business............................................ 12
8.2. Notification................................................... 12
8.3. Third-Party Consents........................................... 13
8.4. Pre-Closing Efforts............................................ 13
8.5. Risk of Loss................................................... 14
8.6. Confidentiality................................................ 14
8.7. Further Assurances............................................. 14
8.8. Access......................................................... 14
8.9. Employee Matters............................................... 15
ARTICLE 9
CONDITIONS PRECEDENT.................................................... 15
9.1. To Buyer's Obligations......................................... 15
9.2 To Seller's Obligations........................................ 16
ARTICLE 10
DOCUMENTS TO BE DELIVERED AT THE CLOSING................................ 17
10.1. Documents to be Delivered by Seller............................ 17
10.2. Documents to be Delivered by Buyer............................. 17
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ARTICLE 11
INDEMNIFICATION, SURVIVAL............................................... 18
11.1. Seller's Indemnities........................................... 18
11.2. Buyer's Indemnities............................................ 18
11.3. Procedure for Indemnification.................................. 19
11.4. Limitations. ................................................ 20
11.5. Survival of Representations, Warranties and Covenants.......... 20
11.6. Sole Remedy.................................................... 20
ARTICLE 12
TERMINATION RIGHTS...................................................... 21
12.1. Termination.................................................... 21
12.2. Effect of Termination.......................................... 21
ARTICLE 13
REMEDIES UPON DEFAULT; SPECIFIC PERFORMANCE............................. 22
13.1. Default by Seller; Specific Performance. ......................... 22
13.2. Default by Buyer; Liquidated Damages.............................. 22
ARTICLE 14
OTHER PROVISIONS........................................................ 22
14.1. Transfer Taxes and Expenses.................................... 22
14.2. Benefit and Assignment......................................... 22
14.3. Entire Agreement; Schedules; Amendment; Waiver................. 23
14.4. Headings....................................................... 23
14.5. Computation of Time............................................ 23
14.6. Governing Law; Waiver of Jury Trial............................ 23
14.7. Attorneys' Fees................................................ 24
14.8. Severability................................................... 24
14.9. Notices........................................................ 24
14.10. Counterparts................................................... 25
14.11 Exclusive Dealings............................................. 25
ARTICLE 15
DEFINITIONS............................................................. 26
15.1. Defined Terms.................................................. 26
15.2. Miscellaneous Terms............................................ 29
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EXHIBITS
Exhibit A Promissory Note
Exhibit B Unwind Agreement
SCHEDULES
Schedule 1.2(a) FCC Licenses
Schedule 1.2(e) Main Studio and Transmitter Site Leases
Schedule 1.2(f) Office Lease
Schedule 5.3 Seller's Required Consents
Schedule 5.4 Equipment Leases
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement"), made as of the 22nd
day of August 1996, is between Infinity Holdings Corp. of Orlando, a Delaware
corporation ("Seller"), and Spanish Broadcasting System, Inc., a Delaware
corporation ("Buyer").
Seller is a wholly-owned subsidiary of Infinity Broadcasting
Corporation, a Delaware corporation ("Infinity"). Seller is in the process of
acquiring radio station WYSY-FM, 107.9 mHz, Aurora, Illinois (the "Station"),
along with radio station WCKG(FM), Chicago, Illinois, from Xxx Broadcasting,
Inc. and WCKG, Inc. pursuant to an Asset Exchange Agreement dated as of June
26, 1996 (the "Cox Agreement").
Infinity has entered into an Agreement and Plan of Merger dated as of
June 20, 1996 (the "Merger Agreement"), pursuant to which Infinity will become
a wholly owned subsidiary of Westinghouse Electric Corporation, a Pennsylvania
corporation ("Westinghouse"). Under the Communications Act of 1934, as amended
(the "Act"), Westinghouse may not own more than five FM radio stations in the
Chicago market. Infinity and Westinghouse, through subsidiaries, each is
currently the licensee of two FM radio stations in the Chicago market.
Infinity, through the Cox Agreement, is in the process of acquiring two more FM
stations. But for the divesture of one FM radio station, Westinghouse, after
the merger with Infinity (the "Merger"), and consummation of the asset exchange
under the Cox Agreement, would be directly or indirectly the licensee of six FM
radio stations in the Chicago market, one in excess of the maximum number
permitted by the Act.
To ensure compliance with the Act, Infinity and Westinghouse have
committed to the Federal Communications Commission (the "FCC") to divest one of
their FM radio stations in the Chicago market prior to consummation of the
Merger.
Buyer has expressed an interest in acquiring certain assets used in
the operation of the Station, including its FCC Licenses (as defined below),
and other assets currently held by Infinity Broadcasting Corporation of
Illinois, a Delaware corporation ("Infinity-Illinois") and a wholly owned
subsidiary of Infinity. Infinity has agreed to sell the Station Assets (as
defined below) to Buyer, subject to consummation of the asset exchange pursuant
to the Cox Agreement and the Merger pursuant to the Merger Agreement.
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Therefore, the parties agree as follows:
ARTICLE 1
ASSETS TO BE CONVEYED
1.1. CLOSING. Subject to SECTION 12.1 (Termination Rights), the
closing (the "Closing") of the sale and purchase of the Station Assets, as
defined below, shall take place in the offices of Xxxxxxxxx, Xxxxxx & Xxxxxx,
0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X., at 10:00 a.m., local time, on the last
to occur of the following: (a) the day on which the Merger is being
consummated; (b) the day on which the asset exchange pursuant to the Cox
Agreement is being consummated; and (c) the fifth (5th) business day following
the FCC's grant of the FCC Application, or at such other place, time or date as
Buyer and Seller may agree in writing.
1.2. TRANSFER OF ASSETS. At the Closing, Seller shall sell, assign,
transfer and convey, or cause Infinity-Illinois to sell, assign, transfer and
convey, to Buyer, and Buyer shall purchase from Seller and Infinity-Illinois,
the following assets (the "Station Assets"):
(a) all of Seller's rights in and to the FCC licenses,
permits and other authorizations, including any temporary waiver or special
temporary authorization, issued to or held by Seller exclusively in connection
with the conduct of the business and operation of the Station, including any
pending applications therefor, as set forth in Schedule 1.2(a) (the "FCC
Licenses").
(b) all of Seller's right, title and interest in the
equipment, spare parts and other tangible personal property located at the
Station's transmitter and used or held for use exclusively in the operation of
the Station (the "Transmitter Site Equipment");
(c) all of Seller's right, title and interest in the
equipment, spare parts and other tangible personal property located at 000 Xxxx
Xxxx, Xxxxxx, Xxxxxxxx, and used in the operation of the Station (the "Main
Studio Equipment");
(d) all of Infinity-Illinois's right, title and interest in
the equipment, spare parts, furniture and other physical property located at
000 X. Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, and used or held for use exclusively
in the operation of FM radio station WJMK, Chicago, Illinois (the "WJMK Studio
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Equipment," and together with the Transmitter Site Equipment and the Main
Studio Equipment, the "Personal Property");
(e) all of Seller's rights under and interest in, to the
extent assignable, the leases contained in Schedule 1.2(e) (the "Main Studio
and Transmitter Site Leases");
(f) all of Infinity-Illinois's rights under and interest in,
to the extent assignable, the lease for office space at 000 X. Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx, contained in Schedule 1.2(f) (the "Office Space Lease," and
together with the Main Studio and Transmitter Site Leases, the "Assumed
Contracts"); and
(g) the Station's public inspection file, filings with the
FCC related to the Station, executed copies of all written Assumed Contracts,
and such technical information, engineering data, rights under manufacturers'
warranties as exist at Closing and relate exclusively to the Personal Property
being conveyed hereunder.
The Station Assets shall be delivered without any representation or warranty by
Seller except as expressly set forth in this Agreement, and Buyer acknowledges
that is has not relied on or been induced to enter into this Agreement by any
representation or warranty other than those expressly set forth in ARTICLE 5
hereof. The Station Assets shall be conveyed to Buyer free and clear of all
Liens, except as otherwise expressly provided in this Agreement.
1.3. EXCLUDED ASSETS. Except as set forth in SECTION 1.2, the Station
Assets shall not include any properties, assets, privileges, rights, interests
and claims, real and personal, tangible and intangible, of every type and
description, wherever located, of Seller, Infinity-Illinois, Infinity,
Westinghouse or any of their affiliates.
ARTICLE 2
PURCHASE PRICE
2.1. PURCHASE PRICE.
(a) The purchase price ("Purchase Price") for the Station
Assets shall be $33,000,000.
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(b) The parties stipulate that the Purchase Price is not
based upon the ratings or financial performance of the Station, because Buyer
is neither purchasing the Station as a going concern nor acquiring any goodwill
or intellectual property of the Station. Therefore, the Seller makes no
representation or warranty as to the Station's ratings or cash flow from the
date of this Agreement to and after the Closing, and Buyer's obligations under
this Agreement are not conditioned in any way on the Station's financial
performance between the date of this Agreement and the Closing.
2.2. PAYMENT OF PURCHASE PRICE. Buyer shall pay the Purchase
Price as follows:
(a) On the Closing Date, Buyer shall pay $30,000,000 by wire
transfer prior to 3:00 p.m., Washington, D.C. time, of immediately available
federal funds to an account at a bank or financial institution pursuant to wire
instructions that Seller shall deliver to Buyer at least one (1) business day
prior to the Closing Date.
(b) On the Closing Date, Buyer shall execute and deliver to
Seller a promissory note with a principal amount of $3,000,000 and otherwise in
a form reasonably acceptable to Seller and containing the provisions set forth
in Exhibit A (the "Promissory Note").
2.3. ALLOCATION. If Buyer and Seller are unable to agree between the
date hereof and the Closing on an allocation of the Purchase Price for income
tax purposes, Buyer shall arrange for an appraisal of the value of the tangible
assets included in the Station Assets. Any such appraisal shall be completed
within one hundred eighty (180) days after the Closing, and, based upon such
appraisal, if prepared, Buyer shall prepare an initial draft of IRS Form 8594.
Buyer shall forward such form to Seller for its approval. If the parties reach
an agreement on the contents of IRS Form 8594, Buyer and Seller shall each file
the IRS Form 8594 finally agreed upon by the parties with their respective
federal income tax return for the tax year in which the Closing occurs.
ARTICLE 3
ASSUMPTION OF OBLIGATIONS
3.1. ASSUMPTION OF OBLIGATIONS. At the Closing, Buyer shall assume
and undertake to pay, satisfy or discharge (a) all liabilities, obligations and
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commitments of Seller or Infinity-Illinois under the Assumed Contracts, arising
or accruing after 12:01 a.m., Chicago time, on the Closing Date (the "Effective
Time"), and (b) all liabilities, obligations and commitments arising from or
relating to the ownership of the Station Assets after the Effective Time.
3.2. LIMITATION. Except as set forth in this SECTION 3.1, Buyer
expressly does not, and shall not, assume or be deemed to assume, under this
Agreement or otherwise by reason of the transactions contemplated hereby, any
liabilities, obligations or commitments of Seller or Infinity-Illinois of any
nature whatsoever.
ARTICLE 4
PRORATIONS
All expenses arising from the operation of the Station Assets prior to
Closing shall be paid by Seller. All expenses arising from the operation of the
Station Assets after Closing shall be paid by Buyer. Any real estate taxes
shall be apportioned on the basis of the number of days that each party owned
such real property during the relevant tax year.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
5.1. ORGANIZATION AND STANDING. Seller is a corporation duly
formed, validly existing and in good standing under the laws of the State of
Delaware, and has all necessary corporate power and authority to own, lease and
operate and to carry on the business of the Station.
5.2. AUTHORIZATION AND BINDING OBLIGATION. Seller has all necessary
power and authority to enter into and perform this Agreement and the
transactions contemplated hereby, and Seller's execution, delivery and
performance of this Agreement have been duly and validly authorized by all
necessary action on its part. This Agreement has been duly executed and
delivered by Seller and constitutes its valid and binding obligation
enforceable against Seller in accordance with its terms.
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5.3. ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS. Except as
set forth in ARTICLE 7 and in Schedule 5.3 hereto, the execution, delivery and
performance of this Agreement by Seller: (a) do not and will not violate any
provisions of Seller's organizational documents; (b) do not and will not
require the consent or approval of or any filing with any third party or
governmental authority; (c) do not and will not violate any applicable law,
judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority; and (d) do not and will not, either alone or with the
giving of notice or the passage of time, or both, conflict with, constitute
grounds for termination or acceleration of or result in a breach of the terms,
conditions or provisions of, or constitute a default under any agreement,
lease, instrument, license or permit to which Seller is now subject.
5.4. FCC AUTHORIZATIONS.
(a) Schedule 1.2(a) contains a true and complete list of the
FCC Licenses, and there are no other licenses, permits or other authorizations
from the FCC required for the lawful conduct of the business and operation of
the Station in the manner now conducted. The FCC Licenses are in full force and
effect. All required FCC regulatory fees with respect to the FCC Licenses have
been paid. The FCC licenses have been issued for the full terms customarily
issued to a radio broadcast station in the State of Illinois, and the FCC
Licenses are not subject to any condition except for conditions shown on the
face of the FCC Licenses, applicable to radio broadcast licenses generally or
otherwise disclosed in Schedule 1.2(a).
(b) Except as set forth in Schedule 1.2(a), to Seller's
knowledge, there are no applications, petitions, complaints, proceedings or
other actions pending or threatened before the FCC relating to the Station,
other than proceedings affecting the radio broadcasting industry generally.
(c) Seller has no reason to believe that the FCC assignment
contemplated herein might be challenged or might not be granted by the FCC in
the ordinary course.
5.5. TITLE TO AND CONDITION OF PERSONAL PROPERTY. At the Closing,
Seller or Infinity-Illinois, as the case may be, will have good title in the
Personal Property free and clear of all Liens. At the Closing, the Personal
Property will be in good operating condition and repair (ordinary wear and tear
excepted), will be performing satisfactory and will be in material compliance
with the rules and regulations of the FCC and all other applicable federal,
state and local statues,
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ordinances, rules and regulations. The operating equipment, at Closing, will be
sufficient to permit the Station to operate in accordance with the FCC Licenses
and the rules and regulations of the FCC.
5.6. ASSUMED CONTRACTS. Seller has delivered to Buyer true and
complete copies of all of the Assumed Contracts. At the Closing, all Assumed
Contracts will be valid, binding and enforceable by Seller or Infinity-Illinois
in accordance with their respective terms, except as limited by laws affecting
creditors' rights or equitable principles generally. At the Closing, Seller and
Infinity-Illinois will have complied in all material respects with all Assumed
Contracts. To Seller's knowledge, no other contracting party will be in
material default under any of the Assumed Contracts as of the Closing. Except
as set forth in Schedule 5.3, as of the Closing, Seller and Infinity-Illinois
will have full legal power and authority to assign their rights under the
Assumed Contracts to Buyer in accordance with this Agreement on terms and
conditions no less favorable than those in effect on the date hereof, and such
assignment will not require the consent of any third party or affect the
validity, enforceability and continuity of any of the Assumed Contracts.
5.7. LITIGATION. There is no claim, litigation, arbitration,
proceeding or investigation pending or, to Seller's knowledge, threatened
against or affecting the Station or the Station Assets in any court or before
any arbitrator, or before or by any governmental department, commission,
bureau, board, agency or instrumentality, domestic or foreign, or that seeks to
enjoin or prohibit, or otherwise questions the validity of, any action taken or
to be taken in connection with this Agreement.
5.8. COMPLIANCE WITH LAWS. Except as disclosed on Schedule 5.8, Seller
has complied in all material respects with, and is not in violation of any
federal, state or local laws, regulations or orders relating to the operation of
the Station. Without limiting the generality of the foregoing:
(a) The Station's transmitting and studio equipment is
operating in accordance with the terms and conditions of the FCC Licenses and
all underlying construction permits, and the rules, regulations and policies of
the FCC, including, without limitation all regulations concerning equipment
authorization and human exposure to radio frequency radiation.
(b) Seller has, in the conduct of the Station's business,
complied in all material respects with all applicable laws, rules and
regulations relating to the employment of labor, including those concerning
wages, hours, equal
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employment, collective bargaining, pension and welfare benefit plans, and the
payment of social security and similar taxes, and Seller is not liable for any
arrearages of wages or any tax penalties due to any failure to comply with any
of the foregoing.
(c) Seller has received no notification from the FCC or any
other governmental agency that Seller's employment practices fail to comply
with established laws, rules and/or policies.
(d) All ownership reports, employment reports and other
documents required to be filed by the Seller with the FCC have been so filed.
Such items as are required to be placed in the Station's local public record
files have been placed in such files. All proofs of performance and
measurements that are required to be made by Seller with respect to the
Station's transmission facilities have been completed and filed at the Station.
All information contained in the foregoing documents is true, complete and
accurate in all material respects.
5.9. BROKER'S FEES. Neither Seller nor any person or entity acting on
his behalf 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, and no person or entity is entitled to any such payment from Seller in
connection with the transactions contemplated by this Agreement.
5.10. BANKRUPTCY. No insolvency proceedings of any character,
including without limitation, bankruptcy, receivership, reorganization,
composition or arrangement with creditors, voluntary or involuntary, affecting
Seller, are pending or threatened, and Seller has not made any assignment for
the benefit of creditors or taken any action in contemplation of or which would
constitute the basis for the institution of such insolvency proceedings.
5.11. UTILITIES. All utilities that are required for the current
occupancy and use of the leased premises for the purpose for which such
properties are presently being used by Seller, including, without limitation,
electric, water, sewer, telephone and similar devices, have been connected and,
to the knowledge of Seller, are in working order.
5.12. ASSETS FOR OPERATIONS. At Closing, the Station's Assets will
constitute all tangible assets necessary for the operation of the Station by
Buyer consistent with the FCC Licenses.
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5.13. FCC PROCESSING. There are no facts known to Seller that would
delay the consummation of the transactions contemplated by this Agreement,
beyond the date of consummation of the Merger and the asset exchange under the
Cox Agreement and Seller has no reason to believe that the FCC Application
might be challenged or might not be granted by the FCC in the ordinary course.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
6.1. ORGANIZATION AND STANDING. Buyer is a corporation duly formed,
validly existing and in good standing under the laws of the State of New York
and has all necessary corporate power and authority to own, lease and operate
the Station Assets and to carry on the businesses of the Station on and after
the Closing Date.
6.2. AUTHORIZATION AND BINDING OBLIGATION. Buyer has all necessary
power and authority to enter into and perform this Agreement and the
transactions contemplated hereby, and Buyer's execution, delivery and
performance of this Agreement has been duly and validly authorized by all
necessary action on its part. This Agreement has been duly executed and
delivered by Buyer and constitutes its valid and binding obligation enforceable
against Buyer in accordance with its terms.
6.3. FCC QUALIFICATIONS. Buyer is qualified under the Communications
Act of 1934, as amended, and the rules and regulations of the FCC to be the
assignee of the FCC Licenses. There are no facts known to Buyer that would
delay the consummation of the transactions contemplated by this Agreement based
upon Buyer's qualifications. Buyer has no reason to believe that the FCC
assignment contemplated herein might be challenged or might not be granted by
the FCC in the ordinary course because of its qualifications. Buyer is
financially qualified to consummate the transactions contemplated by this
Agreement.
6.4. ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS.
Except as set forth in ARTICLE 7, the execution, delivery and performance of
this Agreement by Buyer: (a) do not and will not violate any provision of
Buyer's organizational documents; (b) do not and will not require the consent
of any third
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party or governmental authority; (c) do not and will not violate any law,
judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority; and (d) do not and will not, either alone or with the
giving of notice or the passage of time, or both, conflict with, constitute
grounds for termination or acceleration of or result in a breach of the terms,
conditions or provisions of, or constitute a default under any agreement,
lease, instrument, license or permit to which Buyer is now subject.
6.5. BROKER'S FEES. Neither Buyer nor any person or entity acting on
its behalf 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, other than Media Venture Partners, and Buyer is responsible for paying
any fees or commissions due to Media Venture Partners in connection with the
transactions contemplated by this Agreement.
6.6. BANKRUPTCY. No insolvency proceedings of any character,
including, without limitation, bankruptcy, receivership, reorganization,
composition or arrangement with creditors, voluntary or involuntary, affecting
Buyer are pending or threatened, and Buyer has made no assignment for the
benefit of creditors or taken any action in contemplation of or which would
constitute the basis for the institution of such insolvency proceedings.
ARTICLE 7
GOVERNMENTAL CONSENTS
7.1. FCC APPLICATION. (a) The assignment of the FCC Licenses as
contemplated by this Agreement is subject to the prior consent and approval of
the FCC. Between the date of this Agreement and the Closing, Buyer shall not
directly or indirectly, control the operation of the Station.
(b) No later than five (5) business days after the date of
this Agreement, Buyer and Seller shall each prepare and jointly file a complete
and grantable FCC Application. Seller and Buyer shall thereafter prosecute the
FCC Application in good faith and with all reasonable diligence and otherwise
use their best efforts to obtain the grant of the FCC Application as
expeditiously as practicable; provided, however, that neither Seller nor Buyer
shall have any obligation to satisfy any complainant or the FCC by taking any
steps which would have a material adverse effect upon Seller or Buyer or upon
any affiliated entity, but neither the expense nor inconvenience to a party of
defending against a complainant or an inquiry by the FCC shall be considered a
material adverse
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effect on such party. If the FCC Consent imposes any condition on any party
hereto, such party shall use its best efforts to comply with such condition;
provided, however, that no party shall be required to comply with any condition
that would have a material adverse effect upon it or any affiliated entity. If
reconsideration or judicial review is sought with respect to the FCC Consent,
the party or parties affected shall vigorously oppose such efforts for
reconsideration or judicial review; provided, however, that nothing herein
shall be construed to limit either party's right to terminate this Agreement
pursuant to ARTICLE 12 (Termination Rights).
(c) All FCC filing or grant fees shall be borne equally by
Buyer and Seller. Each party shall otherwise bear its own costs and expenses
(including the fees and disbursements of its counsel) in connection with the
preparation of the portion of the FCC Application to be prepared by it and in
connection with the processing and defense of that application.
7.2 COMPLIANCE WITH HSRA. Each party shall make or cause to be made in
a timely fashion, and in any event within thirty (30) days following the date
of this Agreement, all filings which are required in connection with the
transactions contemplated hereby under the HSRA, and shall furnish to the other
party all information that the other reasonably requests in connection with
such filings. The transfer of the Station Assets hereunder is conditioned upon
the expiration of the applicable waiting period under the HSRA without the
institution or threat of any action with respect to the consummation of the
transactions contemplated hereunder. Buyer and Seller shall split the cost of
any HSRA filing fees. Each party shall otherwise bear its own costs and
expenses (including the fees and disbursements of its counsel) in connection
with the preparation of any HSRA filing to be prepared by it and in connection
with the prosecution and defense of that filing; provided however, that Seller
shall reimburse Buyer for all reasonable attorneys' fees and expenses incurred
in responding on behalf of Buyer to any inquiry from the Federal Trade
Commission or the Antitrust Division of the Department of Justice.
7.3 OTHER GOVERNMENTAL CONSENTS. Promptly following the execution of
this Agreement, the parties shall prepare and file with the appropriate
governmental authorities any other requests for approval or waiver that are
required from such governmental authorities in connection with the transactions
contemplated hereby and shall diligently and expeditiously prosecute, and shall
cooperate fully with each other in the prosecution of, such requests for
approval or waiver and all proceedings necessary to secure such approvals and
waivers.
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Each party shall bear its own costs and expenses in connection with the
preparation of any filings, documents or requests to be prepared by it in order
to obtain such governmental consents, approvals or waivers and in connection
with any prosecution or defense by it of such filings, documents or requests.
ARTICLE 8
COVENANTS
8.1. CONDUCT OF BUSINESS. Between the date of this Agreement and
the Closing Date, except as expressly permitted by this Agreement or with the
prior written consent of Buyer, which shall not be unreasonably withheld,
Seller shall:
(a) comply in all material respects with all laws and
contractual obligations applicable to the Station or to the conduct of the
business of the Station;
(b) perform all material obligations relating to the
business of the Station;
(c) not sell, assign, lease or otherwise transfer or dispose
of any of the Station Assets, except for assets consumed or disposed of in the
ordinary course of business;
(d) maintain the Station Assets in customary repair,
maintenance and condition, replace all items of equipment at time intervals
consistent with prior practice, and repair or replace (subject to SECTION 8.5
(Risk of Loss)) any asset that may be damaged or destroyed with items of equal
or greater value and utility unless Seller determines in good faith that such a
repair or replacement is not necessary or useful for the continued operation of
the Station; and
(e) not modify the Assumed Contracts, as amended through
the date of this Agreement.
8.2. NOTIFICATION.
(a) Between the date of this Agreement and the Closing Date,
Seller shall promptly notify Buyer of (i) any litigation, arbitration or
administrative proceeding pending or, to its knowledge, threatened against
Seller to revoke, cancel, rescind, modify or fail to renew in the ordinary
course any of the FCC Licenses or which challenges the transactions
contemplated hereby,
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including any challenges to the FCC Application; (ii) the issuance of any order
to show cause, notice of violation, notice of apparent liability or notice of
forfeiture with respect to the Station; (iii) the submission, to Seller's
knowledge, of any material complaint against the Station or Seller with respect
to the Station or (iv) any notification from the Federal Trade Commission or
the Department of Justice;
(b) Seller shall promptly notify Buyer of any developments
that occur prior to Closing that cause or might cause a material adverse
consequence to the assets or the operation of the Station; provided, however,
that Seller's compliance with the disclosure requirement of SECTION 8.2 shall
not release Seller of any obligations with respect to any representation,
warranty or covenant of Seller in this Agreement or waive any condition to
Buyer's obligation under this Agreement;
(c) If Seller receives any fine, order, complaint, citation
or notice prior to the Closing Date which states that any aspect of the
Station's operation violates any rule or regulation of the FCC or any other
governmental authority (an "Administrative Violation"), including, without
limitation, any rules or regulations concerning the employment of labor or
equal employment opportunity, Seller shall notify Buyer of the Administrative
Violation, remove or correct the Administrative Violation, and be responsible
for the payment of all costs associated therewith, including any fines or back
pay that may be assessed.
8.3. THIRD-PARTY CONSENTS. Between the date of this Agreement and the
Closing Date, Seller shall use reasonable efforts to obtain the consent of any
third party necessary for the assignment to Buyer of any of the Assumed
Contracts; provided, that Seller shall not be obligated to pay any money to
obtain such consent. In the event a consent or waiver required with respect to
the assignment by Seller to Buyer of any of the Assumed Contract has not been
obtained on or before the Closing Date, Seller shall use reasonable efforts to
provide Buyer with the benefits of any such Assumed Contract (including,
without limitation, permitting Buyer to enforce any rights of Seller under such
Assumed Contract), and Buyer shall, to the extent Buyer is provided with the
benefits of such Assumed Contract, perform all obligations of Seller
thereunder.
8.4. PRE-CLOSING EFFORTS. Between the date of this Agreement and
the Closing, each party shall use its reasonable efforts to cause the
fulfillment at the earliest practicable date of all of the conditions to the
obligations of the other party to consummate the sale and purchase under this
Agreement. Neither party shall take any action which is materially
inconsistent with its obligations under
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this Agreement or that would materially hinder or delay the consummation of the
transactions contemplated by this Agreement. In particular, neither party shall
take any action that would result in its disqualification to hold the FCC
Licenses or in any way delay grant of the FCC Application or consummation of
the transactions contemplated by this Agreement. Should either party become
aware of any such fact or circumstance, such party shall promptly inform the
other.
8.5. RISK OF LOSS. The risk of loss or damage to the Station Assets
prior to the Effective Time shall be upon Seller. Seller shall repair, replace
and restore any damaged or lost item of Personal Property to its prior
condition as soon as possible and in no event later than the Effective Time,
unless such item was obsolete and unnecessary for the continued operation of
the Station consistent with past practice. If Seller is unable or fails to
repair, restore or replace a lost or damaged item required to be repaired or
replaced by Seller prior to the Closing, Buyer shall reimburse Buyer for the
cost of the repair, restoration or replacement of such item incurred by Buyer
after the Closing.
8.6. CONFIDENTIALITY.
(a) Buyer and Seller shall each keep confidential all
information obtained by it with respect to the other in connection with this
Agreement, except where such information is known or available through other
lawful sources or where its disclosure is required in accordance with
applicable law. If the transactions contemplated hereby are not consummated for
any reason, Buyer and Seller shall return to the other, without retaining a
copy thereof, any schedules, documents or other written information, including
all financial information, obtained from the other in connection with this
Agreement and the transactions contemplated hereby.
(b) Except as required by the FCC in connection with the
filing of the FCC application, without the prior consent of both Buyer and
Seller, there shall be no public announcement relating to this Agreement or the
transactions proposed herein.
8.7. FURTHER ASSURANCES. Seller and Buyer shall cooperate and
take such actions, and execute such other documents, at the Closing or
subsequently, as may be reasonably requested by the other in order to carry out
the provisions and purposes of this Agreement.
8.8. ACCESS. Between the date hereof and the Closing Date, Seller
shall give, upon prior reasonable notice, Buyer or representatives of Buyer
(including
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consultants and advisors) reasonable access to the Station and its assets. It
is expressly understood that, pursuant to this SECTION 8.8, Buyer, at its sole
expense, shall be entitled to make such engineering and inspection of the
Station and its assets as Buyer may desire, so long as the same do not
unreasonably interfere with Seller's operation of the Station in Seller's
reasonable judgment.
8.9. EMPLOYEE MATTERS. It is specifically understood and agreed
that Buyer does not plan to offer employment to any of Station's employees on
the Closing Date. Rather, Seller shall be responsible for and pay all
termination, vacation and sick leave payments to all of its employees as of the
Closing Date.
ARTICLE 9
CONDITIONS PRECEDENT
9.1. TO BUYER'S OBLIGATIONS. The obligations of Buyer hereunder
are, at its option, subject to satisfaction, at or prior to the Closing Date,
of each of the following conditions:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS.
(i) All representations and warranties made by
Seller in this Agreement shall be true and complete in all material respects on
and as of the Closing Date (except to the extent they expressly relate to an
earlier time, in which case they shall have been true and correct only as of
such earlier time) as if made on and as of that date, except to the extent
changes are permitted under SECTION 8.1 of this Agreement.
(ii) All of the terms, covenants and conditions to
be complied with and performed by Seller under this Agreement on or prior to
Closing Date shall have been complied with or performed in all material
respects.
(b) FCC CONSENT. The FCC Consent shall have been obtained
and shall be effective.
(c) NO INJUNCTION. No order of any court or administrative
agency shall be in effect which restrains or prohibits the transactions
contemplated by this Agreement in accordance with its terms.
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(d) DELIVERIES. Seller shall have made or stand willing to
make all deliveries required under SECTION 10.1.
9.2 TO SELLER'S OBLIGATIONS. The obligations of Seller hereunder
are, at its option, subject to satisfaction, at or prior to the Closing Date,
of each of the following conditions:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS.
(i) All representations and warranties made by
Buyer in this Agreement shall be true and complete in all material respects on
and as of the Closing Date (except to the extent they expressly relate to an
earlier time, in which case they shall have been true and correct only as of
such earlier time) as if made on and as of that date.
(ii) All of the terms, covenants and conditions to
be complied with and performed by Buyer under this Agreement on or prior to the
Closing Date shall have been complied with or performed in all material
respects.
(b) FCC CONSENT. The FCC Consent shall have been obtained
and shall be effective.
(c) NO INJUNCTION. No order of any court or administrative
agency shall be in effect which restrains or prohibits the transactions
contemplated by this Agreement in accordance with its terms.
(d) ACQUISITION OF THE STATION. The asset exchange
pursuant to the Cox Agreement shall have been consummated.
(e) MERGER. The Merger pursuant to the Merger Agreement shall
have been consummated (or all conditions thereto shall have been satisfied
and/or waived and such consummation shall be taking place on the same day as
the Closing Date).
(f) DELIVERIES. Buyer shall have made or stand willing to
make all the deliveries required under SECTION 10.2 and shall have paid or
stand willing to pay the Purchase Price as provided in SECTION 2.2.
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ARTICLE 10
DOCUMENTS TO BE DELIVERED AT THE CLOSING
10.1. DOCUMENTS TO BE DELIVERED BY SELLER. At the Closing, Seller
shall deliver to Buyer the following:
(a) a copy of the resolution of the board of directors of
Seller, certified by an authorized officer of Seller, authorizing the
execution, delivery and performance of this Agreement;
(b) instruments of conveyance and transfer, in form and
substance reasonably satisfactory to counsel to Buyer, effecting the sale,
transfer, assignment and conveyance of the Station Assets to Buyer, including,
but not limited to, the following:
(i) an assignment of the FCC Licenses;
(ii) bills of sale for all Personal Property;
(iii) assignments of the Assumed Contracts, together with
all third party consents as provided in SECTION 8.3;
(c) if by the Closing the FCC Consent has not become a Final
Order, an unwind agreement in the form attached at Exhibit B (the "Unwind
Agreement") executed by Seller; and
(d) such other documents as may reasonably be requested by
Buyer's counsel.
10.2. DOCUMENTS TO BE DELIVERED BY BUYER. At the Closing, Buyer
shall deliver to Seller the following:
(a) a copy of the resolution of the board of directors of
Buyer, certified by an authorized officer of Buyer, authorizing the execution,
delivery and performance of this Agreement;
(b) instruments, in form and substance reasonably
satisfactory to Seller and its counsel, pursuant to which Buyer assumes the
obligations, liabilities and commitments of Seller as provided in ARTICLE 3;
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(c) immediately available wire transferred federal funds as
provided in SECTION 2.2;
(d) the Promissory Note executed by Buyer;
(e) if by the Closing the FCC Consent has not become a
Final Order, the Unwind Agreement executed by Buyer; and
(f) such other documents as may reasonably be requested by
Seller's counsel.
ARTICLE 11
INDEMNIFICATION, SURVIVAL
11.1. SELLER'S INDEMNITIES. From and after the Closing, Seller shall
indemnify, defend, and hold harmless Buyer and its affiliates and their
respective directors, officers, employees, and representatives, and the
successors and assigns of any of them, from and against, and reimburse them
for, all claims, damages, costs and expenses, including, without limitation,
interest, penalties, court costs and reasonable attorneys' fees and expenses,
resulting from:
(a) any liabilities of Seller or its affiliates not assumed
by Buyer under this Agreement;
(b) the breach of any covenant set forth in this Agreement
to be performed prior to or after the Closing by Seller; or
(c) any failure to comply with any "bulk sales" laws
applicable to the transactions contemplated hereby.
11.2. BUYER'S INDEMNITIES. From and after the Closing, Buyer shall
indemnify, defend and hold harmless Seller and its affiliates and their
respective directors, officers, employees, and representatives, and the
successors and assigns of any of them, from and against, and reimburse them
for, all claims, damages, costs and expenses, including, without limitation,
interest, penalties, court costs and reasonable attorneys' fees and expenses,
resulting from the failure of Buyer to perform any of its obligations under
this Agreement or from the operation of Station by Buyer.
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11.3. PROCEDURE FOR INDEMNIFICATION. The procedure for indemnification
shall be as follows:
(a) The party seeking indemnification under this ARTICLE 11
(the "Claimant") shall give notice to the party from whom indemnification is
sought (the "Indemnitor") of any claim, whether solely between the parties or
brought by a third party, reasonably specifying (i) the factual basis for the
claim, and (ii) the amount of the claim if then known. If the claim relates to
an action, suit or proceeding filed by a third party against Claimant, notice
shall be given by Claimant within fifteen (15) days after written notice of the
action, suit or proceeding was given to Claimant. In all other circumstances,
notice shall be given by Claimant within thirty (30) days after Claimant
becomes, or should have become, aware of the facts giving rise to the claim.
Notwithstanding the foregoing, Claimant's failure to give Indemnitor timely
notice shall not preclude Claimant from seeking indemnification from Indemnitor
if Claimant's failure has not materially prejudiced Indemnitor's ability to
defend the claim or litigation.
(b) With respect to claims between the parties, following
receipt of notice from the Claimant of a claim, the Indemnitor shall have
thirty (30) days to make any investigation of the claim that the Indemnitor
deems necessary or desirable. For the purposes of this investigation, the
Claimant agrees to make available to the Indemnitor and/or its authorized
representatives the information relied upon by the Claimant to substantiate the
claim. If the Claimant and the Indemnitor cannot agree as to the validity and
amount of the claim within the 30- day period (or any mutually agreed upon
extension thereof), the Claimant may seek appropriate legal remedy.
(c) With respect to any claim by a third party as to which
the Claimant is entitled to indemnification hereunder, the Indemnitor shall
have the right at its own expense to participate in or assume control of the
defense of the claim with counsel reasonably acceptable to Claimant, and the
Claimant shall cooperate fully with the Indemnitor, subject to reimbursement
for reasonable expenses incurred by the Claimant as the result of a request by
the Indemnitor. If the Indemnitor elects to assume control of the defense of
any third-party claim, the Claimant shall have the right to participate in the
defense of the claim at its own expense. If the Indemnitor does not elect to
assume control or otherwise participate in the defense of any third party
claim, Claimant may, but shall have no obligation to, defend or settle such
claim or litigation in such a manner as it deems appropriate, and in any event
Indemnitor shall be bound by the results obtained by the Claimant with respect
to the claim (by default or otherwise) and shall promptly reimburse Claimant
for the amount of all expenses (including the amount of any judgment rendered),
legal or otherwise, incurred in connection
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with such claim or litigation. The Indemnitor shall be subrogated to all rights
of the Claimant against any third party with respect to any claim for which
indemnity was paid.
11.4. LIMITATIONS.
(a) Neither Seller nor Buyer shall have any obligation to the
other party for any matter described in SECTION 11.1 or SECTION 11.2, as the
case may be, except upon compliance by the other party with the provisions of
this ARTICLE 11, particularly SECTION 11.3.
(b) Neither party shall be required to indemnify the other
party under this ARTICLE 11 unless (i) written notice of a claim under this
ARTICLE 11 was received by the party within the pertinent survival period
specified in SECTION 11.5 and (ii) unless and until the aggregate amount of
claims against the party to which the other party (as a Claimant) is entitled
to be indemnified under this Agreement exceeds $5,000, and then only for the
excess over $5,000. Neither party shall have any liability to the other party
under any circumstances for special, consequential, punitive or exemplary
damages.
11.5. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties, covenants, indemnities and agreements contained in
this Agreement or in any certificate, document or instrument delivered pursuant
to this Agreement are and will be deemed and construed to be continuing
covenants, indemnities and agreements and shall survive the Closing for a
period of twelve (12) months after the Closing Date (the "Survival Period"). No
claim may be brought under this Agreement unless written notice describing in
reasonable detail the nature and basis of such claim is given on or prior to
the last day of the Survival Period. In any event such notice is given, the
right to indemnification with respect thereto shall survive the Survival Period
until such claim is finally resolved and any obligations thereto are fully
satisfied. Any investigation by or on behalf of any party hereto shall not
constitute a waiver as to enforcement of any representation, warranty, covenant
or agreement contained herein.
11.6. SOLE REMEDY. After the Closing, the right to indemnification
under this ARTICLE 11 shall be the exclusive remedy of any party in connection
with any breach or default by another party under this Agreement.
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ARTICLE 12
TERMINATION RIGHTS
12.1. TERMINATION.
(a) This Agreement may be terminated by either Buyer or
Seller, if the party seeking to terminate is not in material default or breach
of this Agreement, upon written notice to the other upon the occurrence of any
of the following:
(i) if the other party is in material breach of this
Agreement and such breach has been neither cured within ten
(10) days after written notice of such breach nor waived by
the party giving such termination notice;
(ii) if there shall be in effect any order or decree
from the Department of Justice or any judgment, final decree
or order that would prevent or make unlawful the Closing or
if the FCC shall have released a hearing designation order
requiring a formal hearing on the FCC Application; or
(iii) if the Closing has not occurred by
June 30, 1997.
(b) This Agreement may be terminated by mutual written
consent of Buyer and Seller.
12.2. EFFECT OF TERMINATION.
In the event of termination of this Agreement pursuant to
SECTION 12.1, this Agreement (other than SECTION 8.6 (Confidentiality), which
shall remain in full force and effect) shall forthwith become null and void,
and no party hereto (nor any of their respective affiliates, directors,
officers or employees) shall have any liability or further obligation, except
as provided in this ARTICLE 12 and in ARTICLE 13; provided, that nothing in
this SECTION 12.2 shall relieve any party from liability for any breach of this
Agreement.
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ARTICLE 13
REMEDIES UPON DEFAULT; SPECIFIC PERFORMANCE
13.1. DEFAULT BY SELLER; SPECIFIC PERFORMANCE. Seller recognizes that,
in the event Seller defaults in the performance of its obligations under this
Agreement, monetary damages alone will not be adequate. In such event, Buyer
shall be entitled to obtain specific performance of the terms of this
Agreement. In addition, Buyer shall be entitled to obtain from Seller court
costs and reasonable attorneys' fees and expenses incurred by it in enforcing
its rights hereunder. As a condition to seeking specific performance, Buyer
shall not be required to have tendered the Purchase Price specified in ARTICLE
2 of this Agreement, but shall be ready, willing and able to do so.
13.2. DEFAULT BY BUYER; LIQUIDATED DAMAGES. If Buyer breaches or
defaults in its obligations under this Agreement, Seller may pursue any legal
or equitable remedies available to it and shall be entitled to obtain from
Buyer court costs and reasonable attorneys' fees and expenses incurred by it in
enforcing its rights hereunder.
ARTICLE 14
OTHER PROVISIONS
14.1. TRANSFER TAXES AND EXPENSES. All recordation, transfer,
documentary, excise, sales or use taxes or fees imposed on this transaction
shall be split by Buyer and Seller. Except as otherwise provided in this
Agreement, each party shall be solely responsible for and shall pay all other
costs and expenses incurred by it in connection with the negotiation,
preparation and performance of and compliance with the terms of this Agreement.
14.2. BENEFIT AND ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns. Neither Buyer nor Seller may assign its rights under
this Agreement without the prior written consent of the other party hereto;
provided, however, that Seller may, without the consent of Buyer, assign its
rights hereunder, together with the FCC Licenses and other of the Station
Assets owned or held by Seller, to a trust of which Seller or its affiliates is
the sole beneficiary (the "Disposition Trust"), whether directly or through a
transfer of such rights and assets to a subsidiary which is then conveyed to
such trust, all in accordance with applicable FCC rules and regulations.
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14.3. ENTIRE AGREEMENT; SCHEDULES; AMENDMENT; WAIVER. This Agreement,
and the exhibits and schedules hereto and thereto, embody the entire agreement
and understanding of the parties hereto and supersede any and all prior
agreements, arrangements and understandings relating to the matters provided
for herein. Any matter that is disclosed in a Schedule hereto in such a way as
to make its relevance to the information called for by another Schedule readily
apparent shall be deemed to have been included in such other Schedule,
notwithstanding the omission of an appropriate cross-reference. No amendment,
waiver of compliance with any provision or condition hereof, or consent
pursuant to this Agreement shall be effective unless evidenced by an instrument
in writing signed by the party against whom enforcement of any waiver,
amendment, change, extension or discharge is sought. No failure or delay on the
part of Buyer or Seller in exercising any right or power under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof
or the exercise of any other right or power.
14.4. HEADINGS. The headings set forth in this Agreement are for
convenience only and shall not control or affect the meaning or construction of
the provisions of this Agreement.
14.5. COMPUTATION OF TIME. If after making computations of time
provided for in this Agreement, a time for action or notice falls on Saturday,
Sunday or a Federal holiday, then such time shall be extended to the next
business day.
14.6. GOVERNING LAW; WAIVER OF JURY TRIAL. The construction and
performance of this Agreement shall be governed by the laws of the State of New
York without regard to its principles of conflict of law. BUYER AND SELLER
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING ANY COUNTERCLAIM
MADE IN SUCH ACTION OR PROCEEDING, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE DECIDED SOLELY BY A JUDGE. Buyer and Seller hereby acknowledge that
they have each been represented by counsel in the negotiation, execution and
delivery of this Agreement and that their lawyers have fully explained the
meaning of the Agreement, including in particular the jury-trial waiver. Any
question of doubtful interpretation shall not be resolved by any rule providing
for interpretation against the party who causes the uncertainty to exist or
against the drafter of this Agreement.
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14.7. ATTORNEYS' FEES. In the event of any dispute between the parties
to this Agreement, Seller or Buyer, as the case may be, shall reimburse the
prevailing party for its reasonable attorneys' fees and other costs incurred in
enforcing its rights or exercising its remedies under this Agreement. Such
right of reimbursement shall be in addition to any other right or remedy that
the prevailing party may have under this Agreement.
14.8. SEVERABILITY. If any term or provision of this Agreement, or the
application thereof to any person or circumstance shall, to any extent be held
invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each such term and provision of this Agreement shall be valid and be enforced
to the fullest extent permitted by law.
14.9. NOTICES. Any notice, demand or request required or permitted
to be given under the provisions of this Agreement shall be in writing,
addressed to the following addresses, or to such other address as any party may
request.
If to Seller:
c/o Infinity Broadcasting Corporation
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Mr. Xxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxxx, Xxxxxx & Xxxxxx
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
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If to Buyer:
Xx. Xxxx Xxxxxxx, Xx.
Spanish Broadcasting System, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy (which shall not constitute notice) to:
Xxxx Xxxxxxx Xxxxxxx Xxxx & Handler, LLP
000 00xx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 202-682-3580
Any such notice, demand or request shall be deemed to have been duly delivered
and received (a) on the date of personal delivery, or (b) on the date of
transmission, if sent by facsimile (but only if a hard copy is also sent by
overnight courier), or (c) on the date of receipt, if mailed by registered or
certified mail, postage prepaid and return receipt requested, or (d) on the
date of a signed receipt, if sent by an overnight delivery service, but only if
sent in the same manner to all persons entitled to receive notice or a copy.
14.10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
14.11. EXCLUSIVE DEALINGS. For so long as this Agreement remains in
effect, if Buyer is not in breach, neither Seller, its officers, directors or
employees, nor any person acting on Seller's behalf, shall directly or
indirectly solicit or initiate any offer from, or conduct any negotiations
with, any person other than Buyer concerning the acquisition of the Station.
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ARTICLE 15
DEFINITIONS
15.1. DEFINED TERMS. Unless otherwise stated in this Agreement, the
following terms when used herein shall have the meanings assigned to them below
(such meanings to be equally applicable to both the singular and plural forms
of the terms defined).
"Agreement" shall mean this Asset Purchase Agreement.
"Act" shall have the meaning set forth in the preamble of this
Agreement.
"Assumed Contracts" shall have the meaning set forth in SECTION 1.2.
"Buyer" shall have the meaning set forth in the preamble to this
Agreement.
"Claimant" shall have the meaning set forth in SECTION 11.3.
"Closing" shall have the meaning set forth in SECTION 1.1.
"Closing Date" shall mean the date on which the Closing is completed.
"Cox Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Disposition Trust" shall have the meaning set forth in SECTION 14.2.
"Effective Time" shall have the meaning set forth in SECTION 3.1.
"FCC" shall have the meaning set forth in the preamble to this
Agreement.
"FCC Application" shall mean the application that Seller and Buyer
must file with the FCC requesting its consent to the assignment of the FCC
Licenses from Seller to Buyer.
"FCC Consent" shall mean the action by the FCC granting the FCC
Application.
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"FCC Licenses" shall have the meaning set forth in SECTION 1.2.
"Final Order" shall mean action by the FCC, with respect to the FCC
Application (i) which has not been vacated, reversed, stayed, or suspended;
(ii) with respect to which no timely appeal, request for stay or petition for
rehearing, reconsideration or review by any party or by the FCC on its own
motion, is pending; and (iii) as to which the time for filing any such appeal
request, petition, or similar document or for the reconsideration or review by
the FCC on its own motion under the Communications Act of 1934, as amended, and
the rules and regulations of the FCC, has expired.
"GAAP" shall mean generally accepted accounting principles,
consistently applied.
"HSRA" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Xxx
0000, as amended, and the regulations adopted thereunder.
"Indemnitor" shall have the meaning set forth in SECTION 11.3.
"Infinity" shall have the meaning set forth in the preamble to this
Agreement.
"Liens" shall mean mortgages, deeds of trust, liens, security
interests, pledges, collateral assignments, conditional sales agreements,
leases, encumbrances, claims, or other defects of title, but shall not include
(i) liens for current taxes not yet due and payable, (ii) other liens imposed
by law (such as materialman's, mechanic's, carrier's, worker's and repairman's
liens) arising in the ordinary course of business (provided that such liens do
not interfere in any material respect with the use of the Station Assets as
currently used), (iii) valid leases or subleases to third parties with respect
to property not used in the operation of the Station, and (iv) defects in title
or other matters that are not material to the owner or lessee, as the case may
be.
"Main Studio Equipment" shall have the meaning set forth in
SECTION 1.2.
"Main Studio and Transmitter Site Leases" shall have the meaning set
forth in SECTION 1.2.
"Merger" shall have the meaning set forth in the preamble to this
Agreement.
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"Merger Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Notice of Disagreement" shall have the meaning set forth in SECTION
4.2.
"Office Space Lease" shall have the meaning set forth in SECTION 1.2.
"Personal Property" shall have the meaning set forth in SECTION 1.2.
"Prime Rate" shall mean the "prime rate" as published daily in the
Money Rates column of the Wall Street Journal (or the average of such rates if
more than one rate is indicated).
"Promissory Note" shall mean a promissory note in the amount of
$3,000,000 in substantially the form attached at Exhibit A.
"Proration Schedule" shall have the meaning set forth in SECTION 4.2.
"Purchase Price" shall have the meaning set forth in SECTION 2.1.
"Referee" shall have the meaning set forth in SECTION 4.2.
"Seller" shall have the meaning set forth in the preamble to this
Agreement.
"Seller's Proration Amount" shall have the meaning set forth in
SECTION 4.2.
"Station" shall have the meaning set forth in the preamble to this
Agreement.
"Station Assets" shall mean the assets to be transferred to Buyer
hereunder, as more fully specified in SECTION 1.2.
"Survival Period" shall have the meaning set forth in Section 11.5.
"To Buyer's knowledge," or words of similar import, shall mean to the
actual knowledge of the president or chief financial officer of Buyer.
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"To Seller's knowledge," or words of similar import, shall mean to the
actual knowledge of the president or chief financial officer of Seller.
"Transmitter Site Equipment" shall have the meaning set forth in
SECTION 1.2.
"Unwind Agreement" shall mean an unwind agreement in the form attached
at Exhibit B.
"Westinghouse" shall have the meaning set forth in the preamble to
this Agreement.
15.2. MISCELLANEOUS TERMS. The term "or" is disjunctive; the term
"and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms apply to females; feminine terms apply to males.
The term "includes" or "including" is by way of example and not limitation.
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IN WITNESS WHEREOF, the parties hereto have caused this Asset Purchase
Agreement to be duly executed as of the date first written above.
SELLER:
INFINITY HOLDINGS CORP. OF ORLANDO
By: /s/ XXX XXXXXXXX
-----------------------------------
Name: Xxx Xxxxxxxx
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Title: President/CEO
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BUYER:
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ XXXX XXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxx
------------------------------
Title: President
------------------------------