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EXHIBIT 10.131
RADIO STATION ASSET PURCHASE AND SALE AGREEMENT
THIS RADIO STATION ASSET PURCHASE AND SALE AGREEMENT (this "Agreement")
is made as of the 27th day of August, 1996, by and between INTERMART
BROADCASTING FIRST COAST, INC., a Florida corporation (the "Seller"), and XXXXXX
BROADCASTING OF JACKSONVILLE, LIMITED PARTNERSHIP, a Florida limited partnership
(the "Buyer").
W I T N E S S E T H:
WHEREAS, Seller is the sole holder of a permit (the "Permit") issued by
the Federal Communications Commission (the "Commission" or "FCC") authorizing
the operation of a new commercial FM station, WPVJ-FM on Channel 293 (106.5
MHZ), at Ponte Vedra Beach, Florida (the "Station");
WHEREAS, Seller is operating the Station pursuant to program test
authority;
WHEREAS, Seller desires to sell and Buyer desires to purchase all the
assets, except cash on hand and accounts receivable (collectively, the
"Assets"), used or useful in the operation of the Station and to obtain
assignments of the Permit and of all leases, contracts and other agreements used
in connection with or related to the construction and operation of the Station;
and
WHEREAS, the assignment of the Permit is subject to the prior approval
of the Commission;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and for other good and valuable consideration, receipt of which
is hereby acknowledged, Seller and Buyer, intending to be legally bound, do
hereby mutually agree as follows:
1. Defined Terms. Unless otherwise stated in this Agreement, the
following terms shall have the following meanings:
"ASSIGNMENT APPLICATION" refers to the application that Seller and
Buyer will join in and file with the Commission requesting its
unconditional written consent to the assignment of the Permit by Seller
to Buyer.
"BUSINESS DAY" refers to any day on which the FCC is open for business
in the ordinary course.
"CLOSING DATE" means 10:00 a.m. on a date to be set by Buyer on at
least five (5) days' written notice to Seller, that is the later of (a)
the fifth (5th) business day following the date (the "Finality Date")
on which the FCC's grant of the Assignment Application becomes a Final
Order (as hereafter defined), or (b) at Seller's election, the first
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business day in calendar year 1997.
"CLOSING PLACE" means the office of Washington counsel for Buyer or
such other place as the parties may mutually agree to in writing.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"ESCROW AGENT" means First Union National Bank of Florida, N.A.
"ESCROW AGREEMENT" means the escrow agreement attached hereto as
Appendix A, executed by Seller, Buyer and Escrow Agent.
"FINAL ORDER" means action by the Commission or its delegated authority
granting its consent and approval to the Assignment Application, which
action is not reversed, stayed, enjoined, or set aside, and with
respect to which no timely request for stay, reconsideration, review,
rehearing or a notice of appeal is pending, and as to which the time
for filing any such request, petition or notice of appeal, or for
review by the FCC on its own motion, has expired.
"IMMEDIATELY AVAILABLE FUNDS" means cash, cashier's check or electronic
funds transfer when receipt thereof is confirmed by Seller's bank.
"PERMIT" refers to the permit to operate the Station pursuant to
program test authority granted by the FCC.
"STATION" means Radio Station WPVJ-FM, Ponte Vedra Beach, Florida, as
an operating business.
"SCHEDULE VOLUME" refers, collectively, to the schedules of the
following items of the Seller, all of which are required to be
furnished to Buyer by Seller hereunder, which have been bound in a
separate volume and initialed by the parties:
(a) all tangible real and personal property (SCHEDULE 2(B));
(b) all contracts, leases and agreements that Buyer agrees to
assume, with copies thereof (SCHEDULE 2(C));
(c) copyrights, trademarks, trade names and service marks
(SCHEDULE 2(D));
(e) Seller's litigation (SCHEDULE 4(H));
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(f) insurance (SCHEDULE 4(I));
(g) discrepancies (SCHEDULES 4(L)(IV) AND (VI)); and
(h) prorations (SCHEDULE 12);
"TIME BROKERAGE AGREEMENT" means the agreement attached hereto as
Appendix B concurrently executed herewith providing for the sale of
substantially all of the broadcast time of Station to Buyer, subject to
the rules and policies of the FCC.
2. Assets to be Conveyed. Subject to the terms and conditions
hereinafter set forth, Seller shall sell, transfer, assign and deliver to Buyer,
and Buyer shall purchase, assume and accept from Seller, on the Closing Date (as
defined herein) the following (all of which assets described in paragraphs (a)
through (f) shall collectively constitute the "Assets"):
(a) The Permit (FCC File No. XXXX-000000XX) issued to and held by
Seller from the Commission permitting the operation of the
Station, subject to Commission approval as hereinafter
provided;
(b) All of the fixed and tangible real and personal assets (except
cash on hand and accounts receivable, the collection of which
shall be the sole responsibility of Seller and Buyer shall
have no obligation or responsibility therefore) used or useful
in the operation of the Station as listed on SCHEDULE 2(B)
attached hereto, and any additions thereto or substitutions
therefor, consisting of the property used or useful in the
operation of the Station in the normal course of business,
including but not limited to real estate, broadcast equipment,
furniture, office equipment, supplies and relevant business
records. Said assets shall be conveyed free and clear of any
and all liens, claims, encumbrances and security instruments;
(c) The leases, contracts and agreements, listed in SCHEDULE 2(C)
attached hereto, which shall be in full force and effect on
the Closing Date, as to which Buyer assumes all obligations of
Seller following the Closing Date;
(d) All right, title and interest of the Seller in and to the use
of the call letters "WPVJ-FM" and any and all copyrights,
trademarks and trade names, promotional materials, logos, TV
commercials and related materials used or useful in the
operation of the Station listed on SCHEDULE 2(D) attached
hereto;
(e) To the extent transferable to Buyer, all other permits,
licenses or authorizations, if any, issued by any regulatory
agency which are used or useful in the operation of the
Station; and
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(f) All items in Seller's possession in the Station's FCC Public
Inspection File and all business, engineering and government
records relating to the operation of the Station, excluding
tax returns and other records pertaining to Seller's corporate
affairs.
3. Purchase Price. The purchase price (the "Purchase Price") for the
Station and all the Assets described in Section 2 of this Agreement shall be
paid by Buyer to Seller as follows: At the Closing, Buyer shall pay to or for
the benefit of, Seller FOUR MILLION ($4,000,000.00) DOLLARS. The Purchase Price
shall be paid in the following manner:
(a) Concurrently with the execution and delivery of this
Agreement, Buyer has deposited the sum of FOUR HUNDRED
THOUSAND ($400,000.00) DOLLARS with Escrow Agent (the "Escrow
Fund") pursuant to the Escrow Agreement.
(b) At the Closing, Buyer will pay to Seller in Immediately
Available Funds the Purchase Price.
4. Seller's Warranties And Representations. Seller hereby makes the
following warranties and representations, each of which shall be deemed a
separate covenant to Buyer:
(a) Organization. Seller is now and at Closing will be a corporation
duly organized and in good standing in the State of Florida, and is duly
qualified to construct and operate the Station under the laws of Florida and
under the Commission's rules and regulations. The execution and performance of
this Agreement and the compliance with its provisions by Seller on the Closing
Date will not conflict with or result in any breach of any of the terms,
conditions or provisions of any agreement, indenture, mortgage, agreement or
other instrument to which Seller is a party or by which it is bound. Now and at
Closing, Seller will have full and complete corporate authority to enter into
this Agreement and execute all instruments incident hereto.
(b) Clear Title. Seller will be solely responsible for and shall pay
all debts, taxes or impositions imposed or arising by reason of Seller's
ownership and operation of the Station and Assets prior to the Closing Date, and
Seller shall indemnify and hold Buyer harmless from any and all such charges.
Seller and Buyer shall equally divide and pay each party's share of intangible
and transfer taxes. Any debts which are liens against the Assets shall be
discharged on or before the Closing Date.
(c) Taxes. At Closing, Seller shall have filed all tax returns then
due, or properly applied for extension, and shall have paid or made provisions
for the payment of all regular and special taxes, assessments, excises, fees and
levies then due which are required of Seller arising by reason of Seller's
ownership or operation of the Station and Assets prior to the Closing Date.
(d) Leases, Contracts, etc. The leases, contracts and agreements listed
in SCHEDULE 2(C) and to be assigned to Buyer hereunder are freely assignable,
or, if consent of the contracting
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party to the assignment is required, Seller will obtain said consent prior to
Closing. With respect to each such lease, contract and agreement:
(i) it is valid, binding and in full force and effect;
(ii) Seller has not repudiated or waived any material
provision thereof;
(iii) all amounts due and payable by Seller through the
Closing Date have been or will be paid and there will
be no amounts due after the Closing Date which relate
to the period prior to the Closing; and
(iv) no other party to any such lease, contract or
agreement is, to Seller's knowledge, in default in
any respect thereunder.
(e) Power to Convey. On the Closing Date, Seller will be the owner and
will be empowered to transfer to Buyer all the fixed and tangible assets used or
useful in the operation of Station as listed in SCHEDULE 2(B) attached hereto
and any replacements thereof and additions thereto, free and clear of all liens
and encumbrances. All broadcast equipment shall be to the best of Seller's
knowledge in good condition and operable in compliance with all Commission
regulations;
(f) Broker's Fees. Seller has not incurred any liability for brokerage
fees, finders' fees, agents' commissions or other similar forms of compensation
in connection with this Agreement or any transaction contemplated hereby.
(g) Truthful Warranties. The representations and warranties of Seller
herein, or in any exhibit, schedule or certificate given pursuant hereto, do not
contain an untrue statement of a material fact or do not omit a material fact
which would make any statement contained herein or therein misleading.
(h) Litigation. Except as disclosed in SCHEDULE 4(H), there is no
litigation, proceeding, or governmental investigation pending or, to the
knowledge of Seller, threatened in any court, arbitration board, administrative
agency or tribunal against or relating to Seller or to its principals that would
prevent or materially impede the consummation of this Agreement by Seller, nor
does Seller, after due inquiry, know of, or have any reasonable ground to know
of, any basis for such litigation, proceeding or investigation, and the
execution and performance of this Agreement by Seller will not result in the
default by Seller in respect of any judgment, order, writ, injunction, decree,
rule or regulation of any applicable court or administrative agency which could
have a material adverse effect on the operation of the Station or its assets.
(i) Insurance. Seller has in full force and effect insurance on the
assets and business of the Station pursuant to insurance policies which are
shown in SCHEDULE 4(I) hereto, and Seller will continue to maintain such
insurance in full force and effect up to and including the Closing
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Date, or shall have obtained prior to Closing other insurance policies with
coverage and limits comparable to the policies shown on SCHEDULE 4(I) after
prior notice to, and upon the written consent of, Buyer, which consent will not
be unreasonably withheld.
(j) Barter: Other Post-Closing Obligations. There are no trade and
barter agreements currently in effect for the Station. In the event that any
such agreements, or any other agreements that obligate the Station to provide
services after the Closing, exist at Closing, then, at the Closing, Seller shall
reimburse Buyer for any bartered time or other obligation where the bartered
goods or services, or payments for such other obligation, have been received by
Seller (or constitute an account receivable retained by Seller) prior to the
Closing Date or, for any obligations that continue after the Closing as a result
of such agreements and which the value of the bartered goods or services to be
received after the Closing are reasonably determined to be less than the value
of the bartered time, for such difference in value.
(k) Compliance with FCC Rules and Regulations. The operation of the
Station conforms, and has conformed at all times since commencement of program
tests, in all material respects with the Commission's rules and regulations.
(l) Operation of Station. Seller agrees that, from the date of this
Agreement to the Closing Date, it shall:
(i) continue to operate the Station in accordance with
FCC rules and regulations, except for such violations
occurring after the date hereof that have been cured
prior to the Closing Date or which do not materially
and adversely affect the continued operations of the
Station;
(ii) not sell, lease or dispose of any of the Assets
except (A) for assets consumed or disposed of in the
ordinary course of business or (B) in connection with
replacement of such assets with assets of similar
value and utility.
(iii) not, without the knowledge and prior written consent
of Buyer, (A) renew, amend, change or modify any
lease, contract or agreement listed in SCHEDULE 2(C)
or (B) enter into any new contract or renew or modify
any existing lease or contract respecting the Station
and (C) contracts with BMI and ASCAP and, further
provided, that upon the execution and delivery of any
such extension or execution and delivery of such
contract, Seller shall promptly provide to Buyer
copies of such extension or contract).
(iv) Except as provided in SCHEDULE 4(L)(IV) attached
hereto, operate the Station in conformity with the
Permit and any special temporary authority or program
test authority issued thereunder, the Communications
Act of 1934, as amended, the rules and regulations of
the FCC, and the rules and
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regulations of any other governmental body with
jurisdiction over the Station.
(v) not change the call letters of the Station.
(vi) Except as provided in SCHEDULE 4(L)(VI), attached
hereto, refrain from changing the Station's frequency
or making any material changes in the Station's
studio or other structures, except to the extent
required by applicable law.
(vii) maintain all the Station's assets in good operating
condition, maintenance and repair substantially in
accordance with past practice, except to the extent
of normal wear and tear with inventories of spare
parts and expendable supplies maintained at levels
consistent with past practices.
(viii) file in timely fashion all material reports, forms
and statements required to be filed by Seller with
the FCC with respect to the Station, which reports,
forms and statements will be complete and accurate in
all material respects.
(ix) consent to and cooperate with all engineering
modifications of the Permit, if any, requested by
Buyer so long as they are in the public interest and
consistent with the FCC's rules and regulations and
so long as all expenses associated therewith are
borne solely by Buyer.
5. Buyer's Warranties and Representations. Buyer hereby makes the
following warranties and representations, each of which shall be deemed a
separate covenant to Seller:
(a) Organization. Buyer is now and at Closing will be a limited
partnership duly organized, validly existing and in good standing in the State
of Florida. At Closing, Buyer will be qualified and licensed to do business
under the laws of the State of Florida, and to operate the Station under the
laws of Florida and under the rules and regulations of the Commission.
(b) Post-Closing Charges. Buyer will be solely responsible for and
shall either pay or make provision which shall be satisfactory to Seller for all
debts, taxes or impositions imposed or arising by reason of Buyer's operation of
the Station after the Closing Date, and Buyer shall indemnify and hold harmless
Seller from any and all such charges.
(c) Power to Purchase. The execution and performance of this Agreement
and the compliance with its provisions by Buyer on the Closing Date will not
conflict with, or result in any breach of Buyer's Partnership Agreement, or of
any of the terms, conditions or provisions of any agreement, indenture,
mortgage, agreement or other instrument to which Buyer is a party or by which it
is bound.
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(d) Post-Closing Obligations. On the Closing Date, Buyer will assume
and perform promptly when due the leases, contracts, and all other obligations
to be transferred to and assumed by Buyer hereunder.
(e) Licensee Qualifications. Buyer represents that it is, and at the
Closing it shall be, legally and financially qualified under rules, regulations
and policies established by the Commission to become a licensee of Station.
(f) Broker's Fees. Buyer has not incurred any liability for brokerage
fees, finders' fees, agents' commissions or other similar forms of compensation
in connection with this Agreement or any transaction contemplated hereby.
(g) Truthful Warranties. The representations and warranties of Buyer
herein, or in any exhibit, schedule, certificate, or other document given
pursuant hereto, do not contain an untrue statement of a material fact or do not
omit a material fact which would make any statement contained herein or therein
misleading.
(h) Litigation. Except as disclosed in SCHEDULE 5(H), there is no
litigation, proceeding or governmental investigation pending or, to the
knowledge of Buyer, threatened in any court, arbitration board, administrative
agency or tribunal against or relating to Buyer or to its principals that would
prevent or materially impede the consummation of this Agreement by Buyer, nor
does Buyer know of, or have any reasonable ground to know of, in view of its
present situation or action it now contemplates taking, any basis for such
litigation, proceeding or investigation, and the execution and performance of
this Agreement by Buyer will not result in the default by Buyer in respect of
any judgment, order, writ, injunction, decree, rule or regulation of any
applicable court or administrative agency which could have a material adverse
effect on the operation of the Station or its assets.
(i) Inspection of Facilities. Buyer represents that it has inspected
the Assets, has investigated the Station's facilities, and has found the
Station's signal to be acceptable.
6. Conditions to Buyer's Obligations. The obligation of Buyer to
consummate this Agreement is subject to the satisfaction on or prior to the
Closing Date of each of the following conditions:
(a) Seller shall deliver or cause to be delivered to Buyer the
instruments of conveyance and transfer described in this
Agreement;
(b) The Commission's order granting the Assignment Application
shall have become a Final Order; except Buyer may waive this
requirement in writing and consummate the transactions
contemplated hereby prior to the time the Commission's Order
shall have become a Final Order, but not earlier than five (5)
days following the date on which the Commission issues a
Public Notice
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announcing the grant of the Assignment Application referred to
in Section 11 hereof ("Public Notice Date");
(c) Seller shall deliver to Buyer on the Closing Date a copy of
each instrument of authorization for the operation of the
Station, which instruments shall be in full force and effect
and shall contain no materially adverse condition or
restriction, and under which instruments, the Commission's
rules shall permit the operation of the Station and
assignments of each such instrument;
(d) The representations and warranties made by Seller shall be
true and correct in all material respects at and as of the
Closing Date as though such representations and warranties had
been made at and as of the Closing Date;
(e) Seller shall have performed and complied, in all material
respects, with all agreements and conditions required by this
Agreement to be executed, performed or complied with by Seller
prior to or at the Closing Date;
(f) There shall not be any litigation or proceeding pending to
restrain Buyer's or Seller's performance of or invalidate the
transaction contemplated by this Agreement which has not been
resolved favorably. No proceedings shall have been instituted
or be threatened against Seller for the protection of
creditors or otherwise for the relief of Seller as a debtor
that have not been resolved favorably to this Agreement.
(g) Seller shall have paid all federal, state and local sales or
transfer taxes directly arising from the conveyance of the
assets to Buyer.
7. Conditions to Seller's Obligations. The obligation of Seller to
consummate this Agreement is subject to the satisfaction on or prior to the
Closing Date of each of the following conditions:
(a) The representations and warranties made by Buyer shall be true
and correct in all material respects at and as of the Closing
Date as though such representations and warranties had been
made at and as of the Closing Date;
(b) Buyer shall have performed and complied, in all material
respects, with all agreements and conditions required by this
Agreement to be executed, performed or complied with by Buyer
prior to or at the Closing Date;
(c) There shall not be any litigation or proceeding to restrain
Seller's or Buyer's performance of or invalidate the
transactions contemplated by this Agreement that has not been
resolved favorably. No proceedings shall have been instituted
or be
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threatened against Buyer for the protection of creditors or
otherwise for the relief of Buyer as a debtor that have not
been resolved favorably to this Agreement;
(d) The FCC shall have released an order granting the Assignment
Application; and
(e) Buyer shall have delivered the Purchase Price to, or on behalf
of, Seller in accordance with the provisions of Section 3 of
this Agreement.
8. Due Diligence. Seller will provide Buyer, its representatives,
agents, experts, counsel and accountants, immediate and reasonable access to the
equipment and property of the Station wherever located, as well as to Station
management. Such information shall also include the information used by Seller
in connection with the operation of the Station, including copies of all
licenses, permits, authorizations and requirements.
9. Confidentiality. Except as necessary for the consummation of the
transaction contemplated by this Agreement, neither Buyer nor Seller, nor their
respective officers, agents or other representatives, will make any public
disclosures, except as may be required by law, including federal or state
securities laws, or court order regarding the transaction contemplated hereby,
without the other party's advance written consent. All information of a
confidential nature obtained by Buyer related to the Station and/or Seller shall
be kept strictly confidential by Buyer, its officers, agents or other
representatives, and shall be treated in the same manner accorded to its own
information of like importance. Notwithstanding anything to the contrary, Buyer
may provide all information to officers of the Buyer, or Buyer's attorneys,
bankers, engineers, appraisers and accountants. Buyer will require all such
persons to hold this information in the same confidence as agreed upon above and
acknowledges that Buyer will be held responsible should they fail to do so. If
this Agreement is terminated without the Closing having occurred, then Buyer
shall promptly return to Seller all documents and materials delivered by Seller
to Buyer pursuant to the Agreement.
10. Indemnification.
(a) Subject to paragraph (e) below, Buyer hereby agrees to indemnify
and save harmless Seller from and against any and all losses, damages, costs,
expenses, claims (including reasonable attorneys' fees) and liabilities of
Seller arising after Closing from or relating to liabilities (i) of the Station
to the extent assumed by Buyer under this Agreement, (ii) under facts or
circumstances occurring after Closing with respect to the ownership or operation
of the Station, or (iii) any material breach of Buyer's representations and
warranties set forth in Section 5 of this Agreement.
(b) Subject to paragraph (e) below, Seller hereby agrees to indemnify
and save harmless Buyer from and against any and all losses, damages, costs,
expenses, claims (including reasonable attorneys' fees) and liabilities of Buyer
arising from or relating to liabilities (i) of the Station not assumed by Buyer
under this Agreement, or if assumed by Buyer arising on or before
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Xxxxxxx, (xx) under facts or circumstances occurring on or before Closing, or
(iii) any material breach of Seller's representations and warranties set forth
in Section 4 of this Agreement.
(c) In the event that any claim is asserted against Seller or Buyer,
which, if established, would require indemnification under the terms of this
paragraph, then the party against whom the claim is asserted shall promptly give
the indemnifying party written notice of such claim and the indemnifying party
shall, within ten (10) days after posting of said written notice, notify the
party against whom the claim is asserted in writing, of the indemnifying party's
decision whether or not to defend against the asserted claim. Either party may
assist the other party in defending against any asserted claim and provide legal
counsel to the other at their own expense subject, however, to the provisions
under subparagraphs (a) and (b) above for indemnification of attorneys' fees. In
the event a claim is asserted as described herein, and the indemnifying party
elects not to defend against such claim or fails to notify the party against
whom the claim is asserted within the time provided herein that it intends to
defend against the claim, then the party against whom the claim is asserted may
defend against the claim and recover its reasonable attorneys' fees in
accordance with subparagraphs (a) and (b) above.
(d) Seller shall indemnify and hold Buyer harmless from any claim or
liability by reasons of any noncompliance by Seller with the provisions of the
Florida bulk sales law.
(e) The covenants, warranties and representations contained in this
Agreement shall be deemed to be material and relied upon by the party to which
they are made. They shall survive the execution, delivery and performance of
this Agreement and the consummation of the transaction contemplated hereunder
for a period of 18 months after consummation or until final settlement or
adjudication of any alleged breach of which written notification is given within
the 18-month period.
11. Application for FCC Approval.
(a) Buyer and Seller will each, using their respective best efforts and
diligent cooperation, take all steps necessary to cause to be prepared and filed
with the FCC a joint Assignment Application, complete in all material respects,
in such a timely manner that the transaction herein contemplated will not be
delayed, such application in any event to be filed not later than five (5)
Business Days after the date hereof, unless the parties agree otherwise in
writing, and Buyer and Seller will thereafter take all steps necessary to the
expeditious prosecution of such application to a favorable conclusion. Both
parties agree that they shall promptly and timely file any amendments necessary
to obtain a grant of the application and/or other information reasonably
requested by the FCC. Except for one assignment by Buyer to a wholly-owned
license subsidiary, neither Buyer nor Seller will voluntarily seek to amend the
Assignment Application without first obtaining written permission from the party
not seeking to amend.
(b) Each party to the Assignment Application will bear its own expense
in connection with the preparation of the applicable portions of such Assignment
Application and the prosecution
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of such Assignment Application. The FCC filing fees shall be shared equally by
the parties. Seller and Buyer shall each transmit to Buyer's counsel, along with
their respective portions of the Assignment Application, a check payable to
Buyer's counsel's trust account for $325.00 in payment of the filing fee (total
fee: $650.00). Seller will timely publish the notice in the newspaper and will
timely make the broadcast notice on WPVJ-FM as required by the FCC Rules and
Regulations with respect to the Assignment Application pursuant to Title 47
C.F.R. ss.73.3580. Buyer will timely furnish to Seller's counsel the necessary
information about the Buyer required to be contained in such notices.
12. Prorations. Except for those expense items listed in SCHEDULE 12,
attached hereto, the parties agree that Seller is responsible for payment of all
expenses incurred up to the Closing Date and is due credit on a pro rata basis
for the expenses paid for before the Closing Date, but for which the benefit
accrues after the Closing Date; and that Buyer is responsible for payment of all
expenses incurred on or after the Closing Date and is due credit on a pro rata
basis for such expenses which accrued before and/or on the Closing Date; and for
cash deposits (if any) made to cover charges arising after the Closing Date.
Therefore, to the extent possible, on the Closing Date, again within THIRTY (30)
days following the Closing Date, and finally, within SIXTY (60) days following
the Closing Date, the party from which the net of all adjustments, including,
but not limited to, the following, to be made on a pro rata basis as of the
Closing Date is due shall pay the same to the other party, in cash or by check
(net of deposits):
(a) Power and utility charges;
(b) All applicable sales, use and personal property taxes;
(c) Telephone; and
(d) Charges and deposits (if any) relating to items listed in
SCHEDULE 2(C) hereof.
13. Termination.
(a) This Agreement may be terminated at any time on or prior to
the Closing Date:
(i) by written agreement between Buyer and Seller; or
(ii) by Seller or Buyer at any time after the denial of
the Assignment Application or revocation of consent
by the Commission.
(b) This Agreement may be terminated by Seller provided that Seller is
not then in breach of any material representation, warranty or agreement
contained herein, at any time on or prior to the Closing Date in the event of a
material breach by Buyer of any other representation, warranty or agreement
contained herein which is not cured, or cannot be cured, within 30 days after
written notice of such breach has been delivered to the breaching party.
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(c) This Agreement may be terminated by Buyer, provided that Buyer is
not then in breach of any material representation, warranty or agreement
contained herein, at any time on or prior to the Closing Date in the event of a
material breach by Seller of any representation, warranty or agreement contained
herein which is not cured, or cannot be cured, within 30 days after written
notice of such breach has been delivered to Seller.
(d) Notwithstanding any provision to the contrary, the obligations of
Seller and Buyer to consummate the transactions contemplated hereby shall
terminate without any action on their part at 5:00 p.m. (Washington, D.C. time),
August 1, 1997, if the FCC has not approved the Assignment Application on or
prior to such time.
14. Fees. Buyer and Seller will indemnify and save each other harmless
from any claims or causes of action for brokers' or finders' fees.
15. Instruments of Conveyance and Transfer and Execution.
(a) At the Closing Place on the Closing Date, Seller shall deliver
to Buyer:
(i) Bills of Sale and other instruments of assignment,
conveyance and transfer, covering all of the assets
of Seller (listed in SCHEDULE 2(B)) to be transferred
hereunder;
(ii) Assignments of all Seller's leases, contracts and
agreements listed in SCHEDULE 2(C);
(iii) Assignment of the Permit;
(iv) A current UCC-11 search showing no liens or other
encumbrances upon the Assets;
(v) An opinion letter of Florida counsel to Seller, dated
as of the Closing Date, in form and substance
reasonably satisfactory to Buyer as to:
(A) the valid existence and good standing of
Seller;
(B) the due execution, delivery, validity and
enforceability of this Agreement;
(C) the noncontravention of Seller's charter
documents and applicable laws (other than
laws, rules and regulations administered by
the FCC); and
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(D) the conveyance of good title to the Assets,
subject to no recorded liens.
Provided that, in giving such opinions such Florida
counsel shall be permitted to rely on certificates
and statements of public officials and of officers of
Seller as to factual matters and may limit their
opinions to matters of Florida and federal law.
(vi) An opinion letter of FCC counsel to Seller, dated as
of the Closing Date, in form and substance reasonably
satisfactory to Buyer as to:
(A) the noncontravention of laws, rules and
regulations administered by the FCC:
(B) the absence of judgments, decrees or orders,
other than those that affect the broadcast
industry or segments thereof generally, that
have been issued by the FCC against Seller
with respect to its FCC authorizations that
reasonably could be expected to result in
termination, revocation or other material
adverse effect on such FCC authorizations;
(C) the absence of any complaint filed with the
FCC, or any proceeding, whether pending or,
to such counsel's knowledge, threatened
against Seller, or otherwise affecting the
Seller's FCC authorizations, including,
without limitation, any Notice of Violation,
Notice of Apparent Liability, Order to Show
Cause, or any investigatory proceeding
(other than investigations, actions or
proceedings that affect the broadcast
industry or segments thereof generally),
which complaint or proceeding reasonably
could be expected to result in a
termination, revocation or other material
adverse effect on Seller's FCC
authorizations or the transactions
contemplated hereby.
(D) The approval by the FCC for the assignment
of the Station's authorization to Buyer.
Provided that, in giving such opinions such FCC
counsel shall be permitted to rely on certificates
and statements of public officials and of officers of
Seller as to factual matters and may limit their
opinions to matters of federal law.
(vii) Assignment of the records described in SECTION 2(F)
hereof; and
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(viii) Such other documents or things as Buyer may
reasonably request in order to place Buyer in actual
possession and operating control of the Assets and to
convey clear title to the Station and of the Assets
to be transferred.
(b) At the Closing Place on the Closing Date, Escrow Agent and Buyer
shall deliver to Seller the following documents and things:
(i) Buyer shall deliver in Immediately Available Funds
the Purchase Price as described in Section 3 hereof;
(ii) Buyer shall deliver to Seller an instrument of
assumption evidencing Buyer's assumption of the
obligations under all of Seller's leases, contracts
and agreements listed in SCHEDULE 2(C) to this
Agreement;
(iii) Buyer shall deliver an opinion letter of its counsel,
dated as of the Closing Date, as to the valid
existence and good standing of Buyer, the due
execution, delivery, validity and enforceability of
this Agreement, and the noncontravention of Buyer's
charter documents and applicable law, including rules
and regulations promulgated or administered by the
FCC, all in form and substance reasonably
satisfactory to Seller; provided, that, in giving
such opinions such counsel shall be permitted to rely
on certificates and statements of public officials
and of officers of Buyer as to factual matters and
may limit their opinions to matters of federal law;
and
(iv) At the Closing Place on the Closing Date Buyer and
Seller shall execute and deliver to Escrow Agent
Joint Instructions directing Escrow Agent to deliver
to Buyer the Escrow Fund.
16. Preservation and Access of Books and Records. Buyer and Seller
shall have reasonable access to such records held by the other party for a
period of THREE (3) years after the Closing Date or until all income tax
liabilities of Seller (including the principals thereof) relating to the Station
have been settled, whichever is later, for the purpose of completing their tax,
bookkeeping and accounting procedures and filing requirements, and for other
purposes for which such access is reasonably necessary or proper.
17. Assignment. This Agreement may not be assigned without the written
consent of both parties, except that Buyer may assign its rights and obligations
under this Agreement, in whole or in part, without Seller's consent to one or
more subsidiaries or commonly controlled affiliates of Buyer.
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18. Notices. All necessary notices, demands and requests shall be
deemed duly given, if mailed by registered mail, postage prepaid, and addressed
to the following: If to the Seller:
Xx. Xxxxx X. Xxxxxx, President
InterMart Broadcasting of North Carolina, Inc.
c/o InterMart Broadcasting Company
0000 Xxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
cc: (which shall not constitute notice)
Xxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx & Belendiuk, P.C.
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, D. C. 20036
If to the Buyer:
Xxxxxx Broadcasting of Jacksonville, Limited Partnership
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
c/o Xxxxxxx X. Xxxxxx, Esquire
cc: (which shall not constitute notice)
Xxxx X. Xxxxx, Xx., Esq.
Dow, Xxxxxx & Xxxxxxxxx, P.L.L.C.
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
19. Miscellaneous.
(a) This Agreement and the Schedule Volume contain the entire agreement
of the parties with respect to the transactions contemplated and supersedes all
prior negotiations between the parties concerning the subject matter contained
herein. No change, modification or waiver of any provision hereof will be valid
unless in writing and signed by the party to be bound.
(b) No delay or failure on the part of either party in exercising any
rights hereunder, and no partial or single exercise thereof, will constitute a
waiver of such rights or of any other rights hereunder.
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(c) This Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
(d) Nothing in this Agreement will be construed as giving any person,
firm, corporation or other entity, other than the parties hereto, their
respective heirs, executors, administrators, successors and assigns any right,
remedy or claim under or in respect of this Agreement or any provision hereof.
(e) This Agreement shall be construed and interpreted in accordance
with the laws of the State of Florida.
(f) This Agreement may be executed in counterpart, each of which shall
be deemed an original.
(g) If any provision of this Agreement is invalid or unenforceable,
such provision shall be deemed null and void, but the balance of this Agreement
shall remain in effect.
(h) In the event Seller refuses to close and Buyer is not in default,
it is understood and agreed that due to the unique and unascertainable value of
the Permit, Buyer may seek specific performance as well as other remedies at law
or in equity.
(i) The risk of loss, damage or destruction of the property or assets
to be transferred to the Buyer hereunder from fire or other casualty or cause
shall be borne by Seller at all times up to the completion of the Closing.
Should any loss, damage, or destruction to any of the property or assets to be
transferred hereunder from fire, casualty or other causes occur prior to the
Closing, Seller shall notify Buyer of same in writing immediately. Such notice
shall specify with particularity the loss or damage incurred, the cause thereof
(if known or reasonably ascertainable), and the insurance coverage.
In the event of such loss, damage or destruction, Seller, at Buyer's
option, shall either (i) promptly repair, replace, or restore the property or
assets to their previous condition at Seller's sole cost and expense or (ii)
assign to Buyer all proceeds of insurance theretofore received or to which
Seller would be entitled an a result of such loss, damage or destruction, in
which event Buyer shall be responsible for the repair, replacement or
restoration of the property or assets.
In the event that Buyer elects that Seller repair, replace or restore
the property or assets as set forth in clause (i) above and such property or
assets are not completely repaired, replaced or restored on or before the
Closing, Buyer, at its sole option, may elect:
(i) to postpone the Closing until such time as the
property or assets have been completely repaired,
replaced or restored to the reasonable satisfaction
of Buyer and, if necessary, Seller shall join Buyer
in requesting from the FCC
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any extensions of time in which to consummate the
transfer of the Station which may be required in
order to complete such repairs; or
(ii) to consummate the Closing and accept the property in
its then condition, in which event Seller shall
assign to Buyer all proceeds of insurance theretofore
received or to which Seller would be entitled and a
result of such loss, damage or destruction, together
with any additional amounts required to repair,
replace or restore the property or assets if such
proceeds do not equal the loss (together with an
itemization of such costs). In the event that the
insurance proceeds and any additional amounts paid by
Seller to Buyer at Closing are insufficient to
repair, replace or restore the property or assets,
then the Seller shall pay the deficiency to Buyer in
the form of an adjustment to the Purchase Price at
Closing.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
SELLER:
ATTEST INTERMART BROADCASTING
FIRST COAST, INC.
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
---------------------------- -------------------------------
Xxxxx X. Xxxxxx, President
BUYER:
ATTEST XXXXXX BROADCASTING
OF JACKSONVILLE,
LIMITED PARTNERSHIP
By: /s/ Paxon Communications of
---------------------------- -------------------------------
Florida, Inc.
-------------------------------
GENERAL PARTNER
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
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