Exhibit 10.45
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT ("Agreement"), made and entered into as of
this 23rd day of November, 1998, by and between Arch Broadcasting, L.P, an
Illinois limited partnership ("Seller") and Radio One Inc., a Delaware
corporation ("Buyer").
WITNESSETH:
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WHEREAS, Seller at the time of Closing holds certain licenses, permits and
authorizations issued by the Federal Communications Commission (the
"Commission") for the operation of Station WFUN(FM), Bethalto, Illinois (the
"Station");
WHEREAS, Seller at the time of Closing holds title to certain assets herein
described in Section 1.1; and
WHEREAS, the Seller owns or leases and desires to sell and/or assign, and
Buyer desires to purchase and/or assume certain of the assets, property and
business used in the operation of the Station; and
NOW, THEREFORE, the parties, intending to be legally bound, agree as follows:
SECTION I
ASSETS TO BE SOLD
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1.1 On the Closing Date, Seller shall sell, assign, transfer, convey, set
over, and deliver to Buyer, and Buyer shall purchase and/or accept assignment of
the following (hereinafter collectively the "Assets"):
1.1.1 Authorizations. All licenses, permits and authorizations issued
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or granted by the Commission for the operation of, or used in connection with
the operation of the Station (hereinafter "Commission Authorizations"), whether
or not such grant occurs prior to or after the date of this Agreement, as listed
in Schedule 1.1.1.
1.1.2 Real Property. All of the Seller's rights in and to the land,
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buildings, improvements, and other real property and all leaseholds and other
interests in real property and the buildings and improvements thereon
(hereinafter collectively the "Real Property"), consisting of all real property
and leases, contracts and agreements creating such interests listed and
described in Schedule 1.1.2., whether or not such rights vest prior to or after
the date of this Agreement.
1.1.3 Tangible Personal Property. All of Seller's rights in and to the
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fixed and tangible personal property used in the operation of the Station,
including, but not limited to the physical assets and equipment, leasehold
improvements, furniture, fixtures, receivers, programming, tapes, transmitters,
switches and related equipment, and music libraries listed in Schedule 1.1.3,
together with replacements thereof, additions and alterations thereto, and
substitutions therefor, made between the date hereof and the Closing Date
(hereinafter collectively the "Tangible Personal Property").
1.1.4 Agreements. All Seller's rights to and in the contracts and
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agreements, and leases to which Seller or the Station are a party listed in
Schedule 1.1.4 (hereinafter collectively "Agreements"), together with all
contracts, agreements and leases, entered into or acquired by the Seller between
the date hereof and the Closing Date in accordance with the terms and
provisions of this Agreement.
1.1.5 lntangibles. All right, title and interest of Seller in and to
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the call letters "WFUN", together with other, intangible property of Seller used
or useful in the operation of or otherwise pertaining to the Station as set
forth on Schedule 1.1.5 attached hereto and made a part hereof (hereinafter
collectively the "Intangibles").
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1.1.6 Business Records. All of Seller's financial records, engineering
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reports, advertising reports, programming studies, consulting reports, computing
software, marketing data, ledger sheets, customer lists and business and
personnel records relating solely to the business or operation of the Station
(hereinafter collectively "Business Records") or to the assets or agreements
purchased by Buyer.
1.2 Excluded Assets. The Assets shall not include the following assets
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along with all rights, title and interest therein which shall be referred to as
the "Excluded Assets";
1.2.1 All cash, cash equivalents or similar type investments of
Seller, such as certificates of deposit, Treasury bills and other marketable
securities on hand and/or banks;
1.2.2 All tangible and intangible personal property disposed of or
consumed in the ordinary course of business between the date of this Agreement
and the Closing Date, or as permitted under the terms hereof;
1.2.3 The Accounts Receivable of the Station as of 11:59 p.m., local
time, on the day prior to the Closing date;
1.2.4 All agreements that have terminated or expired prior to the
Closing date in the ordinary course of business and as permitted hereunder;
1.2.5 Seller's minute books, charter documents, stock record books
and such other books and records as pertaining to the organization, existence or
share capitalization of Seller and duplicate copies of such records as are
necessary to enable seller to file its tax returns and reports as well as any
other records or materials relating to seller generally and not involving
specific aspects of the Station's operation;
1.2.6 Contracts of insurance, including the cash surrender value
thereof, and all insurance proceeds or claims made by seller relating to
property or equipment repaired, replaced or restored by Seller prior to the
Closing Date;
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1.2.7 Any and all other claims made by Seller with respect to
transactions prior to the Closing Date and the proceeds thereof to the extent
the Station has been made whole for any loss or damage they or their assets may
have suffered or incurred as a result of the item, event or occurrence giving
rise to such claim; and
1.2.8 All pension, profit sharing or cash or deferred (Section 401(k))
plans and trusts and the assets thereof and any other employee benefit plan or
arrangement and the assets thereof, if any, maintained by Seller.
SECTION 2
PURCHASE PRICE
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2.1 Purchase Price. In consideration of Seller's performance of this
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Agreement, the sale, assignment, transfer, conveyance, setting over, and
delivery of the Assets as defined hereinabove to Buyer, the total purchase price
(the "Purchase Price") to be paid by Buyer shall be the sum of Thirteen Million
Six Hundred Thousands DOLLARS ($13,600,000.00)
2.2 Payment of Purchase Price. The Purchase Price shall be paid to Seller
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as follows:
(a) Upon the full and complete execution of the Agreement, Buyer shall
deliver to Escrow Agent an xxxxxxx money escrow deposit in the amount of Four
Hundred Thirty Thousand DOLLARS ($430,000.00) (the "Escrow Xxxxxxx Deposit") in
the form of a cashier's check or by wire transfer of immediately available
funds. This amount shall be deposited in an interest bearing account in a
federally insured institution pursuant to the terms of an Escrow Agreement as
set forth in Exhibit A. The Escrow Xxxxxxx Deposit shall be applied at the
closing
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toward the purchase price. In addition, Buyer shall deliver to Seller's counsel,
Shainis & Xxxxxxxx, Chartered, the sum of Two Hundred and Fifty Thousand DOLLARS
($250,000.00). This money shall immediately be available to Seller. Buyers, at
the time of execution of the instant Asset Purchase Agreement, shall be provided
an assignment of Seller's rights in the principal of the Two Hundred Fifty
Thousand DOLLARS ($250,000.00) escrow with Coltre Broadcasting, Inc.
(b) At the Closing Date, Buyer will pay to Seller in the form of a
cashier's check or by wire transfer of immediately available funds to a bank
designated by Seller the sum of Eleven Million Four Hundred Seventy-five
Thousand DOLLARS ($11,475,000.00), as adjusted to reflect any Adjustments made
at Closing pursuant to Section 3 and any adjustments.
(c) At the Closing Date, Buyer will place into an escrow account by
wire transfer of immediately available funds the sum of One Million Six Hundred
Ninety-five Thousand DOLLARS ($1,695,000.00) plus tax liability reimbursement.
Such sum shall be held in an escrow agreement between the Seller and Buyer to be
executed at closing governing the use and distribution of those funds.
2.3 Allocation of Purchase Price. Prior to the Closing Date, the parties
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agree to allocate the Purchase Price in accordance with the requirements of
Section 1060 of the Internal Revenue Code of 1986. In the event that the
parties are unable to reach such an agreement prior to the Closing Date, they
will select a qualified, independent and nationally recognized appraiser of
broadcast properties and that firm's decision shall be binding upon the parties
and the fees and expenses shall be borne equally by Buyer and Seller. The
parties also agree to use such Purchase Price allocation in completing and
filing Internal Revenue Code Form 8594 for federal income tax purposes.
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SECTION 3
ADJUSTMENTS
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3.1 Adjustment Time. The "Adjustment Time" as used herein shall be 12:01
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A.M. current local time on the Closing Date.
3.2 Adjustment Items. The following items (the "Adjustment Items") shall
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be prorated as of the Adjustment Time, assuming a 365-day year or a 30-day or
31-day month, as appropriate, and monies shall be paid at Closing in accordance
with Section 3.3 herein below.
3.2.1 Rentals or other charges, payable or paid in respect of
leasehold interests or tenancies, or leased transmitter sites, studios, offices
or other Real Property or equipment under any lease or tenancy of Real Property,
and any and all equipment leases described in Schedule 1.1.2.
3.2.2 Real and personal property taxes and assessments (including
sewerage assessments and fees), levied or assessed against or otherwise paid or
payable with respect to any of the Assets.
3.2.3 Transferable license, permit, and registration fees, and like
items.
3.2.4 Wages and salaries of employees (but not including accruals for
bonuses, commissions on the sale of advertising broadcast prior to the Closing
date, vacation pay, sick leave and severance pay, all of which obligations, if
any, shall remain the responsibility of Seller), time sales agreements, license
fees, and all other income and expenses attributable to the ownership and
operation of the Station.
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3.2.5 Charges for utilities (including but not limited to electricity,
fuel, water, basic monthly telephone charges, long distance telephone calls, and
sanitation and garbage disposal) furnished to or in connection with the Station.
3.2.6 License agreements with ASCAP, BMI and SESAC.
3.2.7 Unpaid obligation of Seller with respect to any lease, contract,
or agreement which Buyer assumes, including, without limitation, unpaid prepaid
premiums on any insurance policies that Seller has agreed to assign to Buyer and
Buyer elects to assume.
3.2.8 Other similar items applicable to the Assets and/or attributable
to the operations and/or the business of the Station, it being the intention of
the parties that all operations and the business of the Station prior to the
Adjustment Time shall be for the account of Seller, and all operations and
business of the Station after the Adjustment Time shall be for the account of
Buyer.
3.2.9 Security deposits, if any.
3.2.10 If the amount of any real or personal property tax to be
prorated is not known on the Closing Date, such tax shall be apportioned on the
basis of the most recent tax assessment.
3.2.11 Buyer shall have no obligation to employ any of the employees
of Seller. On execution of this Agreement, Seller shall deliver to Buyer a
detailed list of all employees of the Station, their salaries, benefits and any
other job-related matters for Buyer's review.
3.3 Adjustments After Closing Date. If the amount of any items to be
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adjusted cannot be readily ascertained or agreed upon on the Closing Date,
proration of such items shall be determined within thirty (30) days after the
Closing Date and payment therefor shall be made to
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the party entitled thereto within five (5) days after notice of such
determination thereof has been given to Buyer or Seller, as the case may be. In
the event of any disputes between parties as to adjustments, the amounts not in
dispute shall nonetheless be paid at the time provided in this Section and such
disputes shall be determined by an independent certified public accountant
mutually acceptable to the parties. The accountant's resolution of the dispute
shall be final and binding on the parties, and a judgement may be entered
thereon in any court of competent jurisdiction. The fees and expenses of such
accountant shall be paid one-half by Seller and one-half by Buyer. The inability
of Seller and Buyer to resolve any adjustment shall not entitle Buyer to delay
the return of the Accounts Receivable pursuant to Section 11.
SECTION 4
APPLICATION TO AND CONSENT BY COMMISSION
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4.1 Commission Consent. Consummation of the purchase and sale provided
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for herein and the performance of the obligations of Seller and Buyer under this
Agreement are subject to the condition that the Commission shall have given its
consent in writing, without any condition materially adverse to Buyer or Seller,
to the assignment of the Commission Authorizations and all Other Authorizations
to Buyer. Such consent shall have become final (i.e. no longer subject to
administrative or judicial review).
4.2 Application For Commission Consent.
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(a) Seller and Buyer agree to proceed expeditiously and with due
diligence and to use their best efforts and to cooperate with each other in
seeking the Commission's approval of the transactions contemplated hereunder.
Within five (5) days after the date of this Agreement,
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each party shall prepare and file with the Commission the Assignment Application
and all information, data, exhibits, resolutions, statements, and other
materials necessary and proper in connection with such Assignment Application.
Each party further agrees expeditiously to prepare Application amendments
whenever such amendments are required by the Commission or its rules.
(b) Except as otherwise provided herein, each party will be solely
responsible for the expenses incurred by it in the preparation, filing and
prosecution of its respective portion of the Assignment Application. All filing
fees and grant fees imposed by the Commission should be paid one-half (1/2) each
by Seller and Buyer.
(c) Each party agrees to comply with any condition imposed on it by
the Commission, except that no party shall be required to comply with a
condition that would have a material adverse effect upon it unless the condition
was imposed as the result of a circumstance which constitutes a breach by that
party of any of its representations, warranties, or covenants in this Agreement.
Buyer and Seller shall oppose any efforts for reconsideration or judicial review
of the grant by the Commission of the Assignment Application (but nothing in
this Section shall limit any party's right to terminate this Agreement pursuant
to Section 17 of this Agreement).
4.3 Notice of Application. Seller shall, at its expense, give due notice
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of the filing of the Assignment Application by broadcasting on the Station, or
by such other means as may be required by the rules and regulations of the
Commission.
4.4 Delay in Approval of Application. Either party at its option may
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terminate this Agreement by five (5) business days prior written notice to the
other party, and without liability to the other party, at any time after one-
hundred eighty (180) days after the date of this
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Agreement if the Commission has not granted the Assignment Application within
that time, or at any time after two-hundred forty (240) days after the date of
this Agreement if the Commission grant of the Assignment Application has not
become final, provided that the party requesting termination is not the cause of
the Commission failing to timely grant the Assignment Application. In the event
of such termination, each party shall bear its own expenses, and the Escrow
Agent shall return to Buyer the Escrow Xxxxxxx Deposit plus accrued interest. In
the event Buyer is unable to procure Commission approval of the Assignment
Application due to events arising out of Seller's ownership of the Assets,
Seller agrees to undertake to satisfy any problems or issues with the Commission
or, alternatively, Buyer may at its option elect to terminate this Agreement and
shall receive a refund of the Escrow Xxxxxxx Deposit plus accrued interest plus
repayment of the Two-Hundred Fifty Thousand DOLLARS ($250,000.00). In the event
Buyer is unable to procure Commission approval of the Assignment Application due
to issues relating to Buyer's qualifications, Seller, at its option, may elect
to terminate this Agreement and shall retain the Escrow Xxxxxxx Deposit plus
accrued interest.
SECTION 5
ASSUMPTIONS
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5.1 Buyer's Assumed Obligations. Buyer covenants and agrees to assume at
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Closing and discharge following the Closing all of the unperformed duties of the
Seller accruing under the leases and the Agreements listed in Schedules 1.1.2
and 1.1.4 and under all advertising contracts for the sale of time for cash on
the Station, but only to the extent that such duties accrue after the Closing
date based on the operation of the Station by Buyer following the Closing Date.
Barter obligations shall be assumed by Buyer up to Five Thousand Dollars
($5,000.00) in the aggregate.
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5.2 Seller's Liability. Seller shall, remain liable for and covenants to
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pay, satisfy, or discharge, all liabilities, payment, obligations, and duties
under (a) the Agreements and any leases or other instruments transferred or
assigned to Buyer hereunder, accruing prior to or by reason of events occurring
prior to the Closing Date, and (b) all Agreements not being transferred to Buyer
no matter when the obligations occur.
SECTION 6
REPRESENTATIONS AND WARRANTIES OF THE SELLER
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To the extent Seller's representations and warranties are predicated on the
representations and warranties made to it in an Asset Purchase Agreement dated
July 6, 1998, as amended on September 8, 1998, Seller has no independent
knowledge of any untrue statements contained therein. However, Seller has not
independently verified these representations and warranties.
6.1 Organization and Standing.
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6.1.1 Seller is now and on the Closing Date will be a limited
partnership validly existing and in good standing under the laws of the State of
Illinois. Seller has the full power to own the assets and to carry on the
business of the Station as it now is being conducted and is qualified and in
good standing in the State of Illinois.
6.1.2 Seller has the full power and authority to enter into this
Agreement and all of Seller's Closing Documents that require Seller's signature.
Appropriate resolutions to the effect will be provided at Closing. The
execution, delivery and performance of this Agreement (as of the date of
execution of this Agreement and on the Closing Date) and the Seller's Closing
Documents (on the Closing Date) are or will be authorized by all necessary
action of the seller.
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6.2 Binding Effect of Agreement. This Agreement constitutes a valid and
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binding obligation of Seller enforceable against Seller in accordance with the
terms of the Agreement. Upon execution, the Seller's Closing Documents will
constitute valid and binding obligations of Seller enforceable against Seller in
accordance with their terms. The execution, delivery, and performance of this
Agreement or any of the Closing Documents does not violate any provision of the
Limited Partnership Agreement of Seller, or any contract provision or other
commitment to which Seller or any of its officers or directors of the Station is
a party or under which it or its property is bound, or any judgement or order,
and will not result in the creation or imposition of any lien, charge, security
interest, or encumbrance of any nature whatsoever upon any Assets.
6.3 Business Records and Financial Statements.
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6.3.1 Seller has maintained the business records of the Station in the
usual, regular and ordinary manner in accordance with good business practices.
6.3.2 Seller has provided Buyer with the financial statements for the
Station (the "Financial Statements"). The Financial Statements have been
prepared on an accrual basis in accordance with generally accepted accounting
principles. The Financial Statements accurately reflect the books, records and
accounts of the Station in all material respects and present fairly the
financial condition and results of the operation of the Station, as of the dates
and for the periods indicated.
6.4 Real and Tangible Personal Property.
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6.4.1 Real Property. Schedule 1.1.2 attached hereto accurately lists
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and describes all the Real Property leased or otherwise held or used by the
Station which is being assigned or transferred to the Buyer. The Real Property
listed in Schedule 1.1.2 comprises all of the real property interests necessary
to conduct the business or operations of the Station as now conducted. Seller
has good and marketable fee simple title, insurable at standard rates, to all of
the fee estates (including the improvements thereon) included in Real Property,
free and clear of all liens, mortgages, pledges, covenants, easements,
restrictions, encroachments, leases, charges, and other claims and encumbrances
of any nature whatsoever, and without reservation or exclusion of any mineral,
timber, or other rights or interests, except for liens for real estate taxes not
yet due and payable. To the extent the property is subject to any easements,
restrictions, encroachments and/or state and local zoning ordinances, these are
listed in schedule 1.1.2.a. Buyer accepts existing easements, restrictions,
encroachments and state and local zoning ordinances provided none of them
prevent the use of the properties for their present purpose.
6.4.2 Patents, Trademarks, Copyrights. The Intangible Property
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includes all call signs, slogans, and logos used to promote or identify the
Station. Seller has no knowledge of any infringement or unlawful or unauthorized
use of those promotional rights, including without limitation the use of any
call sign, slogan or logo by any broadcast station or cable system in the
Bethalto, Illinois metropolitan area which may be confusingly similar to the
call signs, slogans, and logos currently used by the Station.
6.4.3 Tangible Personal Property. Schedule 1.1.3 attached hereto
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accurately lists all, the material Tangible Personal Property owned, leased, or
otherwise held by the Station and/or Seller which is intended to be conveyed
hereunder, except as disclosed in Schedule 1.1.3. Seller is the owner of and at
Closing will have good, clear, marketable, and indefeasible title to
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all of the Tangible Personal Property listed in Schedule 1.1.3, free and clear
of all liens, charges, encumbrances, restrictions, debts, demands, or claims of
any kind or nature whatsoever.
6.4.4 Condition of Tangible Personal Property. The Tangible Personal
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Property listed in Schedule 1.1.3 (except as expressly noted herein) is in good
maintenance, operating condition, and repair in accordance with generally
accepted standards of practice in the broadcast industry, and to Seller's
knowledge, is free from defects and workmanship in all material respects.
6.5 Agreements.
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6.5.1 Schedule 1.1.4 accurately lists all agreements and other contracts
(or, when the same are oral, a complete and correct description thereof) with
respect to the Station to be conveyed hereby (except for contracts for the sale
of advertising time for cash) to which, as of the date hereof, Seller and/or the
Station is a party or by which Seller and/or the station may be bound or
obligated in any way.
6.5.2 The Agreements listed in Schedule 1.1.4 are in full force and effect
and are valid, binding, and enforceable in accordance with their terms, and
except as stated in Schedule 1.1.4, are assignable by Seller to Buyer on the
same terms and conditions as Seller now enjoys, and to the best of Seller's
knowledge, Seller has performed in all material respects, all the obligations
imposed upon Seller under any such Agreements or other obligations that are to
be performed as of the making of this warranty. Notwithstanding any other
Section of this Agreement, to the extent that the consent or approval of any
third person is required under any Agreement in order to assign such Agreement
from Seller to Buyer, Seller shall in good faith endeavor to obtain such
consents and approvals. If any such consent or approval is not obtained, then
Buyer shall have no obligation to assume that Agreement at Closing.
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6.5.3 To Seller's knowledge, there is no default by or claim of default
against the Seller or any other party to the Agreements listed in Schedule 1.1.4
or any event occurring that, with or without notice, lapse of time or the
occurrence of any other event, would result in a default under any such
Agreement by Seller or any other party. There are no contracts or agreements to
which the Seller and/or the Station is a party which may be binding upon the
Assets to be sold hereunder other than the Agreements expressly set forth in
Schedule 1.1.4 and other contracts and agreements entered into in the usual
course of business.
6.5.4 Leases. Schedule 1.1.2 accurately describes all of the leases
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which Buyer has agreed to assume to which the Seller and/or the Station are a
party or under which Seller and/or the Station are bound for the rental of real
property. All such leases are in full force and effect and valid, binding, and
enforceable in accordance with their terms, and Seller has duly performed all of
its material obligations under such leases. To the best of Seller's knowledge,
there is no default by or claim of default against Seller or any other party to
such leases, or any event or circumstance that with the passage of time or the
giving of notice or both would result in a default by Seller or any other party,
or any notice or termination existing with respect to any of such leases.
Seller's leases are assignable to Buyer on the same terms and conditions as
Seller now enjoys, except as stated in Schedule 1.1.2..
6.6 Authorizations.
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6.6.1 Seller at the time of Closing shall be the holder of all
licenses, permits, and authorizations necessary to operate the business of the
Station as it now is being conducted, including, without limitation, all
Commission Authorizations listed in Schedule 1.1.1. All such
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Commission Authorizations are validly existing authorizations for the operation
of facilities described therein under the Communications Act of 1934, as
amended. There is no action pending nor to the Seller's knowledge, threatened,
before the Commission or other body to revoke, refuse to renew, suspend or
modify any of the Commission Authorizations, or any action which may result in
the denial of any pending applications, the issuance of any cease and desist
orders, or the imposition of any administrative sanctions whatsoever with
respect to the Station or its operation, except as required to transfer same to
Buyer.
6.6.2 All reports, applications and other documents required to be
filed by Seller with the Commission or any other administrative body with
respect to the Station or its operations have been filed and all such reports,
applications and documents are true and correct in all material respects. There
are no matters that might result in the suspension or revocation of any
Commission Authorizations or any Other Authorizations pertaining to the Station.
6.7 Litigation and Insurance.
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6.7.1 Litigation; Compliance With Law. The Station is in compliance
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in all material respects with all applicable federal, state and local laws,
ordinances and regulations, including compliance with the Communications Act and
all rules and regulations issued thereunder. Other than proceedings affecting
the broadcasting industry in general, there is no complaint, claim, litigation,
investigation, or judicial, administrative, or other proceeding of any nature,
including, without limitation, a grievance, arbitration, or insolvency or
bankruptcy proceeding, pending, or to the best of the Seller's knowledge,
threatened, against the Station, Seller, or any of the Assets being sold or
transferred to Buyer, including, without limitation, any proceeding which may
(a) adversely affect the Assets or the Commission Authorizations to be
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assigned hereunder, or the operation of the Station, or the ability of Buyer to
own and operate the Station, or the use, ownership, or operation of any Assets
by Buyer, (b) restrain or enjoin the Closing or the consummation of the
transactions contemplated hereby, or (c) result in the revocation, modification
or suspension of the Commission Authorizations, or the issuance or imposition of
any administrative sanction that might adversely affect the Assets or the
Commission Authorizations, or the operation of the Station or the ability of
Buyer to own and operate the Station or the use, ownership, or operation of any
of the Assets by Buyer. In addition, to Seller'' knowledge, no such litigation,
investigation, or proceedings has been threatened. Seller will give Buyer prompt
notice of its discovery of any such basis or the institution or the threat of
any such litigation, investigation, or proceeding. Seller is not in default in
respect to any judgement, order, writ, injunction, decree, rule, or regulation
of any applicable court or governmental body, which default could have a
materially adverse effect on the Assets or the Station.
6.7.2 Insurance. All of the tangible Personal Property listed in
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Schedule 1.1.3 is insured under the policies listed and described in Schedule
6.7.2, including, without limitation, public liability and broadcaster's
liability insurance for the Station. All such policies are in full force and
effect, and all premiums for all such fire, flood, and extended coverage
insurance and such public liability and broadcaster's liability insurance have
been paid when due.
6.8 Employees and Labor Relations.
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6.8.1 Seller: (a) is not a party to any collective bargaining
agreement covering or relating to any of Station's employees and has not
recognized, and to Seller's knowledge, is not required to recognize, and has
received no demand for recognition by any
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contract with any of the employees of the Station or to any other employment
contract, labor agreement, or union agreement, written or oral; (b) other than
as disclosed in the Schedules, has not promulgated any policy or entered into
any agreement relating to the payment of pensions, profit sharing, or bonuses to
any of its employees whose employment, if terminated or suspended, for which
Buyer will be liable; and (c) to Seller's knowledge, has not committed any
unfair labor practices.
6.8.2 Seller has complied in all material respects with all applicable
laws, rules and regulations relating to the employment of labor, including those
relating to rates, hours, equal employment opportunity, collective bargaining,
and the withholding and payment of taxes and contributions and has withheld all
amounts required by law or agreement to be withheld from the wages or salaries
of the Station's employees and is not liable to the employees or any government
body for arrears of wages or for any tax or penalty for failure to comply with
the foregoing.
6.8.3 Seller has delivered to Buyer a list of all employees, their
salaries, benefits and other job related matters for the Buyer's review. Buyer
shall have no obligation to employ any of the Seller's employees.
6.9 Taxes and Other Matters.
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6.9.1 Payment of Taxes. All returns and reports concerning franchise
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taxes, unemployment insurance, withholding and payroll taxes, sales taxes,
personal property taxes, license taxes, social security taxes, and all other
reports required to have been filed by the Seller relating to the Assets, the
Station, and/or its operation pursuant to any law or regulation have been duly
filed, and all taxes, interest, assessments, and penalties which are due to any
taxing
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authority, federal, state, or local, with respect to any tax period ending on or
prior to the making of this warranty have been duly paid.
6.9.2 Insolvency Proceedings. No insolvency proceedings of any kind,
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including without limitation bankruptcy, receivership, reorganization,
composition or arrangement with creditors, voluntary, affecting Seller or the
Purchased Assets are pending or threatened. Seller has not made an assignment
for the benefit of creditors or taken any action with a view to, or that would
constitute a valid basis for, the institution of any such insolvency
proceedings.
6.9.3 Intangibles. Seller has full and exclusive right, title to or
===========
interest in and to all of the Intangibles, including, without limitation, the
call letters "WFUN" and all copyrights, patents, program rights, trade names,
trade marks, logos, service marks, proprietary information, and other similar
rights or symbols associated therewith, together with all goodwill associated
therewith and all intellectual properties, as described on Schedule 1.1.5, free
from infringements, interferences, litigation and disputes of any kind or nature
whatsoever.
6.9.4 Environment Matters.
===================
(a) To the best of Seller's knowledge, Seller has complied in
all material respects with all laws, rules and regulations of all federal,
state, and local governments (and all agencies thereof) concerning the
environment, public health and safety, and employee health and safety, and no
charge, complaint, action, suit proceeding, hearing, investigation, claim,
demand, or notice has been filed or commenced against Seller alleging any
failure to comply with any such law, rule or regulation. Seller has not
performed an environmental assessment of the site, but is not aware of any
environmental problems.
-19-
(b) To the best of Seller's knowledge, after due investigation,
Seller has no liability and Seller has not handled or disposed of any substance,
arranged for the disposal of any substance, or owned or operated any property of
facility in any manner that could form the basis for any present or future
charge, complaint, action, suit, proceeding, hearing, investigation, claim or
demand (under the common law or pursuant to any statute) against Seller giving
rise to any liability for damage to any site, location, or body of water
(surface or subsurface) or for illness or personal injury.
6.9.5 No Untrue Statements or Omission. No representation or warranty
================================
made by Seller in this Agreement or any Schedule, exhibit, statement,
certificate, or other document heretofore or hereafter furnished by Seller, or
on its behalf, to Buyer and pursuant to this Agreement or in connection with the
transactions contemplated hereby contains or will contain any knowingly untrue
statement or knowingly omits to state a material fact necessary to make the
statements contained therein not misleading. All representations and warranties
of Seller set forth in this Agreement shall be true, complete and accurate in
all material respects as of the Closing Date as if made on that date.
SECTION 7
WARRANTIES, REPRESENTATIONS AND COVENANTS OF BUYER
==================================================
Buyers covenants, represents, and warrants as follows:
7.1 Organization and Standing. Buyer is now and on the Closing Date will
=========================
be a corporation validly existing and in good standing under the laws of the
State of Delaware and Buyer will as of the Closing be qualified and in good
standing in the States of Illinois and Missouri.
-20-
7.2 Authorization and Binding Obligation. Buyer has all necessary power and
====================================
authority to enter into this Agreement and at Closing will have all necessary
power and authority to execute all of Buyer's Closing Documents that require
Buyer's signature. Appropriate resolutions to that effect shall be provided at
closing. The execution, delivery and performance of this Agreement (as of the
date of execution of this Agreement and on the Closing Date) and the Buyer's
Closing Documents (on the Closing Date) are or will be authorized by all
necessary action of Buyer. This Agreement constitutes a valid and binding
obligations of Buyer enforceable against Buyer in accordance with the terms of
this Agreement. Upon execution, the Buyer's Closing Documents will constitute
valid and binding obligations of Buyer enforceable against Buyer in accordance
with their terms.
7.3 No Contravention. The execution, delivery and performance of this
================
Agreement or any of Buyer's Closing Documents does not violate any provision of
the Articles of Incorporation or By-laws of Buyer, or any contract provision or
other commitment to which Buyer or any of its officers or directors is bound, or
any judgement or order.
7.4 Litigation. Except for administration rule making or other proceedings
==========
of general applicability to the broadcast industry, there is no litigation,
proceeding, judgment, claim, action, investigation or complaint, before the
Commission, other governmental body, or court, of any nature pending or, to the
best of Buyer's knowledge, threatened against or affecting it which would affect
Buyer's authority or ability to carry out this Agreement.
7.5 Information Held in Confidence. From the date hereof until the Closing
==============================
Date, Buyer and other representatives of Buyer, including Buyer's lenders, if
any, will hold in strict confidence, and will not disclose to any third party,
any data and information obtained in
-21-
connection with this transaction with respect to the business of Seller, except
insofar as any of such data and information may be required by law to be
publicly disclosed or submitted to the Commission. If the transactions
contemplated by this Agreement are not consummated, Buyer will return to Seller
all such data and information may be required by law to be publicly disclosed or
submitted to the Commission. If the transactions contemplated by this Agreement
are not consummated, Buyer will return to Seller all Such data and information,
including, but not limited to, all documents, copies of documents and memoranda
or other materials prepared by Buyer which incorporate data or information
obtained from Seller and all other data and information made available to Buyer
in connection with this transaction, except that which may be required to be
submitted to the Commission.
7.6 Access. Seller and its authorized representatives shall have, after the
======
Closing Date, The right to obtain, upon prior request, access to originals or
copies of all logs, books, relevant records, contracts and documents relating to
ownership of the Station by Seller.
7.7 Buyer's Qualifications. There is no fact that would, under present law
======================
(including the Communications Act of 1934, as amended) and the present rules and
regulations of the Commission, disqualify Buyer from being the assignee of the
Station or that would delay Commission approval of the Assignment Application.
Should Buyer become aware of any such fact, it will so inform Seller and will
use its best efforts to remove any such disqualification. Buyer will not take
any action that Buyer knows, or has reason to believe, would result in such
disqualification.
7.7.1 Insolvency Proceedings. No insolvency proceedings of any kind,
======================
including without limitation bankruptcy, receivership, reorganization,
composition, or arrangement with creditors, voluntary or involuntary affecting
Buyer are pending or threatened. Buyer has not made any assignment for the
benefit or creditors or taken any action with a view to or that would constitute
a valid basis for, the institution of any such insolvency proceedings.
-22-
7.8 No Untrue Statements or Omission. No representation or warranty made
================================
by Buyer in this Agreement or any Schedule, exhibit, statement, certificate, or
other document heretofore or hereafter furnished to Seller and Pursuant to this
Agreement or in connection with the transactions contemplated hereby contains or
will contain any knowingly untrue statement or knowingly omits to state a
material fact necessary to make the statement contained therein not misleading.
7.9 Reliance. Neither Buyer nor any person acting as Buyer's
========
representative or on Buyer's behalf has relied on any representation or
statement of Seller or any other person except as expressly set forth in this
Agreement. Buyer acknowledges that it has been given full opportunity to
examine, to its satisfaction, the Contracts listed or described in Schedule
1.1.4.
SECTION 8
SELLER'S CONDUCT OF BUSINESS PRIOR
TO CLOSING AND BUYER'S ACCESS TO INFORMATION
============================================
8.1 Affirmative Covenants of Seller. From the date of this Agreement until
===============================
the Closing Date, Seller shall have complete control and supervision of and sole
responsibility for the Station and its operation, and during such period, Seller
shall or shall exercise its rights to cause the licensee of the Station to:
8.1.1 Make reasonable efforts to endeavor to protect the service area
of the Station from interference from other Stations, existing or proposed, of
which Seller has actual knowledge, to the extent such interference is prohibited
by the Commission's rules and regulations, and promptly give Buyer notice of any
proposed interference.
-23-
8.1.2 Deliver to Buyer, within five (5) business days after filing
thereof with the Commission, copies of any and all reports, application, and/or
responses relating to the Station which are filed with the Commission on or
prior to the Closing Date, including a copy of any Commission inquiries to which
the filing is responsive (in the event of an oral Commission inquiry, Seller
will furnish a written summary thereof).
8.1.3 Give prompt notice to Buyer of any occurrence that comes to
Seller's attention that may constitute a misrepresentation, breach of warranty,
or nonfulfillment of any covenant or condition on the part of the Seller or
Buyer contained in this Agreement.
8.2 Negative Covenants of Seller. Between the date hereof and the Closing
============================
Date, Seller shall not, and shall exercise its rights to cause the licensee of
the station not to with respect to the Assets, the Station, or the operation
thereof, without the consent of Buyer, which consent shall not be unreasonably
withheld:
8.2.1 Cancel, modify, alter, amend, encumber, or any way discharge,
terminate, or impair any material Agreements or leases pertaining to the
Station.
8.2.2 By any act or omission surrender, modify adversely, forfeit, or
fail to renew under regular terms the Commission Authorizations with respect to
the Station or give the Commission grounds to institute any proceedings for the
revocation, suspension or modification of any such Commission Authorization, or
fail to prosecute with due diligence any pending applications with respect to
such Commission Authorizations.
8.2.3 Create or suffer or permit the creation of any mortgage,
conditional sales agreement, security interest, lien, hypothecation, pledge,
encumbrance, restriction, liability charge claim or imperfection of title on any
of the Assets or with respect thereto.
-24-
8.2.4 Take any action that would prevent Seller from consummating the
transactions contemplated in this Agreement.
8.2.5 Other than in the usual and ordinary course of business, sell or
dispose of any of the Assets. Seller shall replace all Assets thus disposed of
in the usual and ordinary course of business with assets having an aggregate
value at least equal to the aggregate value of the Assets sold or otherwise
disposed of.
8.3 Access to Information.
=====================
8.3.1 Access to the Assets. Between the date hereof and the Closing
====================
Date, upon reasonable notice Seller, subject to the consent of Coltre
Broadcasting, Inc., will give to Buyer and its authorized representatives and
agents, including engineers, accountants, lawyers, and other representatives,
reasonable access during reasonable business hours to the Assets. Such access
shall remain subject to the reasonable availability of representatives of Seller
to accompany Buyer's representatives. Seller shall furnish to Buyer such
information and materials concerning the Station's affairs as Buyer may
reasonably request, so far as such access, information and materials pertain to
the operation of the Station.
8.4 Restrictions on Buyer. Nothing contained in this Agreement shall give
=====================
Buyer any right to control the programming or operations of the Station prior to
the the Closing Date.
8.5 Buyer's Covenants. From the date of this Agreement until the Closing
=================
Date, Buyer covenants that it will take no action, or fail to take any action,
that would disqualify it from becoming the licensee of the Station or delay the
grant of the Assignment Application by the Commission. Furthermore, Buyer shall
give prompt notice to Seller of any occurrence of which Buyer has actual
knowledge that may constitute a misrepresentation, breach of warranty or
-25-
nonfulfillment of any covenant or condition on the part of Buyer or Seller
contained in this Agreement.
8.6 Environmental Assessment. Within thirty (30) days after filing the
=========================
assignment of license application, Buyer may retain, at its expense, an
environmental assessment firm to perform a Phase I and Phase II Environmental
Assessment of the Real Property, title to which will be conveyed at closing.
Seller agrees to cause its officers, directors, employees, agents and
representatives and to use its best efforts to cause Coltre Broadcasting, Inc.
to cooperate with Buyer and such firm in performing such Environmental
Assessment. Buyer shall provide a copy of such Environmental Assessment to
Seller but such delivery shall not relieve Seller of any obligation with respect
to any representation, warranty or covenant in this Agreement or waive any
condition to Buyer's obligations under this Agreement. If the Environmental
Assessment shows the presence of any condition that must be cured or removal at
a cost in excess of Fifty Thousand DOLLARS ($50,000.00), then Buyer may
terminate this Agreement, in which event Escrow Xxxxxxx Deposit and all interest
earned thereon plus the Two Hundred Fifty Thousand DOLLARS ($250,000.00) shall
be returned to Buyer and the parties shall be released and discharged from any
further obligation.
8.7 Cooperation with Respect to Financial and Tax Matters. Between the
=====================================================
date hereof and the Closing Date, Seller, its officers, directors and employees
shall cooperate and Seller shall cause its independent accounting firm and use
its best efforts to cause Coltre Broadcasting, Inc. to cooperate with Buyer for
the purpose of preparing Financial Statements reviewed by Buyer's independent
accountants for purposes of including such statements in any reports filed by
Buyer with any governmental authority and disclosing to financial institutions
to obtain financing.
-26-
Buyer shall be permitted to disclose the Financial Statements for the Station
for the years 1995 through the Closing Date in any reports filed by the Buyer
with any governmental authority.
SECTION 9
CONDITIONS FOR CLOSING
======================
9.1 Closing. The Closing of this Agreement shall take place at the offices
=======
of Seller, or such other place as shall be mutually agreed upon by Buyer and
Seller, within ten (10) days after the grant by the Commission of the Assignment
Application has become final (i.e. o longer subject to administrative or
judicial review) or February 15, 1999, whichever comes later, and assuming all
other conditions to Closing have been met. Moreover, a delineation of
additional conditions precedent to Buyer's obligation to close shall be
contained in a subsequent document to be executed by the parties. For purposes
of this Agreement, a "Final Order" means that the grant by the Commission to the
consummation of the transactions contemplated by this Agreement is in full force
and is no longer subject to administrative or judicial review, recall or
reconsideration.
9.2 Conditions Precedent to Obligations of Buyer. The performance of the
============================================
obligations of the Buyer under this Agreement is subject to the satisfaction of
each of the following express conditions precedent, provided that Buyer may, at
its election, waive any of such conditions on the Closing Date, notwithstanding
that such condition is not fulfilled on the Closing Date:
9.2.1 Seller shall have delivered to Buyer the Seller's Closing
Documents as described in Section 10.1 below.
9.2.2 Each of the Seller's representations and warranties contained in
this Agreement or in any Schedule, certificate, or document delivered pursuant
to the provisions
-27-
hereof, or in connection with the transactions contemplated hereby, shall be
true and correct in all material respects at and as of the Closing Date with the
same force and effect as if each such representation or warranty were made at
and as of such time, except with respect to such changes as are contemplated or
permitted by this Agreement.
9.2.3 Seller shall have performed and complied in all material
respects with all covenants, agreements and obligations required by this
Agreement to be performed or complied with by it prior to the Closing Date and
shall be in full compliance therewith on the Closing Date.
9.2.4 Seller shall be the holder of the requisite Commission
Authorizations and have good and marketable title to all other Assets described
in Section 1.1
9.2.5 All outstanding mortgages, liens, security agreements, and other
charges and encumbrances on the Assets, shall have been discharged and
satisfied, or arrangements made to discharge same at Closing.
9.2.6 Seller shall have delivered to Buyer an inventory of the
Tangible Personal property to be conveyed, current as of the Closing Date. There
shall be no material changes between Schedule 1.1.3 and the inventory of
Tangible Personal Property as of the Closing Date other than changes that have
been agreed to and accepted by Buyer, in its reasonable discretion.
9.2.7 Seller shall have delivered to Buyer an opinion dated the
Closing Date from counsel for Seller, in form and substance reasonably
satisfactory to counsel for Buyer.
9.2.8 Seller shall have obtained all consents, approvals, and waivers
of other persons or parties as may be required for the consummation of the
transactions contemplated by
-28-
this Agreement and such consents shall contain terms no less favorable than now
enjoyed by Seller, including consents to assign the Agreements listed in
Schedules 1.1.2 and 1.1.4.
9.2.9 Lien Search. Sellers shall have obtained and delivered to
===========
Buyer, at Seller's expense, at least 10 days prior to the Closing Date, a report
prepared by C.T. Corporation System ( or similar firm reasonably acceptable to
Buyer) showing the results of searches of lien, tax, judgment and litigation
records in the State of Illinois and Madison and St. Louis Counties,
demonstrating that the Real Property and all other Assets are free and clear of
all liens, mortgages and encumbrances except for encumbrances to be discharged
on the closing Date using the proceeds from the Purchase Price and that there
are no judgments or pending litigation. The record searches described in the
report shall have taken place no more than 15 days prior to the Closing Date.
9.2.10 Compensation. Seller shall have satisfied all amounts due
============
Buyer, atemployees for compensation, whether pursuant to the terms of a written
agreement or otherwise, including bonuses and reimbursement of expenses, that
have accrued as of the Closing.
9.3 Conditions Precedent to Obligations of Seller. The performance of the
=============================================
obligations of the Seller under this Agreement is subject to the satisfaction of
each of the following express conditions precedent, provided that Seller may, at
its election, waive any of such conditions at Closing, notwithstanding that such
condition is not fulfilled on the Closing Date:
9.3.1 Buyer shall have delivered to Seller the Buyer's Closing
Documents (as defined in Section 10.2 below).
9.3.2 Each of Buyer's representations and warranties contained in this
Agreement or in any Schedule, certificate or document delivered pursuant to the
provision
-29-
hereof, or in connection with the transactions contemplated hereby, shall be
true and correct in all material respects at and as of Closing Date, as though
each such representation or warranty was made at and as of such time, except in
respect of such changes as are contemplated or permitted by this Agreement.
9.3.3 Buyer shall have performed all of the obligations set forth in
Section 2.2 of this Agreement with respect to the payment of the Purchase Price.
9.3.4 Buyer shall have agreed in a form reasonably acceptable to Seller to
assume all obligations under the Agreements assigned to Buyer arising on or
after the Closing Date.
9.3.5 Seller shall have received an opinion dated the Closing Date
from counsel for Buyer, in form and substance reasonably satisfactory to counsel
for Seller.
9.4 Failure of Conditions Precedent to Obligations of Buyer. In case of
=======================================================
the failure of any of the conditions precedent described in Section 9.2 hereof,
and if Seller, after having received written notice of such failure from Buyer
and having had a reasonable opportunity (i.e. fifteen (15) days) has failed to
cure same, Buyer shall have the right to terminate this Agreement without
liability. In addition, if the failure to such condition precedent constitutes a
material default by Seller, Buyer shall have the right, as its option, to
exercise any or all of its rights or remedies for default provided in Section 17
hereof. Buyer shall not be deemed to have waived any failure by Seller to
fulfill any of the conditions precedent described in Section 9.2 if Buyer does
not have actual knowledge of such failure a the time of Closing.
9.5 Failure of Conditions Precedent to Obligations of Seller. In case of
========================================================
the failure of any of the conditions precedent described in Section 9.3 hereof,
and if buyer, after having
-30-
received written notice of such failure from Seller and having had a reasonable
opportunity (i.e. fifteen (15) days has failed to cure the same, Seller shall
have the right to terminate this Agreement without liability. In addition, if
the failure of such condition precedent results from a material default by
Buyer, Seller shall have the right, at its option, to exercise any or all of its
rights or remedies for default provided in Section 17 hereof. Seller shall not
be deemed to have waived any failure by Buyer to fulfill any of the conditions
precedent described in Section 9.3 if Seller does not have actual knowledge of
such failure at the time of Closing.
SECTION 10
OBLIGATIONS AT CLOSING
======================
10.1 Closing Documents to be Delivered by Seller. At the Closing,
===========================================
Seller shall deliver to Buyer the following ("Seller's Closing Documents"):
10.1.1 An executed Xxxx of Sale in form and substance reasonably
satisfactory to Buyer transferring to Buyer all Tangible Personal Property to be
transferred hereunder.
10.1.2 A special warranty deed in the usual form in the State of
Illinois, conveying good and marketable title to the Real Property and any
improvements thereon , with all required documentary stamps attached and in
proper form for recording.
10.1.3 An executed Assignment and Assumption Agreement in form and
substance reasonably satisfactory to Buyer assigning the Buyer the Agreement to
be assigned hereunder.
10.1.4 An executed Assignment and Transfer in form and substance
reasonably satisfactory to counsel for Buyer assigning and transferring to Buyer
all of the Commission Authorizations and the Intangibles.
10.1.5 A certified copy of the resolutions of Seller authorizing the
execution delivery, and performance of this Agreement by Seller and the
consummation of the transactions provided for herein, attested to by the
Secretary of Seller's General Partner.
10.1.6 An opinion of Seller's counsel, dated as of the Closing Date.
10.1.7 A certificate executed by Seller's general partner stating that
(a) all of the representations and warranties of Seller set forth in this
Agreement are in all material respects true, correct, and accurate as of the
Closing Date, and (b) all covenants set forth in this Agreement to be performed
by Seller on or prior to the Closing Date have been performed in all material
respects.
10.1.8 All Business Records.
10.1.9 Possession and/or ownership of and all right, title and/or
interest in and to the Assets.
10.1.10 An assignment of the Accounts Receivable for collection only
pursuant to Section 11 hereof.
10.1.11 Instructions executed on behalf of Seller directing the Escrow
Agent to deliver the Escrow Deposit to Seller.
10.1.12 Consents referred to in Section 9.2.8.
10.1.13 Title Insurance. Buyer shall have obtained, at Seller's
===============
expense, ALTA extended form title insurance policies insuring Buyer's fee simple
absolute interest in the Real Property in Edwardsville subject only to those
exceptions expressly accepted by Buyer in writing within fifteen (15) days of
its receipt of a preliminary commitment of title insurance therefor. Such Title
Insurance shall not reveal any defects in title or any encroachments upon the
Real
-32-
Property by any buildings, structures, or improvements located on adjoining real
estate or any encroachments by the improvements (including without limitation
any guy wires or guy anchors) constructed on the Real Property onto property not
owned by Seller which would have a material adverse effect on Buyer's use,
occupancy and ownership of such Real Property and shall show that such
buildings, structures and improvements are constructed in conformity with all
setback lines, easements, and other restrictions, or rights of record, or that
have been established by any applicable building or safety code zoning
ordinance.
10.2 Closing Documents to be Delivered by Buyer. At the Closing, Buyer
==========================================
shall deliver to Seller the following ("Buyer's Closing Documents"):
10.2.1 The Purchase Price as provided in Section 2.2.
10.2.2 A certificate executed by Buyer's President stating that; (a)
all of the representations and warranties of Buyer set forth in this Agreement
are in all material respects true, correct, and accurate as of the Closing Date,
and (b) all covenants set forth in this Agreement to be performed by Buyer on or
prior to the Closing Date have been performed in all material respects.
10.2.3 An Assignment and Assumption Agreement executed by Buyer, in
form and substance reasonably satisfactory to Seller.
10.2.4 An Opinion Letter of Buyer's counsel, dated as of the Closing
Date
10.2.5 A certified copy of the resolutions of Buyer authorizing the
execution, delivery and performance of this Agreement by Buyer and the
consummation of the transactions provided for herein, attested to by the
Secretary of Buyer.
10.2.6 Instructions executed on behalf of Buyer directing the Escrow
Agent
-33-
to deliver the Escrow Deposit to Seller.
SECTION 11
ACCOUNTS RECEIVABLE
===================
11.1 Collection Procedures. At Closing, Seller shall assign to Buyer all
=====================
of the Accounts Receivable for purposes of collection only. Buyer shall use such
efforts as are reasonable and in the ordinary course of business to collect the
Accounts Receivable for a period of one hundred eighty (180) days following the
Closing Date (the "Collection Period"). This obligation however, shall not
extend to the institution of litigation, employment of counsel, or any other
extraordinary means of collection. So long as the Accounts Receivable are in
Buyer's possession, neither Seller nor its agents shall make any solicitation of
them for collection purposes nor institute litigation for the collection of any
amounts due thereunder. All payments received by Buyer during the Collection
Period from any person obligated with respect to any of the Accounts Receivable
shall be applied first to Seller's account and only after full satisfaction
thereof to Buyer's account; provided, however, that if during the Collection
Period any account debtor contests in writing the validity of its obligation
with respect to any Account Receivable, then Buyer may return that Account
Receivable to Seller after which Seller shall be solely responsible for the
collection thereof. Except for the payment of all salesperson's, agency, and
representative commissions due with respect to the Accounts Receivable, Buyer
shall not incur or cause to be incurred any collateral or outside fees, costs or
charges in connection with its efforts at collection of the Accounts Receivable
without first having obtained the authorization in writing of Seller. Buyer
shall remit all amounts collected on Seller's behalf no less often than the
fifth (5th) business day after the close of each month during which any amounts
due to Seller are
-34-
collected. Within five (5) business days following the expiration of the
Collection Period, Buyer shall furnish Seller with a list of the Accounts
Receivable collected during the Collection Period accompanied by a payment equal
to the amount of such collections, to the extent not already paid, minus
commissions. Any of the Accounts Receivable that are not collected during the
Collection Period shall be reassigned to Seller after which Buyer shall have no
further obligation to Seller with respect to the Accounts Receivable; provided,
however, that all funds subsequently received by Buyer (without time limitation)
that can be specifically identified, whether by accompanying invoice or
otherwise, as a payment on any Account Receivable shall be promptly paid over or
forwarded to Seller. Buyer shall not have the right to compromise, settle, or
adjust the amounts of any of the Accounts Receivable without Seller's prior
written consent, or to withhold any proceeds of the Accounts Receivable or to
retain any uncollected Accounts Receivable after the expiration of the
Collection Period for any reason whatsoever. To the extent not already paid,
Seller shall be responsible for the payment of all saleperson's, agency, and
representative commissions due with respect to the Accounts Receivable and shall
defend and hold Buyer harmless against any claims for such commission.
SECTION 12
BROKERAGE
=========
Seller and Buyer each represent and warrant to the other that neither Buyer
nor Seller has engaged any broker, finder or agent in connection with the
transactions contemplated by this Agreement, other than Seller's engagement of
Star Media Group, Inc. ("Broker"). Neither Seller nor Buyer has incurred any
unpaid liability or agreed to pay any broker's, finder's or consultant's fee in
connection with the transactions contemplated by this Agreement other than the
fee of
-35-
Broker, the payment of which shall be the sole responsibility of Seller. Seller
agrees to indemnify Buyer and Buyer agrees to indemnify Seller against any
claims asserted against the other party for any such fees or commissions by any
person purporting to act or to have acted for or on behalf of the indemnifying
party. Notwithstanding any other provision of this Agreement, this
representation and warranty shall survive the Closing Date without limitation as
to time.
SECTION 13
INDEMNIFICATIONS
================
13.1 Breach of Seller's Agreements, Representations, and Warranties. Seller
==============================================================
shall reimburse Buyer for, and indemnify and hold harmless Buyer from and
against, any loss, damage, liability, obligation, deficiency, claim, suit, cause
of action, demand, judgment, or expense (including without limitation, payments,
fines, penalties, interest, taxes, assessments, and reasonable attorney's fees
and accounting fees of any kind or nature), contingent or otherwise, whether
incurred or asserted prior to or after the Closing Date, arising out of or
sustained by Buyer by reason of:
(a) any material breach of any warranty, representation, or agreement
of Seller contained under this Agreement or in any certificate or other
instrument furnished to Buyer pursuant to this Agreement or in connection with
any of the transactions contemplated hereby;
(b) the operation of the Station or the ownership of the Assets prior
to Closing (including, but not limited to, any and all claims, liabilities, and
obligations arising or required to be performed prior to the Closing Date under
this Agreement, or any other lease, contract, or agreement);
(c) any transaction entered into by Seller or Coltre Broadcasting,
Inc. or arising in
-36-
connection with the Station or the operation of the business or any of the
Assets prior to the Closing; or
(d) any and all liabilities or obligations of Seller or Coltre
Broadcasting, Inc. not specifically assumed by Buyer pursuant to this Agreement;
or
(e) any and all actions, suits, or proceedings, incident to any of the
foregoing.
13.2 Breach of Buyer's Agreements, Representations and Warranties.
============================================================
Buyer shall reimburse Seller for, and indemnify and hold harmless Seller from
and against, any loss, damage, liability, obligation, deficiency, claim, suit,
cause of action, demand, judgment, or expense (including without being limited
to, payments, fines, penalties, interest, taxes, assessments, reasonable
attorney's fees and accounting fees of any kind or nature), contingent or
otherwise, whether incurred or asserted prior to or after Closing Date, arising
out of or sustained by Seller by reason of:
(a) any material breach of any warranty, representation, or agreement
of Buyer contained under this Agreement or any certificate or other instrument
furnished by Buyer pursuant to this Agreement or in connection with any of the
transactions contemplated hereby;
(b) the operation of the Station or the ownership of the Assets
subsequent to Closing (including, but not limited to, any and all claims,
liabilities and obligations first arising or required to be performed subsequent
to the Closing Date under the Agreement);
(c) any transaction entered into by Buyer or first arising in
connection with the Station or the operation of the business thereof or any of
the Assets subsequent to the Closing;
(d) any and all liabilities or obligations of Seller specifically
assumed by Buyer pursuant to this Agreement; or
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(e) any and all actions, suits, or proceedings incident to any of the
foregoing.
13.3 Notice of Claim. Buyer and Seller agree to give prompt written
===============
notice to each other of any claim for indemnification under Sections 13.1 or
13.2 hereof ("Notice of Claim"), which amount is believed to be required to
discharge the obligations of the indemnifying party resulting therefrom. Within
ten (10) days after having been given the Notice of Claim, the indemnifying
party may deliver to the other party (i) a written notice of objection to the
payment of such claim ("Notice of Objection"), which Notice of Objection shall
set forth the basis for such objection; or (ii) a written notice that the
indemnification party intends to defend against such claim in good faith
("Notice of Intention to Defend"). If such a Notice of Intention to Defend is
delivered, the indemnified party shall have the right to hold in abeyance its
claim for indemnification if and so long as such defense is conducted by the
indemnifying party at the latter's expense in a manner effective to protect the
indemnified party against such claim. If no Notice of Objection or Notice of
Intention to Defend is given within the prescribed ten (10) day period, the
indemnifying party shall promptly pay to the indemnified party the amount set
forth in the Notice of Claim. If the parties are unable to resolve any Notice of
Claim and corresponding Notice of Objection, either party may take whatever
action it deems reasonable, including without limitation, the filing of a claim,
petition, or other pleading in a court of competent jurisdiction.
13.4 Sole Remedy. Except as provided to the contrary in this Agreement,
===========
the right to indemnification pursuant to this Section shall be the sole and
exclusive remedy of each party in connection with any breach or other violation
by the other party of its representations, warranties, or covenants contained in
this Agreement.
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SECTION 14
RISK OF LOSS
============
The risk of any loss or damage to the Assets by fire, theft, breakage,
explosion, earthquake, accident, flood, rain, storm, riot, act-of-God, or public
enemy, or any other casualty or cause, reasonable wear and tear excepted, prior
to the Closing Date, is assumed and shall be borne by the Seller at all times
before the Closing Date. If any such loss or damage occurs, Seller shall give
prompt written notice of the loss or damage to Buyer and shall promptly take all
steps to rebuild, replace, restore or repair any such damaged property at is own
cost and expense. In the event that Seller does not fully replace or restore
any such lost or damaged Asset or Assets by the time the Closing otherwise would
be held, Buyer may, at its option, upon written notice to Seller, either (i)
terminate this Agreement, or (ii) elect to close without restoration, in which
event Seller will deliver all insurance proceeds paid or payable by reason of
the loss or damage to Buyer, notwithstanding Section 1.2.6. If Buyer terminates
this Agreement under this Section, each party shall bear its own expenses, and
the Escrow Agent shall deliver to Buyer the Escrow Deposit and all interest
earned thereon and repayment of the Two Hundred Fifty Thousand DOLLARS
($250,000.00). Buyer's option to terminate this Agreement under this Section 14
shall arise only if such damage to the Station is so substantial that it
prevents the Station from operating in its normal and customary manner for a
period of five (5) consecutive days. Buyer's failure to terminate this Agreement
under Section 14 in the event damage to the Station is substantial does not
affect its right to other remedies under this Section 14.
-39-
SECTION 15
FEES AND EXPENSES
=================
Each party shall pay its own attorneys' fees and expenses which it
initiates, creates, or incurs in connection with the negotiation, preparation
and execution of this Agreement. Real estate transfer and recording fees
assessed or levied in connection with the sale of the Real Property to the Buyer
hereunder shall be paid in accordance with the custom prevailing in Bethalto,
Illinois, on the Closing Date. All other expenses incurred in connection with
this transaction shall be borne by the party incurring same. Buyer will pay the
filing or recording fees incident to any instrument of conveyance or transfer
delivered pursuant to this Agreement.
SECTION 16
BULK SALES LAW
==============
The parties do not believe that any bulk sales or fraudulent conveyance
statute applies to the transactions contemplated by this Agreement. Buyer
therefore waives compliance by Seller with the requirements of any such
statutes, and Seller agrees to indemnify and hold Buyer harmless against any
claim made against Buyer by any creditor of Seller as a result of a failure to
comply with any such statute.
SECTION 17
DEFAULT AND TERMINATION
=======================
17.1 A party shall "default" under this Agreement if it knowingly makes any
material misrepresentation to the other party in connection with this Agreement,
or materially breaches or fails to perform any of its representations,
warranties, or covenants contained in this Agreement. Non-material breaches or
failures shall not be grounds for declaring a party to be in default, postponing
the Closing, or terminating this Agreement.
17.2 If either party believes the other to be in default hereunder, the
former party shall
-40-
provide the other with written notice specifying in reasonable detail the nature
of such default. If the default is not curable or has not been cured within
fifteen (15) days after delivery of that notice (or such additional reasonable
time as the circumstances may warrant provided the party in default undertakes
diligent, good faith efforts to cure the default within such fifteen (15) day
period and continues such efforts thereafter), then the party giving such notice
may terminate this Agreement and/or exercise the remedies available to such
party pursuant to this Agreement, subject to the right of the other party to
contest such action through appropriate proceedings.
17.3 Buyer recognizes that if the transaction contemplated by this Agreement is
not consummated as a result of Buyer's default, Seller would be entitled to
compensation, the extent of which is extremely difficult and impractical to
ascertain. To avoid this problem, the parties agree that if this Agreement is
not consummated due to the default of Buyer, Seller shall be entitled to receive
as liquidated damages the Escrow Xxxxxxx Deposit. The parties agree that such
amount (i.e. Six Hundred Eighty Thousand DOLLARS ($680,000.00)) shall constitute
liquidated damages and shall be in lieu of any other remedies to which Seller
might otherwise be entitled due to Buyer's wrongful failure to consummate the
transaction contemplated by this Agreement. All interest or other proceeds from
the investment of the Escrow Xxxxxxx Deposit shall be paid to Seller. Buyer and
Seller each acknowledge and agree that the liquidated damage amount is
reasonable in light of the anticipated harm which will be caused by Buyer's
breach of this agreement, the difficulty of proof of loss, the inconvenience and
non-feasibility of otherwise obtaining an adequate remedy, and the value of the
transaction to be consummated hereunder.
17.4 Seller agrees that the Assets include unique property that cannot be
readily obtained on the open market and that Buyer will be irreparably injured
if this Agreement is not
-41-
specifically enforced. Therefore, Buyer shall have the right specifically to
enforce Seller's performance under this Agreement, and Seller agrees to waive
the defense in any such suit that Buyer has an adequate remedy at law and to
interpose no opposition, legal or otherwise, as to the propriety of specific
performance as a remedy. In the event Buyer elects to terminate this Agreement
as a result of Seller's default instead of seeking specific performance, Buyer
shall be entitled to the return of the Escrow Xxxxxxx Deposit plus accrued
interest and repayment of the Two Hundred Fifty Thousand DOLLARS ($250,000.00)
and to pursue all available remedies at law or equity.
SECTION 18
SURVIVAL OF WARRANTIES
======================
18.1 All representations, warranties, and covenants made by the parties in this
Agreement shall be deemed made for the purpose of inducing the other to enter
into this Agreement, and shall survive the Closing and remain operative and in
full force and effect, for a period of six (6) months.
18.2 Neither the acceptance nor the delivery of property hereunder shall
constitute a waiver of any covenant, representation, warranty, agreement,
obligation, undertaking, or indemnification of Seller or Buyer contained in this
Agreement, all of which shall, unless otherwise specifically provided, survive
the Closing hereunder in accordance with the terms of this Agreement and shall
be binding upon and inure to the benefit of all of the parties hereto, their
heirs, legal representatives, successors and assigns.
-42-
SECTION 19
NOTICES
=======
19.1 All notices, requests, demands, waivers, consents and other communications
required or permitted hereunder shall be in writing and be deemed to have been
duly given when delivered in person (against receipt) to the party to be
notified at the address set out below or sent by registered or certified mail,
or by express mail or courier, postage prepaid, return receipt requested,
addressed to the party to be notified, as follows:
If to Seller:
Arch Broadcasting, L.P.
c/o Xxxxx X. Xxxxxxx, Secretary/Treasurer
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
With a copy (which shall not constitute notice) to:
Xxx X. Xxxxxxxx, Esq.
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
If to Buyer:
Xxxxxx X. Xxxxxxx, President
Radio One, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
With a copy (which shall not constitute notice) to:
Xxxxx X. Xxxxxx, Esq.
General Counsel
Radio One, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Either party may change its address for notices by written notice to the
other given pursuant to this Section. Any notice purportedly given by a means
other than as provided in this
-43-
Section shall be invalid and shall have no force or effect.
SECTION 20
MISCELLANEOUS
=============
20.1 Headings. The headings of the Sections of this Agreement are for
========
convenience of reference only, and do not form a part thereof, and do not in any
way modify, interpret or construe the meaning of the sections themselves or the
intentions of the parties.
20.2 Assignability. Subject to the consent of Seller, Buyer may assign its
=============
rights under this Agreement to the third party. Such consent shall not be
unreasonably withheld.
20.3 Entire Agreement. This Agreement and any other agreements entered into
================
contemporaneously herewith set forth the entire agreement of the parties and are
intended to supersede all prior negotiations, understandings, and agreements and
cannot be altered, amended, changed or modified in any respect or particular
unless each such alteration, amendment, change or modification shall have been
agreed to by each of the parties hereto and reduced to writing in its entirety
and signed and delivered by each party. No provision, condition or covenant of
this Agreement shall be waived by either party hereto except by a written
instrument delivered to the other party and signed by the party consenting to
and to be charged with such waiver.
20.4 Binding Effect and Assignment. This Agreement shall be binding upon
==============================
and inure to the benefit of and be enforceable by the parties hereto, and their
respective successors and assigns. Neither party hereto may assign this
Agreement or its rights and obligations hereunder without the written consent of
the other; provided, however, Buyer may assign this Agreement without Seller's
consent to any entity which is a subsidiary or parent of Buyer or to another
legal entity owned by Buyer or its principals, provided Buyer provides written
notice to Seller. Buyer
-44-
may make a collateral assignment of its rights under this Agreement to any
institutional lender who provides funds to Buyer for the acquisitions or
operation of the Stations. Seller agrees to execute acknowledgements of such
assignment(s) and collateral assignments in such forms as Buyer or Buyer's
institutional lender(s) may from time to time request, provided that such
acknowledgments create no liability for Seller. In the event of such a proposed
assignment by Buyer, the provisions of this Agreement shall inure to the benefit
of and be binding upon Buyer's assigns. Nothing in this Agreement, express or
implied, is intended to or shall confer on any person other than the parties
hereto and their respective successors and assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
20.5 Additional Documents. The parties hereto agree to execute, acknowledge
====================
and deliver, at or after the Closing Date, such other and further instruments
and documents as may be reasonably necessary to implement, consummate and
effectuate the terms of this Agreement, the effective vesting in Buyer of title
to the Assets, and/or the successful processing by the Commission of the
application to be filed with it, as provided in Section 4.
20.6 Counterparts. This Agreement may be executed in one or more
============
counterparts, all of which together shall comprise one and the same instrument.
20.7 Legal Actions. If either Seller or Buyer initiates any legal action or
=============
lawsuit against the other involving this Agreement, the prevailing party in such
action or suit shall be entitled to receive reimbursement from the other party
for all reasonable attorney's fees and other costs and expenses incurred by the
prevailing party in respect of that litigation, including any appeal, and such
reimbursement may be included in the judgement or final order issued in such
proceeding. Any award of damages following judicial remedy or arbitration as a
results of the breach of this
-45-
Agreement or any of its provisions shall include an award of prejudgment
interest from the date of the breach at the maximum rate of interest allowed by
law.
20.8 Governing Law. The parties agree that this agreement and the
=============
transaction herein contemplated shall be interpreted, construed, and enforced
under and according to the laws of the State of Illinois.
20.9 Counsel. Each party has been represented by its own counsel in
=======
connection with the negotiation and preparation of this Agreement and,
consequently, each party hereby waives the application of any rule of law to the
effect that any provision of this Agreement shall be interpreted or construed
against the party whose counsel drafted that provision.
20.10 Time is of the Essence. Time shall be of the essence in this
======================
Agreement and the performance of each and every provision hereof.
20.11 Severability. If any term or provision of this Agreement or its
============
application, to any extent, is declared to be invalid or unenforceable, the
remaining terms and provisions shall not be affected and shall remain in full
force and effect and to such extent are severable.
20.12 Publicity. Seller and Buyer agree that all public announcements
=========
relating to this agreement or the transactions contemplated hereby, including
announcements to employees, will be made only as may be mutually agreed upon by
the parties, which consent shall not be unreasonably withheld, except that
Seller acknowledges Buyer will be issuing a press release regarding this
transaction.
20.13 (a) Seller agrees that it will not amend, alter, modify or change the
Asset Purchase Agreement between Seller and Coltre Broadcasting, Inc. ("Coltre
APA"), dated July 6, 1998, as amended on September 8, 1998, without the prior
written consent of Buyer.
-46-
(b) Prior to the consummation of the transaction contemplated by the
Coltre APA, Seller agrees to promptly take any and all actions which it is
required to take under the Coltre APA and to take any and all actions necessary
to enforce its rights under the Coltre APA. After consummation of the
transactions contemplated by the Coltre APA, the Seller agrees, solely at the
discretion of the Buyer, to take any and all actions to enforce its rights under
the Coltre APA, including without limitation, all rights of indemnification.
The Seller further agrees and acknowledges that on and after the consummation of
the transaction contemplated by the Coltre APA without prior written consent of
Buyer, and Seller will, to the extent possible, permit Buyer to take any and all
actions under the Coltre APA that Seller would otherwise be permitted to take.
Should Buyer request that such actions be taken after consummation of the
transactions contemplated by this Agreement, the Buyer shall be permitted at its
expense to participate in such actions.
20.14 Post Closing Cooperation. From the date of Closing and for a period
========================
of three (3) years thereafter, Seller shall provide Buyer with such cooperation
and information as Buyer shall reasonably request in Buyer's: (i) analysis and
review of the financial statements for the Station or (ii) preparation of
documentation to fulfill any reporting requirements of Buyer including reports
that may be filed with the Securities and Exchange Commission. Such cooperation
and information shall include providing copies of relevant tax returns or
portions thereof, together with the accompanying schedules and related work
papers and documents relating to rulings or other determinations by tax
authorities. Arch shall make its independent accounting firm available, the cost
of said firm to be paid by the Buyer, and the information relied upon by that
firm, including its opinions and financial statements for the Station, to
provide explanations of
-47-
disclosure to any governmental authority.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed and executed by their proper officers thereunto duly authorized as of the
day and year first above written.
SELLER:
ARCH BROADCASTING, L.P.
BY: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
Secretary/Treasurer
Arch Broadcasting, Inc., General Partner
BUYER:
RADIO ONE, INC.
BY: /s/ Xxxxxx X. Xxxxxxx
----------------------
Xxxxxx X. Xxxxxxx
President
-48-
AMENDMENT TO
ASSET PURCHASE AGREEMENT
Arch Broadcasting, L.P. ("Arch" or "Seller") and Radio One, Inc. ("Radio
One" or "Buyer") have executed an Asset Purchase Agreement ("Agreement") dated
November 23, 1998, whereby Buyer shall acquire from Seller, subject to FCC
approval, the license and other assets used in the operation of Station
WFUN(FM), Bethalto, Illinois. The parties, in order to clarify the November 23,
1998 Agreement and achieve certainty as to their respective obligations to one
another, hereby amend the Agreement as follows:
1. Escrow Account. The funds to be placed in escrow pursuant to Section
--------------
2(c) of the Agreement shall be used for the purpose of constructing modified
facilities for Station KWWR, Mexico, Missouri, at a site more particularly
described in Section 2(b) below, satisfying the obligations under the agreement
with KXEO Radio, Inc., as described in Section 2(a) below, and constructing
modified facilities for Station WFUN, Bethalto, Illinois, at a site more
particularly described in Section 2(e) below. The funds shall be held in an
escrow account pursuant to an Escrow Agreement and disbursed in the manner
provided in a Construction and Management Agreement as more particularly
described in Section 2(h) below.
2. Additional Conditions Precedent to Obligations of Buyer. The performance
-------------------------------------------------------
of the obligations of Buyer under the Agreement is subject to the satisfaction
of each of the following express conditions precedent, provided that Buyer may,
at its election, waive any of such conditions on the Closing Date,
notwithstanding that such condition is not fulfilled on the Closing Date:
(a) Seller shall have entered into a binding agreement with KXEO Radio,
Inc. ("KXEO Agreement"), wherein KXEO Radio, Inc., agrees to move the
transmitter site for Station KWWR to the location more particularly described in
Section 2(b) below, KXEO Radio, Inc., agrees to permit Seller to manage the
construction of the modified facilities and such agreement with KXEO Radio,
Inc., is assigned to Buyer.
(b) The Federal Communications Commission must have granted the
modification application to relocate Station KWWR to a site located at Latitude
39[degrees] 15' 49", Longitude 92[degrees] 08' 06" without any conditions
adverse to Buyer and such grant must have become final.
(c) The land on which Station KWWR proposes to construct its modified
facilities as more particularly described in Section 2(b) above must be
available for immediate construction of the modified facilities either through
purchase or lease agreement.
(d) All regulatory approvals, including FAA and zoning, to permit
construction of the modified facilities more particularly described in Section
2(b) must be obtained without any conditions adverse to Buyer and such approvals
must no longer be subject to reconsideration or appeal. Or, if local zoning
approval is not required, then an opinion letter from local counsel to that
effect must be delivered at closing.
(e) The Federal Communications Commission must have granted the
modification application to relocate Station WFUN to a site located at Latitude
38[degrees] 45' 44", Longitude 90[degrees] 11' 23" with an antenna height above
average terrain of 158 meters and to change from a Class A to a Class C3 without
any adverse conditions to Buyer and such grant must have become final.
(f) The land on which Station WFUN proposes to construct its modified
facilities as more particularly described in Section 2(e) above must be
available for immediate constructions of the modified facilities either through
purchase or long term lease agreement.
(g) All regulatory approvals, including FAA and zoning, to permit
construction of the modified facilities more particularly described in Section
2(e) must be obtained without any conditions adverse to Buyer and such approvals
must no longer be subject to reconsideration or appeal.
(h) Seller and Buyer shall have entered into a Construction and Management
Agreement in substantially the form attached hereto.
3. Closing on Acquisition from Coltre Broadcasting, Inc. Seller
----------------------------------------------------
acknowledges that Buyer has an interest in assurances that Seller's Acquisition
of Station WFUN(FM) from Coltre Broadcasting, Inc., is properly documented.
Seller agrees to permit Buyer to review the documentation prepared for Seller's
closing on the acquisition of Station WFUN from Coltre Broadcasting, Inc., in
advance of execution of those documents.
4. Termination of Agreement. Buyer may terminate the Agreement by five (5)
------------------------
business days prior to written notice to Seller, and without liability to
Seller, at any time after one hundred eighty (180) days after the date of the
Agreement if any of the conditions precedent described in Section 2 have not
been satisfied. Upon termination, Buyer shall be entitled to a return of the
Escrow Xxxxxxx Deposit plus accrued interest and repayment of the Two Hundred
Fifty Thousand Dollars ($250,000).
5. Time is of the Essence. Time is of the essence in this Agreement and the
----------------------
performance of each and every provision hereof.
6. Counterparts. The instant document may be signed in counterparts, each
------------
one shall be deemed a duplicate original.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to Asset
Purchase Agreement to be signed and executed by their proper officers thereunto
duly authorized as of this 4th day of December, 1998.
SELLER:
ARCH BROADCASTING, L.P.
BY: /s/ Xxxxx X. Xxxxxxx
---------------------
Xxxxx X. Xxxxxxx
Secretary/Treasurer of
Arch Broadcasting, Inc., General Partner
BUYER:
RADIO ONE, INC.
BY: /s/ Xxxxxx X. Xxxxxxx
----------------------
Xxxxxx X. Xxxxxxx
President
