Exhibit 10.5
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT") is made as of the 26th
day of July, 2004, by and among NEWSWEB CORPORATION, an Illinois corporation
("PURCHASER"), and SPANISH BROADCASTING SYSTEM OF ILLINOIS, INC., a Delaware
corporation ("SELLER").
WHEREAS, the following wholly-owned, single-purpose subsidiaries of Seller
(collectively the "SELLER AFFILIATES") are the licensees of the following radio
broadcast stations (collectively the "STATIONS"): WDEK Licensing, Inc., a
Delaware corporation: WDEK(FM), licensed to DeKalb, Illinois; WKIE Licensing,
Inc, a Delaware corporation.: WKIE(FM), licensed to Arlington Heights, Illinois;
and WKIF Licensing, Inc., a Delaware corporation: WKIF(FM), licensed to
Kankakee, Illinois;
WHEREAS, Seller owns the assets which are used in the operation of the
Stations;
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, certain of the radio station properties and assets
relating to the Stations as described herein under the terms and conditions
herein set forth; and
WHEREAS, Purchaser intends to assign its right, title and interest in each
of the Stations to separate Affiliates and Seller agrees to such assignment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS AND REFERENCES
Capitalized terms used herein without definition shall have the respective
meanings assigned thereto in Annex I attached hereto and incorporated herein for
all purposes of this Agreement (such definitions to be equally applicable to
both the singular and plural forms of the terms defined). Unless otherwise
specified, all references herein to "Articles," "Sections," "Exhibits" and
"Schedules" are to Articles, Sections, Exhibits or Schedules of this Agreement.
The word "include," "includes" and "including" shall be deemed to be followed by
the phrase "without limitation." The terms "hereof," "herein," and "herewith"
and words of similar import shall, unless otherwise stated, be construed to
refer to this Agreement and not to any particular provision of this Agreement.
The word "or" shall not be exclusive and provisions shall apply, when
appropriate, to successive events and transactions.
ARTICLE 2.
PURCHASE AND SALE
2.1. PURCHASE AND SALE OF ASSETS.
Subject to the conditions set forth in this Agreement, at the Closing,
Seller shall assign, transfer, convey and deliver to Purchaser, and Purchaser
shall purchase and accept from Seller, all right, title and interest of Seller
in and to the following assets relating to the Stations (the "PURCHASED
ASSETS"), free and clear of all Liens (other than Permitted Liens):
2.1.1. FCC LICENSES.
All licenses, construction permits or authorizations issued by or
pending before the FCC for use in the operation of the Stations that are set
forth on Schedule 2.1.1 attached hereto, together with any and all renewals,
extensions and modifications thereof (the "FCC LICENSES").
2.1.2. OWNED TRANSMITTER SITE.
The real property, improvements and fixtures owned by Seller at the
sites described on Schedule 2.1.2 hereto (the "OWNED TRANSMITTER SITE").
2.1.3. LEASED TRANSMITTER SITES.
The leasehold interests of Seller at each of the sites described on
Schedule 2.1.3 hereto (the "LEASED TRANSMITTER SITES" and together with the
Owned Transmitter Site, the "TRANSMITTER SITES").
2.1.4. TRANSMISSION EQUIPMENT.
The broadcast towers, antennas, main and back-up transmitters and
generators, STLs and other tangible personal property owned by Seller and
located, or otherwise held for use, at the Transmitter Sites that are set forth
on Schedule 2.1.4 hereto, together with replacements thereof and additions
thereto made between the date hereof and the Closing (the "TRANSMISSION
EQUIPMENT").
2.1.5. STUDIO SITE.
The leasehold interest of Seller at the site described on Schedule
2.1.5 hereto together with replacements thereof and additions thereto made
between the date hereof and the Closing (the "STUDIO SITE").
2.1.6. STUDIO EQUIPMENT.
The studio equipment as described on Schedule 2.1.6 hereto together
with replacements thereof and additions thereto made between the date hereof and
the Closing (the "STUDIO EQUIPMENT").
2.1.7. OFFICE EQUIPMENT.
The office equipment as described on Schedule 2.1.7 hereto together
with replacements thereof and additions thereto made between the date hereof and
the Closing (the "OFFICE EQUIPMENT").
2.1.8. CERTAIN INTANGIBLE PROPERTY.
The call letters of the Stations as described on Schedule 2.1.8
hereof (the "CALL LETTERS").
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2.1.9. BUSINESS RECORDS.
Unless as may be otherwise required by law, the books, files and
records related to the Purchased Assets, such as property tax records, equipment
instruction material and warranties, logs, all materials maintained in the FCC
public file relating to the Stations, technical data, political advertising
records and all other records, correspondence with and documents pertaining to
the operation of the station and governmental authorities and similar third
parties (the "BUSINESS RECORDS").
2.1.10. EQUIPMENT WARRANTIES.
The manufacturer and vendor warranties, if any, on the Transmission
Equipment, Studio Equipment and Office Equipment as are set forth in Schedule
2.1.10 hereto (the "Equipment Warranties").
2.1.11. SECURITY DEPOSIT.
Seller's interest in the Security Deposit in the amount of One Thousand
Six Hundred Dollars ($1,600.00) held by Sonsinger Broadcasting Company of
Chicago, LLC pursuant to Tower Lease Agreement between Big City Radio,
Inc. and Sonsinger Broadcasting Company of Chicago, LLC dated September
17, 1998 and the Consent to Assignment, Assumption and Estoppel dated as
of January 24, 2003.
2.1.12. OTHER TANGIBLE AND INTANGIBLE ASSETS.
All other fixed, tangible and intangible assets used and usable in
the operations of the Stations together with replacements thereof and additions
thereto made between the date hereof and the Closing.
2.2. EXCLUDED ASSETS.
Notwithstanding the terms of Section 2.1, Seller shall not assign,
transfer, convey or deliver to Purchaser, and Purchaser shall not purchase and
accept, and the Purchased Assets shall not include, any of Seller's right, title
and interest in and to any of the following assets (the "EXCLUDED ASSETS"):
2.2.1. CASH.
All cash and cash equivalents of Seller or the Stations on hand on
the day immediately preceding the Closing Date.
2.2.2. RECEIVABLES.
Any Accounts Receivable, notes receivable or other receivables of
Seller (including Tax refunds).
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2.2.3. DEPOSITS AND PREPAID EXPENSES.
All deposits and prepaid expenses of the Stations.
2.2.4. INTELLECTUAL PROPERTY.
That Intellectual Property of Seller set forth on Schedule 2.2.4
hereof.
2.2.5. CERTAIN BOOKS AND RECORDS.
Seller's corporate seal, minute books, charter documents, corporate
stock record books and other books and records that pertain to the organization
of Seller.
2.2.6. SECURITIES.
All securities of any kind owned by Seller.
2.2.7. INSURANCE.
All insurance contracts or proceeds thereof.
2.2.8. TIME SALES AGREEMENTS.
All time sales agreements or barter rights of the Stations.
2.2.9. PRE-CLOSING CLAIMS.
All claims arising out of acts occurring prior to the Closing Date,
or claims that relate to the period prior to the Closing Date.
2.2.10. RIGHTS UNDER THIS AGREEMENT.
All of the rights of Seller under or pursuant to this Agreement.
2.2.11. EMPLOYEE BENEFIT PLANS.
All pension, profit sharing, retirement, bonus, medical, dental,
life, accident insurance, disability, executive or deferred compensation, and
other similar fringe or employee benefit plans.
2.3. ASSUMED LEASES.
At the Closing, Purchaser shall assume the obligations of Seller for
periods on and after the Closing Date under the leases set forth on Schedule
2.1.3, Schedule 2.1.5 and Schedule 2.3 hereof (the "ASSUMED LEASES"), and
Purchaser agrees to pay and perform the Assumed Leases from and after the
Closing Date.
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2.4. ASSUMED CONTRACTS.
At the Closing, Purchaser shall assume the obligations of Seller for
periods on and after the Closing Date under the agreements set forth on Schedule
2.4 hereof (the "Assumed Contracts"), and Purchaser agrees to pay and perform
the Assumed Contracts from and after the Closing Date. Except as specifically
set forth in the preceding sentence, Purchaser does not assume and shall in no
event be liable for any Liability of the Stations or Seller, including any
Liabilities with respect to any employees of Seller.
2.5. EXCLUDED LIABILITIES.
Except for the Assumed Leases and Assumed Contracts, Purchaser shall not
assume or be liable for and Seller shall retain, pay, perform and discharge when
due, and indemnify and hold Purchaser harmless in accordance with Article 13
from and against, any other Liabilities of Seller (the "EXCLUDED LIABILITIES"),
including the following Liabilities: All Taxes of Seller or attributable to the
Business or the Stations Assets for any period, or any portion of any period,
ending prior to the Closing Date.
2.5.1 All Taxes of Seller attributable to the business of operating the
Stations or the Purchased Assets resulting from the transactions contemplated
hereby (except as provided in Section 3.6.2).
2.5.2 All Liabilities relating to or arising out of Tradeout Agreements
and all other Excluded Assets.
2.5.3 Any Liabilities of Seller under this Agreement.
2.5.4 Any Liabilities arising out of any severance policy of Seller or any
severance agreement or similar arrangement between Seller and any employee of
Seller that also results or arises from the transactions contemplated by this
Agreement.
2.5.5 Any Liabilities for severance or any similar obligation of Seller
arising by operation of Law that results or arises from the transactions
contemplated by this Agreement.
2.5.6 Any Liabilities arising out of vacation benefits for any employee of
Seller that accrued or were earned prior to the Closing Date.
2.5.7 All Liabilities arising out of or relating to the ownership of the
Stations Assets or operation of the Stations, Purchased Assets or the Stations
prior to the Closing Date.
ARTICLE 3.
PURCHASE PRICE; CLOSING
3.1. PURCHASE PRICE.
The purchase price for the Purchased Assets shall be Twenty-Eight Million
Dollars ($28,000,000.00) (the "PURCHASE PRICE"). Purchaser shall pay the
Purchase Price in cash to
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Seller at Closing by wire transfer of immediately available funds to an account
or accounts identified by Seller in writing prior to Closing.
3.2. ESCROW DEPOSIT.
Upon the execution of the Escrow Agreement, concurrent with the execution
of this Agreement, Purchaser, by bank wire transfer of immediately available
funds, shall deposit in escrow with SunTrust Bank, a Georgia banking
corporation, acting as escrow agent on the parties' behalf ("ESCROW AGENT"), a
deposit ("DEPOSIT") in the amount of One Million Four Hundred Thousand Dollars
($1,400,000.00). The Deposit shall be security for the consummation of the sale
of the Purchased Assets and shall be held in escrow pursuant to a separate
escrow agreement ("ESCROW AGREEMENT") entered into between Seller, Purchaser and
the Escrow Agent in the form of Exhibit A hereto. In the event of any conflict
between this Agreement and the Escrow Agreement, the terms of the Escrow
Agreement shall control. The Deposit shall be invested and disbursed in
accordance with the terms of the Escrow Agreement.
3.3. TIME OF CLOSING.
The closing for the sale and purchase of the Purchased Assets (the
"CLOSING") shall be conducted via electronic mail, with original signatures to
follow via overnight courier, or in such other manner as shall be mutually
agreed upon by Seller and Purchaser. Subject to the satisfaction of the
conditions precedent set forth in Article 8 and Article 9 of this Agreement, the
Closing shall occur on such date (the "CLOSING DATE") that is the fifth (5th)
Business Day after the latter of the date on which the FCC Assignment Order or
the FCC Renewal Order for each of the Stations shall have become a Final Order.
The Closing shall be deemed to be effective as of 12:01 a.m. on the Closing
Date.
3.4. CLOSING PROCEDURES.
At the Closing, Seller shall deliver to the appropriate Purchaser
Affiliate, as directed by Purchaser, all Ancillary Agreements in the name of the
appropriate Purchaser Affiliate. Against such delivery, Purchaser shall, or
cause Purchaser's Affiliates to (a) pay the Purchase Price to Seller in
accordance with Section 3.1 above and (b) execute and deliver an assumption
agreement with respect to the Assumed Contracts in a form reasonably acceptable
to both Seller and Purchaser. Each party will cause to be prepared, executed and
delivered all other documents required to be delivered by such party pursuant to
this Agreement and all other appropriate and customary documents as another
party or its counsel may reasonably request for the purpose of consummating the
transactions contemplated by this Agreement. All actions taken at the Closing
shall be deemed to have been taken simultaneously at the time the last of any
such actions is taken or completed. The Purchaser shall remain primarily liable
as a guarantor for all Purchaser Affiliates.
3.5. ALLOCATION OF PURCHASE PRICE.
3.5.1. Seller and Purchaser each represent, warrant, covenant, and agree
with each other that the Purchase Price shall be allocated among the classes of
Purchased Assets for each Station for all purposes (including financial,
accounting and Tax purposes), as agreed by the parties
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within ninety (90) days after the Closing Date. If Seller and Purchaser are
unable to agree on such allocation within ninety (90) days following execution
of this Agreement, Seller and Purchaser agree to retain a nationally recognized
appraisal firm experienced in valuing radio broadcast properties which is
mutually acceptable to Seller and Purchaser (the "Appraisal Firm") to appraise
the classes of Purchased Assets of each Station. The Appraisal Firm shall be
instructed to perform an appraisal of the classes of Purchased Assets of each
Station and to deliver a report to Seller and Purchaser as soon as reasonably
practicable. The fees, costs and expenses of the Appraisal Firm, whether or not
the transactions contemplated hereby are consummated, shall be paid and borne
equally by Seller and Purchaser. If the agreed upon allocation of the purchase
price is disputed by any Governmental Authority, the party receiving notice of
such dispute shall promptly notify the other party hereto concerning the
existence and resolution of such dispute. Notwithstanding the terms of this
Section 3.5.1, the Purchase Price for the Owned Transmitter Site must be
separately allocated on or prior to the Closing Date.
3.5.2. Seller and Purchaser agree, pursuant to Section 1060 of the Code,
that the Purchase Price shall be allocated in accordance with this Section
3.5.1, and that all Tax returns and reports shall be filed consistent with such
allocation. Notwithstanding any other provision of this Agreement, the
provisions of this Section 3.5. shall survive the Closing Date without
limitation.
3.6. PRORATIONS.
3.6.1. All items of income and expense arising from the operation of the
Stations with respect to the Purchased Assets and the Assumed Contracts on or
before the close of business on the Closing Date shall be for the account of
Seller and thereafter shall be for the account of Purchaser. Proration of the
items described below between Seller and Purchaser shall be effective as of
12:00 midnight, local time, on the Closing Date and shall occur as follows with
respect to those rights, liabilities and obligations of Seller transferred to
and assumed by Purchaser hereunder.
3.6.2. Liability for state and local Taxes assessed on the Purchased
Assets payable with respect to the tax year in which the Closing Date falls
shall each be prorated as between Seller and Purchaser on the basis of the
number of days of the Tax year elapsed to and including the Closing Date.
Notwithstanding the terms of this Section 3.6.2, liability for all real estate
Taxes accrued but not yet payable as of the Closing Date on the Owned
Transmitter Site shall be prorated as of the Closing Date based upon 110% of the
last ascertainable real estate tax xxxx and upon the actual number of days in
the calendar year in which the Closing occurs. The Seller shall be responsible
for all real estate general property (ad valorem) taxes accruing by reason of
any improvements to the Owned Transmitter Site made up to the Closing. In the
event that at the time of the Closing, the Owned Transmitter Site or any portion
thereof shall be or shall have been affected by any assessment, levy, charge or
other imposition that is or may become payable in installments, then for
purposes of this Agreement, all of the unpaid installments thereof shall be
considered due and payable and liens upon the Owned Transmitter Site affected
thereby and shall be paid and discharged by the Seller at the Closing or,
credited by the Seller at the Closing against and reduce the Purchase Price.
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3.6.3. The FCC annual regulatory fees for the fiscal year October 1, 2004
through September 20, 2005 for the Stations which are payable in September, 2005
shall be assumed to be the same as the annual regulatory fees paid in September,
2004 and shall be prorated at Closing as of the Closing Date.
3.6.4. Prepaid items, deposits, credits and accruals such as water,
electricity, telephone, other utility and service charges, lease expenses,
license fees (if any) and payments under any contracts or utility services to be
assumed by Purchaser shall be prorated between Seller and Purchaser on the basis
of the period of time to which such liabilities, prepaid items and accruals
apply.
3.6.5. Filing and recordation fees and any other fees incurred in
connection with the transfer of title to the property being conveyed hereunder,
and any applicable transfer, sales or use taxes, and all expenses incurred in
connection with such filing or recordation, shall be borne equally by Seller and
Purchaser.
3.6.6. All prorations shall be made and paid insofar as feasible on the
Closing Date; any prorations not made on such date shall be made as soon as
practicable (not to exceed ninety (90) days) thereafter. As soon as practical
within said ninety (90) day period, Purchaser shall deliver to Seller
Purchaser's certificate setting forth as of the Closing Date all adjustments to
be made as provided in this Article 3. Purchaser shall provide Seller or
Seller's representatives access to copies of all books and records as Seller may
reasonably request for purposes of verifying such adjustments. Purchaser's
certificate shall be final and conclusive unless objected to by Seller in
writing within thirty (30) days after delivery. Seller and Purchaser shall
attempt jointly to reach agreement as to the amount of the adjustments to be
made hereunder within sixty (60) days after receipt by Purchaser of such written
objection by Seller, which agreement, if achieved, shall be binding upon all
parties to this Agreement and not subject to dispute or review. In the event of
a disagreement between Purchaser and Seller with respect to the accounting to be
made hereunder, the parties agree that a public accounting firm chosen jointly
by Purchaser and Seller shall be the final arbiter of such disagreement. The
cost of such accounting firm shall be shared equally by the parties. Any amounts
due Purchaser or Seller for the adjustments provided for herein shall be paid
within ten (10) calendar days after final determination.
ARTICLE 4.
USE OF STUDIOS
4.1. For the period not to exceed nine (9) months following the Closing Date,
Seller shall grant to Purchaser a license to use such portions of the studio
located at 000 X. Xxxxxxxx Xxxxxx, Xxxxxxx, XX, as are presently being used by
Seller for the operation of Stations WKIE, WKIF and WDKR. As Seller is renting
the premises at 000 X. Xxxxxxxx Xxxxxx, Seller shall use its best efforts to
obtain written consent from the landlord agreeing to Purchaser's occupation and
use of the premises. During said license period, Purchaser shall use
commercially reasonable efforts to relocate studio facilities for WKIE, WKIF and
WDKR. Such license shall be substantially in the form of the Studio Use License
Agreement attached as Exhibit G hereto.
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4.2. Seller shall use its best efforts to obtain for Purchaser the continued
right to use the present main studio location for Station WKIF and the present
main studio location of Station WDEK.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby covenants, represents and warrants to Purchaser that the
following are true and correct as of the date of this Agreement and will be true
and correct at Closing, unless expressly stated otherwise, to wit:
5.1. ORGANIZATION; GOOD STANDING.
Seller is a Delaware corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware and Illinois. Seller has
all requisite power and authority to own and lease its properties and carry on
its business as currently conducted. Each Seller Affiliate is a Delaware
corporation, duly organized, validly existing and in good standing under the
laws of the State of Delaware and Illinois. Each Seller Affiliate has all
requisite power and authority to be the licensee of the Station of which it is
the licensee.
5.2. PERFORMANCE OF SELLER AFFILIATES.
Each Seller Affiliate shall perform such acts and duties as are required
to consummate this transaction.
5.3. DUE AUTHORIZATION.
Subject to the FCC Assignment Order, Seller has full power and authority
to enter into and perform this Agreement to carry out the transactions
contemplated hereby. Seller has taken all necessary action to approve the
execution and delivery of this Agreement and the transactions contemplated
hereby. This Agreement constitutes the legal, valid and binding obligation of
Seller, enforceable against it in accordance with its terms, except as may be
limited by the availability of equitable remedies or by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally.
5.4. EXECUTION AND DELIVERY.
Neither the execution and delivery by Seller of this Agreement or the
Ancillary Agreements nor the consummation by Seller of the transactions
contemplated hereby or thereby will: (a) conflict with or result in a breach of
any provisions of Seller's organizational documents, (b) subject to the FCC
Assignment Order, violate any Law or Order of any court or Governmental
Authority; or (c) violate or conflict with or constitute a default under (or
give rise to any right of termination, cancellation or acceleration under), or
result in the creation of any Lien on any of the Purchased Assets pursuant to,
any agreement, indenture, mortgage or other instrument to which Seller is a
party or by which it or its assets may be bound or affected.
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5.5. GOVERNMENTAL APPROVALS.
No approval, authorization, consent, order or other action of, or filing
with, any court or Governmental Authority is required in connection with the
execution and delivery by Seller of this Agreement or the Ancillary Agreements
or the consummation of the transactions contemplated hereby or thereby, other
than those of the FCC.
5.6. TITLE TO PERSONAL PROPERTY.
Seller is the sole and exclusive legal owner of all right, title and
interest in, and has good and marketable title to, all of the Purchased Assets
constituting personal property, free and clear of all Liens except (a) Permitted
Liens, (b) Liens which will be released on or prior to the Closing, or (c) the
Assumed Contracts. Subject to Seller's right to dispose of any properties,
equipment and assets in the ordinary course of business, on the Closing Date,
Seller will convey to Purchaser good and valid title to such properties,
equipment and assets and any other properties, equipment and assets acquired by
it subsequent to the date hereof and used or usable in the business or operation
of the Stations, free of any and all Liens and rights of third parties of any
kind whatsoever.
5.7. LEASED TRANSMITTER SITES AND STUDIO SITE.
5.7.1. Seller has valid, binding and enforceable leasehold interests,
which are free and clear of all Liens except for Permitted Liens, in and to the
Leased Transmitter Sites and Studio Site.
5.7.2. Seller has not received from any Governmental Authority any notice
of, and has no knowledge of, any violation of or notice of noncompliance with
any zoning, building, health, fire, water use or similar Law in connection with
the Leased Transmitter Sites or Studio Site. There is no zoning ordinance or
building code or use or occupancy restriction or condemnation proceeding pending
or, to the knowledge of Seller, threatened, which would preclude or impair the
use of the Leased Transmitter Sites or the Studio Site or the improvements
thereon by Purchaser, in the manner and for the purposes for which they are
presently used and, to the knowledge of Seller, no fact or condition exists
which would result in the termination or impairment of access of the Stations to
the Leased Transmitter Sites or the Studio Site or discontinuation of necessary
sewer, water, electrical, gas, telephone or other utilities or services.
5.8. TANGIBLE PERSONAL PROPERTY.
Schedule 2.1.4, Schedule 2.1.6 and Schedule 2.1.7 sets forth a list,
complete and accurate in all material respects, of the Purchased Assets which
consist of tangible personal property. All of such tangible personal property
are in good condition and working order, ordinary wear and tear excepted, and
free from any known defects except such minor defects that do not interfere with
the continued present use thereof by Seller and are in material compliance with
all current FCC requirements and all other applicable Law.
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5.9. FCC LICENSES.
Schedule 2.1.1 lists and accurately describes all of the FCC Licenses
necessary for the lawful ownership and operation of the Stations and the conduct
of their businesses. Seller has furnished to Purchaser true and accurate copies
of all of the FCC Licenses. Each such FCC License is in full force and effect
and is valid under applicable Laws; the Stations are being operated in
compliance in all material respects with the Communications Act; and to the
knowledge of Seller, no event has occurred which (whether with or without
notice, lapse of time or the happening or occurrence of any other event) is
reasonably likely to result in the revocation or termination of any FCC License
or the imposition of any restriction of such a nature as would have a Material
Adverse Effect, except for proceedings of a legislative or rule-making nature
intended to affect the broadcasting industry generally. The Stations, each of
their physical facilities, electrical and mechanical systems and transmitting
and studio equipment are being operated in all material respects in accordance
with the specifications of the FCC Licenses. The FCC Licenses are unimpaired by
any act or omission of Seller or any of Seller's officers, directors or
employees and, Seller has fulfilled and performed all of Sellers obligations
with respect to the FCC Licenses and has full power and authority thereunder. No
application, action or proceeding is pending for the modification of any of the
FCC Licenses. No event has occurred which, individually or in the aggregate, and
with or without the giving of notice or the lapse of time or both, would
constitute grounds for revocation or non-renewal thereof. There are no
proceedings or complaints pending or, to the knowledge of Seller, threatened at
the FCC against Seller with respect to the Stations and Seller is not aware of
any facts or circumstances that could reasonably provide a basis for any such
proceedings or complaints.
5.10. COMPLIANCE WITH LAW.
On the Closing Date the operation of the Stations will be in compliance in
all material respects with all applicable Law and there will be no judgment
outstanding or litigation or proceeding pending or, to Seller's knowledge,
threatened which affects the title or interest of Seller in or to any license or
any of the other Purchased Assets or its power or right to sell, convey,
transfer or assign the same to Purchaser as provided herein, or which would
prevent or affect the operation and use of the same by Purchaser, as presently
operated and used by Seller.
5.11. REPORTS.
Seller has duly filed all reports required to be filed by any Law or Order
of any court or Governmental Authority and has made payment of all charges and
other payments, if any, shown by such reports to be due and payable. All reports
required to be filed by Seller with the FCC with respect to the Stations have
been filed. Such reports and disclosures are complete and accurate in all
material respects.
5.12. TAXES.
All Tax reports and returns required to be filed by or relating to the
Purchased Assets have been filed with the appropriate Governmental Authority,
and there have been paid all Taxes, penalties, interest, deficiencies,
assessments or other charges due with respect to such Taxes, as reflected on the
filed returns or claimed to be due by such federal, state or local taxing
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authorities (other than Taxes, deficiencies, assessments or claims which are
being contested in good faith and which in the aggregate are not material).
Seller has not received any written notice of any examinations or audits pending
or unresolved examinations or audit issues with respect to Seller's federal,
state or local Tax returns that could adversely affect the Purchased Assets. All
additional Taxes, if any, assessed as a result of such examinations or audits
have been paid, and to Seller's knowledge, there are no pending claims or
proceedings relating to, or asserted for, Taxes, penalties, interest,
deficiencies or assessments against the Purchased Assets.
5.13. OWNED TRANSMITTER SITE.
5.13.1. Seller has good and marketable title to the Owned Transmitter
Site, free and clear of all Liens and exceptions, except for Permitted
Exceptions.
5.13.2. Seller has not received from any Governmental Authority any notice
of, and has no knowledge of, any violation of or notice of noncompliance with
any zoning, building, health, fire, water use or similar Law in connection with
the Owned Transmitter Site. The Owned Transmitter Site is currently zoned in a
manner which permits the use of the Owned Transmitter Site or the improvements
thereon by Purchaser, in the manner and for the purposes for which they are
presently used. There is no zoning ordinance or building code or use or
occupancy restriction or condemnation proceeding pending or, to the knowledge of
Seller, threatened, which would preclude or impair the use of the Owned
Transmitter Site or the improvements thereon by Purchaser, in the manner and for
the purposes for which they are presently used and, to the knowledge of Seller,
no fact or condition exists which would result in the termination or impairment
of access of the Station or to the Owned Transmitter Site or discontinuation of
necessary sewer, water, electrical, gas, telephone or other utilities or
services.
5.13.3. Neither the Owned Transmitter Site nor the ground or ground water
there underlying contain or are contaminated by, nor has the Owned Transmitter
Site ever been utilized to release, place, treat, dispose of, discharge,
generate or store for more than 90 days, any toxic, hazardous, corrosive,
pesticidal or radioactive substance or material, polychlorinated biphenyls,
asbestos or any other unsafe or hazardous material.
5.13.4. There are no covenants or restrictions affecting the Owned
Transmitter Site not shown in the public records.
5.13.5. To Seller's knowledge, the Owned Transmitter Site does not contain
any underground storage tanks.
5.13.6. As of the Closing and except as elsewhere herein expressly
provided for, there shall exist no contracts for the sale and purchase
(including options, redemption rights and rights of first refusal) of the Owned
Transmitter Site other than this Agreement, or leases, subleases, tenancies,
subtenancies, reservations, licenses or other interests in, to, of, for or
against the Owned Transmitter Site not of public record, or operation,
management, service, labor, maintenance, cleaning, utility, brokerage, listing,
construction, design or other types of contracts or instruments with respect to
the Owned Transmitter Site not fully paid and performed which will survive the
Closing.
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5.13.7. The Seller is not a "foreign person" as that term is defined in
Internal Revenue Code Section 1445(f) (or any successor provision thereto) and
the regulations thereunder.
5.13.8. To Seller's knowledge, no violation(s) of any health, safety,
building, zoning, fire, environmental, tenant right or other applicable code,
ordinance, rule, regulation, order, law or statute with respect to the Owned
Transmitter Site exists.
5.13.9. To Seller's knowledge, no eminent domain or condemnation
proceeding or other taking with respect to any of the Owned Transmitter Site has
been commenced, noticed or threatened by any government, quasi-government,
public utility or other entity having such power.
5.13.10. to Seller's knowledge, no notice of any increased assessed
valuation of the Owned Transmitter Site for purposes of real estate general
property (ad valorem) taxes has been issued.
5.13.11. There are no amounts owed to the State of Illinois, including
specifically the Illinois Department of Revenue, or any successor agency or
department, by the Seller or with respect to the Owned Transmitter Site that is
chargeable against the Purchaser and/or the Owned Transmitter Site pursuant to
35 ILCS 5/902(d), as amended, or 35 ILCS 120/5j, as amended, or any portion of
the Illinois Sales Tax Act.
5.13.12. All of the improvements on the Owned Transmitter Site are in good
working order and repair without any defects which would prevent the operation,
use and function thereof in a normal and expected manner and the same comply
with all legal requirements therefor.
5.13.13. There are no actions, suits, proceedings, judgments, orders,
decrees, defaults, delinquencies or deficiencies outstanding, pending or, to
Seller's knowledge, threatened against the Owned Transmitter Site or the Seller
which would affect the Seller's ability to perform hereunder or the continued
use, maintenance, occupancy or operation of the Owned Transmitter Site in the
same manner as on the date of this Agreement.
5.13.14. The Owned Transmitter Site is free and clear of any and all
mechanic liens and claims thereof or rights thereto, either inchoate or
consummated.
5.14. ENVIRONMENTAL MATTERS.
5.14.1. Except as set forth in Schedule 5.14, with respect to the
Purchased Assets, Seller is in material compliance with all Environmental Laws.
5.14.2. Except as set forth in Schedule 5.14, the Seller is not aware of
any pending or threatened litigation or proceedings before any administrative or
judicial body or authority relating to the presence, release, threat of release
or placement at, on or in the Owned Transmitter Site, or the generation,
transportation, storage, treatment, or disposal to or at the Owned Transmitter
Site, of any hazardous substance and has not received any notice of the same.
5.14.3. To Seller's knowledge, except as set forth in Schedule 5.14, the
Owned
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Transmitter Site has never appeared on any federal or state registry of inactive
hazardous waste sites.
5.14.4. To Seller's knowledge, except as set forth in Schedule 5.14, no
condition exists at the Transmitter Sites or Studio Site that is reasonably
likely to result in a material claim under Environmental Laws.
5.14.5. Except as set forth in Schedule 5.14, there are no pending or, to
the knowledge of Seller, threatened actions, suits, claims, or other legal
proceedings based on (and Seller has not received any written notice of any
complaint, order, directive, citation, notice of responsibility, notice of
potential responsibility, or information request from any Governmental Authority
arising out of or attributable to): (a) the current or past presence at any part
of the Transmitter Sites or Studio Site of Hazardous Materials; (b) the current
or past release or threatened release into the environment from the Transmitter
Sites or Studio Site (including into any storm drain, sewer, septic system or
publicly owned treatment works) of any Hazardous Materials; (c) the off-site
disposal of Hazardous Materials originating on or from the Transmitter Sites or
Studio Site or the businesses or Purchased Assets of Seller; (d) any violation
of Environmental Laws at any part of the Transmitter Sites or Studio Site (i)
arising from Seller's activities involving Hazardous Materials, or (ii) to
Seller's knowledge, from the activities of any other Person involving Hazardous
Materials.
5.14.6. Except as set forth in Schedule 5.14, Seller has been duly issued
all permits, licenses, certificates and approvals required under any
Environmental Law to operate the Purchased Assets as they are currently
operated.
5.14.7. Seller has made available to Purchaser all environmental
assessments, reports, audits and other documents in its possession or under its
control that relate to the Transmitter Sites or Seller's compliance with
Environmental Laws with respect to the Purchased Assets.
5.14.8. Within sixty (60) days following the date of this Agreement (the
"Environmental Inspection Period"), Purchaser and/or its agents, employees and
contractors, shall be entitled to (i) enter upon the Transmitter Sites and
Studio Site, on at least twenty-four (24) hours' notice to Seller, to perform
inspections and tests of the Transmitter Sites and Studio Site, including but
not limited to an environmental audit and such soil borings as Purchaser deems
advisable, and (ii) make such investigations with regard to environmental
matters, including a Phase I site assessment of the Owned Transmitter Site
("Phase I"), as Purchaser deems advisable. The Phase I shall be conducted by an
environmental professional chosen by Purchaser and performed in accordance with
the minimum requirements for Phase I environmental audits as set forth in the
Illinois Environmental Protection Act. The results of the Phase I shall show the
absence of environmental contaminants at, on or under the Transmitter Sites and
Studio Site in accordance with all Environmental Laws, including polychlorinated
biphenols, asbestos and petroleum or fractions thereof. The Phase I may include
a minimum of three (3) soil samples taken at such intervals, locations and/or
depths as, in the judgment of the environmental professional conducting the
Phase I, are most likely to reveal the presence of environmental contaminants.
The samples shall thereafter be analyzed at a certified laboratory for the
presence of any such contaminants. Purchaser shall deliver to Seller a copy of
the results of any such Phase I. In the event that Purchaser disturbs or damages
any portion of the Owned Transmitter Site in
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connection with such inspections, Purchaser shall repair and restore such
portion, at no cost or expense to Seller, to substantially the condition
existing prior to such disturbance or damage.
5.14.9. If the result of any inspection, test, examination, verification
or investigation performed pursuant to Section 5.14.8 indicates that remediation
or other environmental clean-up is required (the "Remediation"), Purchaser, in
its sole discretion and as its sole remedy, may, upon written notice to Seller
within ten (10) business days following expiration of the Inspection Period,
terminate this Agreement, in which event neither party shall have any further
liability to the other hereunder. Notwithstanding the foregoing, Purchaser may,
in lieu of terminating this Agreement, deliver written notice to Seller prior to
the expiration of such ten (10) business day period demand that Seller perform
the Remediation at Seller's sole expense. Seller shall thereafter commence
Remediation, as soon as commercially reasonable. In the event that Remediation
is not completed on or before the Closing Date, Purchaser shall have the right,
at its option, to proceed with Closing upon Seller placing in escrow an amount
equal to One Hundred Fifty percent (150%) of the unpaid estimated cost of
Remediation to be completed. Said escrow shall be used to pay all costs of
Remediation and the balance of funds remaining in escrow at the completion of
all Remediation, if any, shall be returned to Seller.
5.15. LITIGATION.
There is no Order of any court or Governmental Authority and no action,
suit, proceeding or investigation, judicial, administrative or otherwise that is
pending or, to Seller's knowledge, threatened against or affecting the Stations.
5.16. ASSUMED CONTRACTS AND ASSUMED LEASES.
True and complete copies of all Assumed Contracts and Assumed Leases and
all modifications, amendments and renewals thereof have been furnished to
Purchaser and represent all contracts, leases, understandings and/or agreements
of Seller in conjunction with the operation of the Stations except contracts for
the sale of commercial air time. Seller is not in default in any material
respect under any of the Assumed Contracts and Assumed Leases, and, as of the
Closing Date, Seller will have paid all sums and performed in all material
respects all obligations under the Assumed Contracts and Assumed Leases which
are required to be paid or performed prior to the Closing Date. The Assumed
Contracts and Assumed Leases are in full force and effect and are valid and, to
the knowledge of Seller, enforceable in accordance with their respective terms.
5.17. PUBLIC INSPECTION FILES.
The public inspection files for the Stations are in material compliance
with the regulations of the FCC relating thereto.
5.18. BUSINESS RECORDS.
Seller has, and after the Closing, Purchaser will have, the right to use
the Business Records included in the Purchased Assets, free and clear of any
royalty or other payment obligations.
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5.19. UNION ACTIVITY.
Employees are not presently represented by and, to the knowledge of
Seller, are not seeking representation through any union or other collective
bargaining unit. Within two years of the date of this Agreement, no Action has
been filed with or filed by the National Labor Relations Board or, to Seller's
knowledge threatened.
5.20. EMPLOYEE BENEFITS.
Purchaser will have no obligation or liability due to or because of any
past service liability, vested benefits, retirement plan insolvencies or other
obligation under Law (including ERISA) resulting from the purchase of the
Stations or from former Employees becoming employees of Purchaser. Nothing
contained in this Agreement shall confer upon any Employee any right with
respect to continued employment by Purchaser, nor shall anything herein
interfere with any right Purchaser may have after the Closing Date to (i)
terminate the employment of any of the Employees at any time, with or without
cause, or (ii) establish or modify any of the terms or conditions of employment
of the Employees in the exercise of Purchaser's independent business judgment.
5.21. INTELLECTUAL PROPERTY.
Schedule 2.1.8 sets forth a true and complete list of all Stations'
Intangible Personal Property being sold to Purchaser under this Agreement. There
are no pending or, to the knowledge of Seller, threatened Actions against Seller
in respect to any Stations' Intangible Personable Property. Seller has such
ownership of or such rights by Contract in and to the Stations' Intangible
Personal Property as is necessary to use the Intangible Personal Property in the
operation of the Stations as currently being used.
5.22. INSURANCE.
Seller now has in force adequate fire and other risk insurance covering
the full replacement value of the Transmitter Sites and tangible personal
property to be transferred herein and shall cause such insurance to be
maintained in full force until the Closing Date.
5.23. ALL ASSETS.
The Purchased Assets constitute all of the assets, property and business
owned or used by Seller or in which Seller has any interest in its operation of
the Stations (other than the Excluded Assets and the facilities of the studio to
be used by Purchaser under the Studio Use License Agreement pursuant to Article
4. The Purchase Assets include all of the assets necessary to comply with the
Main Studio Rule for Station WKIF and Station WDEK.
5.24. THIRD PARTY CONSENTS.
The only consents from any Person, other than a Governmental Authority,
which are required to be obtained by Seller in connection with the execution and
delivery by Seller of this
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Agreement and the consummation of the transactions contemplated hereby are set
forth on Schedule 5.24. (the "THIRD PARTY CONSENTS").
5.25. FINDERS AND BROKERS.
No person has, as a result of any agreement entered into by Seller, any
valid claim against any of the parties hereto for a brokerage commission,
finder's fee or other like payment.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
6.1. ORGANIZATION AND GOOD STANDING.
Purchaser and each Purchaser Affiliate is a corporation duly organized,
validly existing and in good standing under the laws of the State of Illinois
and has all requisite power and authority to own and lease its properties and
carry on its business as currently conducted.
6.2. DUE AUTHORIZATION.
Subject to the FCC Assignment Order, Purchaser has full power and
authority to enter into this Agreement and to carry out Purchaser's obligations
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Purchaser and Purchaser Affiliate. This
Agreement has been duly executed and delivered by Purchaser and constitutes the
legal, valid and binding obligation of Purchaser, enforceable against it in
accordance with its respective terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally or general equitable principles.
6.3. EXECUTION AND DELIVERY.
Neither the execution and delivery by Purchaser of this Agreement nor the
consummation of the transactions contemplated hereby or thereby will: (a)
conflict with or result in a breach of the certificate of incorporation or
bylaws of Purchaser or Purchaser Affiliate; (b) subject to the FCC Assignment
Order, violate any Law or Order of any court or Governmental Authority; or (c)
violate or conflict with or constitute a default under (or give rise to any
right of termination, cancellation or acceleration under) any material
agreement, indenture, mortgage, or other instrument to which Purchaser or
Purchaser Affiliate is a party or by which it is bound or affected.
6.4. CONSENTS.
No approval, authorization, consent, order or other action of, or filing
with, any court or Governmental Authority is required in connection with the
execution and delivery by Purchaser of this Agreement or the consummation of the
transactions contemplated hereby, other than those of the FCC. No approval,
authorization or consent of any other Person is required in connection
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with the execution and delivery by Purchaser of this Agreement and the
consummation of the transactions contemplated hereby or thereby, except as may
have been previously obtained by Purchaser or Purchaser Affiliate.
6.5. FINDERS AND BROKERS.
No person has as a result of any agreement entered into by Purchaser any
valid claim against any of the parties hereto for a brokerage commission,
finder's fee or other like payment.
6.6. PURCHASER'S QUALIFICATION.
6.6.1. Purchaser and each Purchaser Affiliate is legally, financially and
otherwise qualified to be the assignee of the FCC Licenses, and no waivers shall
be required by the FCC for the consummation of the transactions contemplated
hereby or the grant of the FCC Assignment Order. To Purchaser's knowledge, there
are no facts or proceedings which would reasonably be expected (a) to disqualify
Purchaser under the Communications Act or otherwise from holding the FCC
Licenses, (b) to cause the FCC to flag the FCC Application and/or initiate a
review of the potential effects on competition and/or diversity of the
transaction, or (c) to cause the FCC not to approve the assignment of the FCC
Licenses to Purchaser.
6.6.2. To the knowledge of Purchaser, Purchaser or any Purchaser Affiliate
shall not be required to sell, dispose of or surrender any FCC license held by
Purchaser or any such Purchaser Affiliate with respect to any broadcast
properties, or any other properties or businesses of Purchaser or such Purchaser
Affiliate, as may be required under the Communications Act or the antitrust laws
in order to consummate the sale and purchase of the Purchased Assets
contemplated by this Agreement.
6.7. FINANCIAL ABILITY.
Purchaser has, and on the Closing Date will have, cash available that is
sufficient to enable Purchaser or a Purchaser Affiliate to consummate the
transactions contemplated by this Agreement.
ARTICLE 7.
CERTAIN COVENANTS AND AGREEMENTS
7.1. REGULATORY APPROVALS.
7.1.1. No later than three (3) Business Days after the date hereof, Seller
and Purchaser shall jointly cause to be filed by Seller's FCC counsel one or
more applications with the FCC requesting its consent to the assignment of the
FCC Licenses from Seller to a Purchaser Affiliate, which applications are
attached hereto at Exhibit B (the "FCC Application"). Each party shall pay its
own expenses in connection with the preparation and prosecution of the FCC
Application and shall share equally any filing fees associated with the FCC
Application.
7.1.2. Upon the terms and subject to the conditions set forth in this
Agreement, Seller and Purchaser shall each use their respective commercially
reasonable efforts to promptly (a) take, or to cause to be taken, all actions,
and to do, or to cause to be done, and to assist and
18
cooperate with the other parties in doing all things proper or advisable under
applicable Law or otherwise to consummate and make effective the transactions
contemplated by this Agreement; (b) obtain from any Governmental Authority or
other Person any actions, non-actions, clearances, waivers, consents, approvals,
permits or Orders required to be obtained by Seller, Purchaser or any of their
respective Affiliates in connection with the authorization, execution, delivery
and performance of this Agreement, the consummation of the other transactions
contemplated hereby and thereby and the assignment of the FCC Licenses from
Seller to a Purchaser Affiliate; (c) furnish all information required for any
application or other filing to be made pursuant to any applicable Law or any
applicable regulations of any Governmental Authority in connection with the
transactions contemplated by this Agreement, including filings in connection
with the FCC Application, and to supply promptly any additional information and
documentary material that may be requested in connection with such filings or
applications; (d) avoid the entry of, or have vacated or terminated, any Order
that would restrain, prevent or delay the Closing or the FCC Assignment Order,
including defending against and opposing any lawsuits or other proceedings
(including any FCC reconsideration or review), whether judicial or
administrative, reviewing or challenging this Agreement, the consummation of the
other transactions contemplated hereby and thereby or the assignment of the FCC
Licenses from Seller to a Purchaser Affiliate. No party to this Agreement shall
consent to any voluntary delay of the assignment of the FCC Licenses from Seller
to a Purchaser Affiliate or the consummation of the other transactions
contemplated hereby at the behest of any Governmental Authority or other Person
without the consent of the other party, which consent shall not be unreasonably
withheld, conditioned or delayed.
7.1.3. Notwithstanding anything in this Agreement to the contrary, if the
Closing occurs before the FCC Assignment Order becomes a Final Order, the terms
of Section 7.1.2 shall survive the Closing until the FCC Assignment Order
becomes a Final Order; provided, however that such terms shall only survive as
applied to actions relating to the obtaining of the FCC Assignment Order and
such FCC Assignment Order becoming a Final Order. No assignment of the FCC
Licenses shall occur prior to obtaining the FCC Assignment Order.
7.2. THIRD PARTY CONSENTS AND NOTICES.
7.2.1. The consummation of this Agreement is subject to and contingent
upon Seller obtaining the Third Party Consents for the Assumed Leases, which
Third Party Consents shall be substantially in the form of the Consent to
Assignment of Lease and Estoppel Agreement attached as Exhibit C hereto. As
promptly as practicable after the date of this Agreement, Seller will use its
commercially reasonable efforts to obtain all other Third Party Consents, each
of which shall be in a form reasonably satisfactory to Purchaser. None of the
Third Party Consents shall provide for any increase in cost or other change in
terms and conditions after the Closing which would be materially adverse to
Purchaser.
7.2.2. If any Third Party Consent has not been obtained prior to Closing,
and prior to Closing an Alternative Arrangement has been obtained with respect
to the Assumed Contract to which such Third Party Consent pertains (in each
case, a "Deferred Contract"), then Seller shall retain, until such time as such
Third Party Consent shall have been obtained by Seller, all rights to and
liabilities under the Deferred Contract. Until the assignment of the Deferred
Contract, (a) Seller shall continue to use commercially reasonable efforts and
Purchaser shall cooperate
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with Seller to obtain all required consents or approvals to remove any other
impediments to such assignment, and (b) Seller shall cooperate with Purchaser
(and Purchaser shall cooperate with Seller) in any lawful arrangement to provide
(to the extent permitted without breach of such Deferred Contract) that
Purchaser shall receive the benefits of such Deferred Contract after the Closing
Date to the same extent, and without any additional cost or expense to
Purchaser, as if such Deferred Contract had been assigned to Purchaser (such
arrangement, an "Alternative Arrangement"). To the extent that Purchaser
receives such benefits, Purchaser shall assume Seller's Liabilities thereunder
arising on or after the Closing Date with respect to such Alternative
Arrangement and Purchaser shall perform any such obligations of Seller arising
under such Alternative Arrangement. If, subsequent to the Closing, Seller shall
obtain all required consents or approvals required to assign any Deferred
Contract, the Deferred Contract for which consent or approval to assign has been
obtained shall at that time be deemed to be conveyed, granted, bargained, sold,
transferred, setover, assigned, released, delivered and confirmed to Purchaser
and assumed by Purchaser, without need of further action by Seller or of further
documentation except for notice from Seller to Purchaser that such consent or
approval has been obtained; and from and after the effective date such Deferred
Contract is assigned to Purchaser, (i) no party shall have any further liability
under the Alternative Arrangement related thereto, and (ii) the Deferred
Contract shall be deemed to be an Assumed Contract.
7.3. ACCESS TO INFORMATION.
From the date hereof until the Closing (upon reasonable notice to Seller),
during normal business hours, Seller shall, and shall cause its officers,
directors, employees, auditors and agents to, (a) afford the officers, employees
and authorized agents and representatives of Purchaser reasonable access to the
offices, properties, books and records of Seller to the extent related to the
Purchased Assets, and (b) furnish to the officers, employees and authorized
agents and representatives of Purchaser such additional information regarding
the Purchased Assets as Purchaser may from time to time reasonably request in
order to assist Purchaser in fulfilling its obligations under this Agreement and
to facilitate the consummation of the transactions contemplated hereby;
provided, however, that such investigation shall not unreasonably interfere with
any of the businesses or operations of Seller or any Station.
7.4. PUBLIC ANNOUNCEMENTS.
Seller and Purchaser shall consult with each other before issuing any
press release or otherwise making any public statements with respect to this
Agreement or the transactions contemplated herein and shall not issue any such
press release or make any such public statement without the prior written
consent of the other party, which shall not be unreasonably withheld; provided,
however, that a party may, without the prior written consent of the other party,
issue such press release or make such public statement as may be required by Law
or any listing agreement with a national securities exchange to which Seller or
Purchaser is a party if it has used all commercially reasonable efforts to
consult with the other party and to obtain such party's consent but has been
unable to do so in a timely manner.
7.5. ORDINARY COURSE OF BUSINESS.
7.5.1. During the period from the date hereof to the Closing Date, unless
the prior
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consent of Purchaser is first obtained, Seller shall cause the Stations to not
knowingly take any action which would cause the conditions set forth in Section
7.1 and Section 7.2 not to be satisfied as of the Closing Date.
7.5.2. Seller shall not enter into or terminate any contract in an amount
greater than $10,000 or for a term exceeding one year and to be assumed by
Purchaser or a Purchaser Affiliate, or amend any provision of any contract in an
amount greater than $10,000 or for a term exceeding one year and to be assumed
by Purchaser, whether or not in the ordinary course of business, without the
prior written consent of Purchaser, which consent will not be unreasonably
withheld.
7.5.3. In the event a Station operates with less than the maximum
effective radiated power authorized by the FCC or fails to broadcast programming
for a period of more than thirty (30) consecutive minutes, Seller shall notify
Purchaser promptly of such event and shall provide an explanation for such
reduction in operating power.
7.6. CONTROL OF THE STATION.
Prior to the Closing, Purchaser shall not, directly or indirectly,
control, supervise, direct, or attempt to control, supervise, or direct, the
operations of the Stations; such operations, including complete control and
supervision of all of the Stations programs, employees, and policies, shall be
the sole responsibility of Seller until the Closing.
7.7. RISK OF LOSS.
Seller shall bear the risk of all damage to, loss of or destruction of any
of the Purchased Assets between the date of this Agreement and the Closing Date.
If any material portion of the Purchased Assets (other than items that are
obsolete and not necessary for the continued operations of the Stations) shall
suffer any material damage or destruction prior to the Closing Date, Seller
shall promptly notify Purchaser in writing of such damage or destruction, shall
promptly take all necessary steps to restore, repair or replace such assets at
Seller's sole expense, and shall advise Purchaser in writing of the estimated
cost to complete such restoration, repair or replacement and all amounts
actually paid as of the date of the estimate. If necessary and provided that
Seller is diligently pursuing such restoration, repair or replacement, the
Closing Date shall be extended for a period not exceeding ninety (90) days to
accomplish such restoration, repair or replacement. If such restoration, repair
or replacement is not accomplished prior to the Closing Date, as the same may be
extended as provided herein, Purchaser shall have the right, at its option, to
proceed with to Closing upon Seller placing in escrow an amount equal to One
Hundred Fifty percent (150%) of the estimated cost of restoration, repair or
replacement to be completed. Said escrow shall be used to pay all costs of
restoration, repair or replacement of the Purchased Assets and the balance of
funds remaining in escrow at the completion of all restoration, repair or
replacement, if any, shall be returned to Seller.
7.8. COLLECTION OF RECEIVABLES.
Seller shall collect its own Accounts Receivable.
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7.9. EMPLOYEE RELATED MATTERS.
Purchaser and Seller agree that all Employees of Seller are the
responsibility of Seller and Purchaser shall assume no Liabilities with respect
to any Employees of Seller.
ARTICLE 8.
CONDITIONS TO PURCHASER'S CLOSING
The obligations of Purchaser to purchase the Purchased Assets and to
proceed with the Closing are subject to the satisfaction (or waiver in writing
by Purchaser) at or prior to the Closing of each of the following conditions:
8.1. REPRESENTATIONS AND WARRANTIES.
The representations and warranties of Seller contained in this Agreement
shall be true and correct as of the Closing Date with the same effect as though
made at such time (except as contemplated or permitted by this Agreement). If as
of the Closing, any of the warranties contained in this Agreement are untrue,
then upon notice to Seller given on or before the Closing, Purchaser may
terminate this Agreement, except in all cases where the failure of any
representation or warranty to be true and correct would not have a Material
Adverse Effect.
8.2. COVENANTS.
Seller shall have performed in all material respects the covenants and
agreements contained in this Agreement that are to be performed by Seller at or
prior to the Closing.
8.3. PRIMARY BROADCAST LICENSES.
The FCC primary broadcast licenses of the Stations shall contain no
adverse modifications of the terms of such authorizations as they exist as of
the date of this Agreement.
8.4. FCC ASSIGNMENT ORDER.
The FCC Assignment Order shall be in full force and effect and be a Final
Order.
8.5. FCC RENEWAL ORDERS.
The FCC Renewal Orders shall be in full force and effect and be Final
Orders.
8.6. NO ORDERS.
No Order or temporary, preliminary or permanent injunction or restraining
order shall have been entered by any Governmental Authority which expressly
prohibits or materially restrains the transactions contemplated by this
Agreement.
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8.7. THIRD PARTY CONSENTS.
All Third Party Consents shall have been obtained without the imposition
of any conditions materially adverse to Purchaser; provided, that if an
Alternative Arrangement has been entered into in lieu of the receipt of any such
Third Party Consent for an Assumed Contract as contemplated by Section 7.2.2, no
consents or approvals with respect to such Assumed Contract shall be required to
be obtained under this Section 8.7.
8.8. MATERIAL ADVERSE EFFECT.
No circumstance or event causing a Material Adverse Effect shall have
occurred after the date of this Agreement which as not been cured by Seller as
of the Closing Date.
8.9. CLOSING DELIVERIES.
Purchaser shall have received the executed Ancillary Agreements and each
of the other documents or items required to be delivered to it pursuant to
Section 10.1 hereof.
8.10. TITLE TO OWNED TRANSMITTER SITE.
8.10.1. Prior to the Closing Date, Purchaser shall obtain a current
commitment for title insurance dated on or after the date hereof in the amount
of the Purchase Price issued by Chicago Title Insurance Company (the "TITLE
INSURER" showing title to the Owned Transmitter Site in Seller, and subject only
to the Permitted Exceptions, with extended coverage over the general exceptions
contained in such commitment, and with a survey, contiguity (if applicable),
separate tax parcel, acreage and such other endorsements as Purchaser deems
necessary (the "TITLE COMMITMENT"). If a separate price has not been allocated
to the Owned Transmitter Site within such thirty (30) day period, the Seller
shall have the Title Commitment updated with the correct Purchase Price for the
Owned Transmitter Site at the time such allocation is made, in accordance with
Section 3.5.1 hereof. The Title Commitment shall be evidence of title as therein
shown as to all matters insured by the owner's title insurance policy. All
costs, fees and premiums for said title insurance required in this Section
8.10.1 shall be the liability of the Purchaser.
8.10.2. If the Title Commitment discloses liens, encumbrances, exceptions
or defects in title other than the Permitted Exceptions ("UNPERMITTED
EXCEPTIONS") the Seller, at the Seller's sole expense shall have until:
(a) fifteen (15) days prior to the Closing Date to cause the Title
Insurer to waive the Unpermitted Exceptions off of the Title Commitment or
commit to insure for the full amount of title insurance requested, against
loss or damage that may be occasioned by the Unpermitted Exceptions, and
give notice of same to the Purchaser; and/or
(b) the Closing to cure or remove the Unpermitted Exceptions from
the land title or other public records by payment of money or otherwise
and give notice of same to the Purchaser.
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If the Seller fails to have the Title Insurer waive the Unpermitted Exceptions
off of the Title Commitment or have a commitment from the Title Insurer for
insurance over the Unpermitted Exceptions issued and give notice thereof to the
Purchaser, or cure or remove from the public record(s) the Unpermitted
Exceptions by payment of money or otherwise and give notice of same to the
Purchaser, within such specified times, so that the title insurance is subject
only to the Permitted Exceptions, then the Purchaser may terminate this
Agreement or elect upon notice given to the Seller on or before the Closing to
take title to the Owned Transmitter Site as it is then, with the right to deduct
from and set off and credit against the Purchase Price the amount or value of
any such of the Unpermitted Exceptions. If the Purchaser does not so elect and
give notice, this Agreement shall terminate.
8.11. POSSESSION.
The Seller shall deliver or cause to be delivered to the Purchaser as of
the Closing full, unencumbered, complete and unrestricted physical possession,
occupancy, use, control and quiet and peaceable enjoyment of the Owned
Transmitter Site. If the Seller does not perform pursuant to this Section 8.11,
then upon notice to the Seller given on the Closing, the Purchaser may terminate
this Agreement.
8.12. DAMAGE TO OR CONDEMNATION OF THE OWNED TRANSMITTER SITE.
If at any time prior to the Closing all or any portion of the improvements
on the Owned Transmitter Site are destroyed or damaged as a result of fire or
any cause whatsoever, or if any eminent domain or condemnation proceedings are
threatened or initiated or notice of the initiation of any such eminent domain
or condemnation proceedings is received by the Seller, the Seller shall promptly
give notice thereof to the Purchaser. All risk of condemnation or loss to the
Owned Transmitter Site by governmental taking or exercise of power of eminent
domain and all risk of loss, damage, or destruction to the Owned Transmitter
Site by fire or otherwise, prior to the Closing, shall be on and belong to the
Seller. If, prior to the Closing, all or a portion of the Owned Transmitter Site
is subjected to a bona fide threat or notification of condemnation, taking or
exercise of power of eminent domain by any government, quasi-government, public
utility or other entity having such power or is taken by eminent domain or
condemnation (or sale in lieu thereof), or all or any portion of the Owned
Transmitter Site is damaged or destroyed by fire, wind, storm, hail, explosion,
or other casualty or cause whatsoever, then the Purchaser may terminate this
Agreement.
8.13 Seller shall have obtained the written consent of the landlord agreeing to
Purchaser's occupation and use of the studio located at 000 X. Xxxxxxxx Xxxxxx,
Xxxxxxx, XX (leased by Seller for the operation of Stations WKIE, WKIF and WDKR.
ARTICLE 9.
CONDITIONS TO SELLER'S CLOSING
The obligations of Seller to sell, transfer, convey and deliver the
Purchased Assets and to proceed with the Closing are subject to the satisfaction
(or waiver in writing by Seller) at or prior to the Closing of the following
conditions:
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9.1. REPRESENTATIONS AND WARRANTIES.
The representations and warranties of Purchaser contained in this
Agreement shall be true and correct as of the Closing Date with the same effect
as though made at such time (except as contemplated or permitted by this
Agreement), except in all cases where the failure of any representation or
warranty to be true and correct would not prevent Purchaser from consummating
this Agreement.
9.2. COVENANTS.
Purchaser shall have performed the covenants and agreements contained in
this Agreement that are to be performed by Purchaser as of the Closing, except
in all cases where the failure to perform such covenants and agreements would
not prevent Purchaser from consummating this Agreement.
9.3. FCC ASSIGNMENT ORDER.
The FCC Assignment Order shall be in full force and effect and be a Final
Order.
9.4. FCC RENEWAL ORDERS.
The FCC Renewal Orders shall be in full force and effect and be Final
Orders.
9.5. NO ORDERS.
No Order or temporary, preliminary or permanent injunction or restraining
order shall have been entered by any Governmental Authority which expressly
prohibits or materially restrains the transactions contemplated by this
Agreement.
9.6. CLOSING DELIVERIES.
Seller shall have received the executed Ancillary Agreements and each of
the other documents or items required to be delivered to it pursuant to Section
10.2 hereof.
ARTICLE 10.
DOCUMENTS TO BE DELIVERED AT CLOSING
10.1. DELIVERY BY SELLER.
At the Closing, Seller shall deliver to Purchaser the following:
10.1.1. Executed counterparts of the Ancillary Agreements and each of the
other documents or items required to be delivered to Purchaser.
10.1.2. The Business Records.
10.1.3. Executed Third Party Consents.
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10.1.4. Executed counterpart of the joint instructions to Escrow Agent.
10.1.5. All documents, if any, required by law or the Title Insurer for
consummating the purchase and sale of the Owned Transmitter Site.
10.1.6. All applicable real estate transfer tax declarations or affidavits
related to the purchase and sale of the Owned Transmitter Site, as required by
law.
10.1.7. All keys and other means of access to the Owned Transmitter Site,
all books and records of the Owned Transmitter Site, and all other indicia of
ownership of the Owned Transmitter Site.
10.1.8. Completed and executed Non-Foreign Person Affidavit for purposes
of complying with the documentation and evidentiary standards of the Foreign
Investment in Real Property Tax Act, IRC Section 1445, as amended, and the
regulations thereunder and establishing that the Seller is not a "foreign
person" (as defined therein).
10.1.9. Such other instruments and documents as may be reasonably
requested by Purchaser to effectuate the transaction contemplated herein.
10.2. DELIVERY BY PURCHASER.
At the Closing, Purchaser shall deliver to Seller the following:
10.2.1. The Purchase Price in the amount and manner set forth in Section
3.1.
10.2.2. Executed counterparts of the Ancillary Agreements and each of the
other documents or items required to be delivered to Seller.
10.2.3. Executed counterpart of the joint instructions to Escrow Agent.
10.2.4. Such other instruments and documents as may reasonably requested
by Seller to effectuate the transactions contemplated hereby.
ARTICLE 11.
TERMINATION
11.1. TERMINATION.
This Agreement may be terminated by the mutual written agreement of
Purchaser and Seller, or, if the terminating party is not then in material
breach of its obligations hereunder, upon written notice as follows:
11.1.1. by Purchaser if Seller is in material breach of its obligations
hereunder, such that the conditions set forth in Section 8.1 and Section 8.2
would not be satisfied as of the Closing, and such breach has not been cured by
Seller within thirty (30) days of written notice of such breach (or such longer
period of time if the breach cannot be reasonably cured within thirty (30) days
and Seller is diligently attempting to cure such breach);
26
11.1.2. by Seller if Purchaser is in material breach of its obligations
hereunder, such that the conditions set forth in Section 9.1 and Section 9.2
would not be satisfied as of the Closing, and such breach has not been cured by
Purchaser within thirty (30) days of written notice of such breach (or such
longer period of time if the breach cannot be reasonably cured within thirty
(30) days and Purchaser is diligently attempting to cure such breach);
11.1.3. by either Purchaser or Seller if the FCC denies the FCC
Application in an order that has become a Final Order, or has designated the FCC
Application for a hearing; or
11.1.4. by either Purchaser or Seller if the Closing has not occurred on
or before such date which is twelve (12) months after the date of this Agreement
(the "Termination Date").
11.2. EFFECT OF TERMINATION.
In the event of termination of this Agreement pursuant to Section 11.1
above, all rights and obligations of the parties under this Agreement shall
terminate without any liability of any party to any other party (except for any
liability of any party for any material breach of this Agreement, in which case
any non-breaching party shall have all rights and remedies available at law or
in equity). In the event of such termination, the Escrow Deposit shall be
returned to Purchaser. Notwithstanding anything to the contrary contained
herein, the provisions of Section 14.4 shall expressly survive the termination
of this Agreement.
ARTICLE 12.
DISBURSEMENT OF DEPOSIT
12.1. FAILURE TO CLOSE WITHOUT FAULT.
In the event that (i) each of the parties hereto shall have satisfied in
full all of the obligations of such party under this Agreement which were to
have been satisfied by such party prior to the Closing Date and shall not have
breached in any material respect any representation, warranty, covenant or
agreement of such party contained in this Agreement, but (ii) the closing shall
nevertheless fail to take place (without any fault on the part of any party)
prior to the Termination Date because one or more conditions to the closing in
Article 8 and Article 9 hereof shall not have been satisfied or waived, and this
Agreement has been terminated, the Deposit, together with any interest earned
thereon, shall be returned to Purchaser.
12.2. DISBURSEMENT OF DEPOSIT TO SELLER.
If the conditions to closing specified in Article 8 and Article 9 hereof
shall have been satisfied and either (i) Purchaser shall default in the
performance of any of its material obligations or materially breach any of its
representations, warranties, covenants or agreements hereunder and Seller shall
have performed all of its material obligations and shall not have materially
breached any of its representations, warranties, covenants or agreements
hereunder, or (ii) (1) pursuant to the terms of this Agreement, Purchaser shall
be obligated to purchase the Stations Assets, (2) Seller shall have duly
satisfied each of the conditions of Article 9 above to be satisfied by it (or,
in the case of any such condition which is to be satisfied at the Closing, shall
have demonstrated a willingness and ability to satisfy such condition in the
event the
27
Closing were to take place), except to the extent that any failure to satisfy
such condition was caused in any material respect by Purchaser, and (3)
Purchaser shall nevertheless fail to purchase the Stations Assets in accordance
herewith, in the event Seller terminates this Agreement, the Deposit, together
with any interest earned thereon, shall be disbursed to Seller as liquidated
damages in accordance with the terms of the Escrow Agreement. The parties agree
that such disbursement of the Deposit is not a penalty and is a reasonable
estimation of damages actually incurred.
12.3. RETURN OF DEPOSIT TO PURCHASER.
If the conditions to closing specified in Article 8 and Article 9 hereof
shall have been satisfied and either (i) Seller shall default in the performance
of its material obligations or materially breach any of its representations,
warranties, covenants or agreements hereunder and Purchaser shall have performed
all of its material obligations and shall not have materially breached any of
its representations, warranties, covenants or agreements hereunder, or (ii) (1)
pursuant to the terms of this Agreement, Seller shall be obligated to sell the
assets and properties hereunder to Purchaser, (2) Purchaser shall have duly
satisfied each of the conditions of Article 8 above to be satisfied by it (or,
in the case of any such condition which is to be satisfied at the closing, shall
have demonstrated a willingness and ability to satisfy such condition in the
event the closing were to take place), except to the extent that any failure to
satisfy such condition was caused in any material respect by Seller, and (3)
Seller shall nevertheless fail to sell the assets and properties to Purchaser in
accordance herewith, in the event Purchaser terminates this Agreement, the
Deposit, together with any interest earned thereon, shall forthwith be returned
to Purchaser.
12.4. MUTUAL AGREEMENT.
In the event this Agreement is terminated by mutual agreement of Seller
and Purchaser, the Deposit, together with any interest earned thereon, shall be
delivered in accordance with the mutual agreement of the parties.
ARTICLE 13.
RIGHTS OF INDEMNIFICATION; DEFAULT
13.1. SELLER'S INDEMNIFICATION OF PURCHASER.
13.1.1. It is understood and agreed that Purchaser does not assume, and
shall not be obligated to pay, any Liabilities of Seller under the terms of this
Agreement or otherwise and shall not be obligated to perform any obligations of
Seller of any kind or manner except the Assumed Contracts. Seller hereby agrees
to indemnify and hold Purchaser, its successors and assigns, harmless from and
against: (i) actions and Liabilities arising from the operation of the Stations
prior to the Closing Date, including Actions and Liabilities arising or required
to be performed prior to the Closing Date under any Contract assumed by
Purchaser hereunder; (ii) any and all Losses resulting from a material
misrepresentation, breach of warranty or nonfulfillment of a Contract on the
part of Seller under this Agreement, arising out of events occurring prior to
the Closing Date, or from a material misrepresentation in or omission from any
certificate, Ancillary Agreement or other instrument furnished to Purchaser
pursuant to this
28
Agreement, or in connection with any of the transactions contemplated hereby;
and (iii) any and all Losses, including reasonable attorneys' fees, incurred by
Purchaser as a result of Seller's failure or refusal to compromise or defend any
Action incident to the foregoing provisions.
Notwithstanding the foregoing, Seller shall not be required to indemnify
Purchaser under the foregoing clauses (i), (ii) or (iii) unless the aggregate
amount owed by Seller to Purchaser pursuant to the foregoing clauses (i), (ii)
and (iii) exceeds Fifty Thousand Dollars ($50,000.00), in which event Seller
shall be required to indemnify Purchaser for the entire amount owed.
13.1.2. If any Action for which Purchaser is entitled to indemnity is
asserted against Purchaser by a third party, Purchaser shall promptly give
Seller notice thereof and give Seller an opportunity to defend the same with
counsel of Seller's choice (subject to the approval of Purchaser, not to be
unreasonably withheld or delayed) at Seller's expense. Purchaser, at Seller's
expense, shall provide reasonable cooperation in connection with such defense.
In the event that Seller desires to compromise or settle any such Action,
Purchaser shall have the right to consent to such settlement or compromise;
provided, however, that if such compromise or settlement is for money damages
only and will include a full release and discharge of Purchaser, and Purchaser
withholds its consent to such compromise or settlement, Purchaser and Seller
agree that (i) Seller's liability shall be limited to the amount of the proposed
settlement and, upon payment of such sum to Purchaser, Seller shall thereupon be
relieved of any further liability with respect to such Action, and (ii) from and
after such date, Purchaser will undertake all legal costs and expenses in
connection with any such Action. If Seller fails to defend any Action within a
reasonable time, Purchaser shall be entitled to assume the defense thereof, and
Seller shall be liable to Purchaser for its expenses reasonably incurred,
including attorneys' fees and payment of any settlement amount or judgment.
13.2. PURCHASER'S INDEMNIFICATION OF SELLER.
13.2.1. Purchaser hereby agrees to indemnify and hold Seller and its
successors and assigns harmless from and against: (i) actions and Liabilities
arising from the operation of the Stations on or after the Closing Date,
including Actions arising or required to be performed on or after the Closing
Date under any Contract assumed by Purchaser hereunder; (ii) any and all Losses
resulting from a material misrepresentation, breach of warranty, nonfulfillment
of any Contract, assumed or required to be assumed by Purchaser under this
Agreement, or from a material misrepresentation in or omission from any
certificate, Ancillary Agreement or other instrument furnished to Purchaser
pursuant to this Agreement, or in connection with any of the transactions
contemplated hereby; and (iii) any and all Losses, including reasonable
attorneys' fees, incurred by Seller as the result of Purchaser's failure or
refusal to defend or compromise any Action incident to any of the foregoing
provisions.
Notwithstanding the foregoing, Purchaser shall not be required to indemnify
Seller under the foregoing clauses (i), (ii) or (iii) unless the aggregate
amount owed by Purchaser to Seller pursuant to the foregoing clauses (i), (ii)
and (iii) exceeds Fifty Thousand Dollars ($50,000.00), in which event Purchaser
shall be required to indemnify Seller for the entire amount owed.
13.2.2. If any Action covered by the foregoing indemnity is asserted
against Seller by a third party, Seller shall notify Purchaser promptly and give
Purchaser an opportunity to defend
29
the same with counsel of Purchaser's choice (subject to the approval of Seller,
not to be unreasonably withheld or delayed) at Purchaser's expense. Seller, at
Purchaser's expense, shall provide reasonable cooperation in connection with
such defense. In the event that Purchaser desires to compromise or settle any
such Action and such compromise will adversely affect Seller, Seller shall have
the right to consent to such settlement or compromise; provided, however, that
if such compromise or settlement is for money damages only and will include a
full release and discharge of Seller, and Seller withholds its consent to such
compromise or settlement, Purchaser and Seller agree that (i) Purchaser's
liability shall be limited to the amount of the proposed settlement and, upon
payment of such sum to Seller, Purchaser shall thereupon be relieved of any
further liability with respect to such Action, and (ii) from and after such
date, Seller will undertake all legal costs and expenses in connection with any
such Actions. If Purchaser fails to defend any Action within a reasonable time,
Seller shall be entitled to assume the defense thereof, and Purchaser shall be
liable to Seller for its expenses reasonably incurred, including attorneys' fees
and payment of any settlement amount or judgment.
13.3. CURE PERIOD.
In the event either party shall default in its obligations hereunder, such party
shall have a period not to exceed fifteen (15) days after notice thereof by the
other party in which to cure said default.
ARTICLE 14.
MISCELLANEOUS PROVISIONS
14.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations, warranties, covenants and agreements contained in
this Agreement shall be true and correct in all material respects on and as of
the Closing Date as though such representations, warranties, covenant and
agreements were made on and as of such time, and all such representations
warranties, covenants and agreements shall survive the Closing for a period of
eighteen (18) months from the Closing Date; provided, however, neither party
shall have any liability for a misrepresentation or breach of warranty unless
written notice of claim specifying with particularity the facts upon which such
claim is based has been given the other party within eighteen (18) months of the
Closing Date.
14.2. SPECIFIC PERFORMANCE.
Seller acknowledges that the Purchased Assets and the transactions
contemplated hereby are unique, that a failure by Seller to complete such
transactions will cause irreparable injury to Purchaser, and that actual damages
for any such failure may be difficult to ascertain and may be inadequate.
Consequently, Seller and Purchaser agree that Purchaser shall be entitled, in
the event of a default by Seller, to specific performance of any of the
provisions of this Agreement in addition to any other legal or equitable
remedies to which Purchaser may otherwise be entitled. In the event any action
is brought, the prevailing party shall be entitled to recover court costs and
reasonable attorneys' fees.
30
14.3. ADDITIONAL ACTIONS, DOCUMENTS AND INFORMATION.
Purchaser agrees that it will, at any time, prior to, at or after the
Closing Date, take or cause to be taken such further actions, and execute,
deliver and file or cause to be executed, delivered and filed such further
documents and instruments and obtain such consents, as may be reasonably
requested by Seller in connection with the consummation of the transactions
contemplated by this Agreement. Seller agrees that it will, at any time, prior
to, at or after the Closing Date, take or cause to be taken such further
actions, and execute, deliver and file or cause to be executed, delivered and
filed such further documents and instruments and obtain such consents, as may be
reasonably requested by Purchaser in connection with the consummation of the
transactions contemplated by this Agreement.
14.4. FEES AND EXPENSES.
Except as otherwise expressly provided in this Agreement, all fees and
expenses, including fees and expenses of counsel, financial advisors, and
accountants incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such fee or expense,
whether or not the Closing shall have occurred.
14.5. NOTICES.
All notices, demands, requests, or other communications which may be or
are required to be given or made by any party to any other party pursuant to
this Agreement shall be in writing and shall be hand delivered, mailed by
first-class registered or certified mail, return receipt requested, postage
prepaid, delivered by overnight air courier, or transmitted by facsimile
transmission addressed as follows:
If to Seller:
Spanish Broadcasting System, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, XX XX
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxx Xxxxxxx LLP
000 00xx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile (000) 000-0000
31
If to Purchaser:
Newsweb Corporation
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Xxxxx, COO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Holland & Knight LLP
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Hummers, Jr.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address as the addressee may indicate by written notice to the
other parties.
Each notice, demand, request, or communication which shall be given or
made in the manner described above shall be deemed sufficiently given or made
for all purposes at such time as it is delivered to the addressee (with the
return receipt, the delivery receipt, the affidavit of messenger being deemed
conclusive but not exclusive evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
14.6. WAIVER.
No delay or failure on the part of any party hereto in exercising any
right, power or privilege under this Agreement or under any other instrument or
document given in connection with or pursuant to this Agreement shall impair any
such right, power or privilege or be construed as a waiver of any default or any
acquiescence therein. No single or partial exercise of any such right, power or
privilege shall preclude the further exercise of such right, power or privilege,
or the exercise of any other right, power or privilege. No waiver shall be valid
against any party hereto unless made in writing and signed by the party against
whom enforcement of such waiver is sought and then only to the extent expressly
specified therein.
14.7. BENEFIT AND ASSIGNMENT.
14.7.1. Except as to the assignments by Purchaser to Purchaser Affiliates
(to which assignments Seller hereby consents), no party hereto shall assign this
Agreement, in whole or in part, whether by operation of law or otherwise,
without the prior written consent of the other party hereto.
14.7.2. Any purported assignment contrary to the terms hereof shall be
null, void and of no force and effect. This Agreement shall be binding upon and
shall inure to the benefit of the
32
parties hereto and their respective successors and assigns as permitted
hereunder. No Person, other than the parties hereto, is or shall be entitled to
bring any action to enforce any provision of this Agreement against any of the
parties hereto, and the covenants and agreements set forth in this Agreement
shall be solely for the benefit of, and shall be enforceable only by, the
parties hereto or their respective successors and assigns as permitted
hereunder.
14.8. ENTIRE AGREEMENT; AMENDMENT.
This Agreement and the Escrow Agreement, including the Schedules and
Exhibits hereto and thereto and the other instruments and documents referred to
herein or therein or delivered pursuant hereto or thereto contain the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior oral or written agreements, commitments or understandings
with respect to such matters. No amendment, modification or discharge of this
Agreement shall be valid or binding unless set forth in writing and duly
executed by the party or parties against whom enforcement of the amendment,
modification or discharge is sought.
14.9. SEVERABILITY.
If any part of any provision of this Agreement or any other contract,
agreement, document or writing given pursuant to or in connection with this
Agreement shall be invalid or unenforceable under applicable law, such part
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provisions or the
remaining provisions of said contract, agreement, document or writing.
14.10. HEADINGS.
The headings of the sections and subsections contained in this Agreement
are inserted for convenience only and do not form a part or affect the meaning,
construction or scope thereof.
14.11. GOVERNING LAW; JURISDICTION.
This Agreement, the rights and obligations of the parties hereto, and any
claims or disputes relating thereto, shall be governed by and construed under
and in accordance with the laws of the State of Illinois, without giving effect
to the conflicts of law principles thereof. The parties hereto hereby waive
personal service of any process in connection with any such action, suit or
proceeding and agree that the service thereof may be made by certified or
registered mail addressed to or by personal delivery to the other party, at such
other party's address set forth pursuant to Section 14.5 hereof. In the
alternative, in its discretion, any of the parties hereto may effect service
upon any other party in any other form or manner permitted by law.
14.12. SIGNATURE IN COUNTERPARTS.
This Agreement may be executed in separate counterparts, none of which
need contain the signatures of all parties, each of which shall be deemed to be
an original, and all of which taken together constitute one and the same
instrument. It shall not be necessary in making proof of this Agreement to
produce or account for more than the number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
33
IN WITNESS WHEREOF, the parties hereto have executed this Asset Purchase
Agreement as of the date first above written.
PURCHASER:
NEWSWEB CORPORATION
By: /s/ Xxxxxxx Xxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx Xxxxx
Title: Senior Vice President & Chief
Operating Officer
SELLER:
SPANISH BROADCASTING SYSTEM OF
ILLINOIS, INC.
By: /s/ Xxxx Xxxxxxx, Xx.
-----------------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: President/Chief Executive Officer
34
ANNEX I
DEFINITIONS
"ACCOUNTS RECEIVABLE" shall mean all accounts receivable with respect to
the Stations as of the end of the broadcast day immediately preceding the
Closing Date.
"ACTION" shall mean any claim, action, suit, arbitration, opposition,
inquiry, proceeding or investigation by or before any Governmental Authority.
"AFFILIATES" of a party shall mean persons or entities that directly, or
indirectly through one or more intermediaries, control or are controlled by, or
are under common control with, such party.
"AGREEMENT" shall have the meaning set forth in the Preamble.
"ALTERNATIVE ARRANGEMENT" shall have the meaning set forth in Section
7.2.2.
"ANCILLARY AGREEMENTS" shall mean, collectively, the Assignment and
Assumption of Contracts, Assignment and Assumption of Lease Agreements, Xxxx of
Sale, Warranty Deed, Escrow Agreement, Studio Use License Agreement and all
certificates executed or delivered by a Person pursuant to this Agreement and
such Agreements.
"APPRAISAL FIRM" shall have the meaning set forth in Section 3.5.1.
"ASSIGNMENT AND ASSUMPTION OF CONTRACTS" shall mean the Assignment and
Assumption of Contracts to be executed by Purchaser and Seller on the Closing
Date in substantially the form attached as Exhibit D hereto.
"ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENTS" shall mean the Assignment
and Assumption of Lease Agreements to be executed by Purchaser and Seller on the
Closing Date in substantially the form attached as Exhibit E hereto.
"ASSUMED CONTRACTS" shall have the meaning set forth in Section 2.4.
"ASSUMED LEASES" shall have the meaning set forth in Section 2.3.
"XXXX OF SALE" shall mean the Xxxx of Sale to be executed by Purchaser and
Seller on the Closing Date in substantially the form attached as Exhibit F
hereto.
"BUSINESS DAY" shall mean a day other than a Saturday, Sunday or other day
on which commercial banks in Illinois are authorized or required by law to
close.
"BUSINESS RECORDS" shall have the meaning set forth in Section 2.1.9.
"CALL LETTERS" shall have the meaning set forth in Section 2.1.8.
36
"CLOSING" shall have the meaning set forth in Section 3.3.
"CLOSING DATE" shall have the meaning set forth in Section 3.3.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, and all
Laws promulgated pursuant thereto or in connection therewith.
"COMMUNICATIONS ACT" shall mean the Communications Act of 1934, as amended
and the rules, regulations, policies and orders promulgated thereunder, as in
effect from time to time.
"CONSENT TO ASSIGNMENT OF LEASE AND ESTOPPEL AGREEMENTS" shall mean the
Consent to Assignment of Lease and Estoppel Agreements to be executed with
regard to the Leased Transmitter Sites and Studio Site substantially in the form
attached as Exhibit C.
"CONTRACT" shall mean any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument.
"CONTROL" shall mean, as to any Person, the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise. The term "CONTROLLED"
shall have a correlative meaning.
"DEFERRED CONTRACT" shall have the meaning set forth in Section 7.2.2.
"DEPOSIT" shall have the meaning set forth in Section 3.2.
"EMPLOYEE" shall mean an individual employed by Seller and primarily
engaged in the operation of a Station.
"ENVIRONMENTAL INSPECTION PERIOD" shall have the meaning set forth in
Section 5.14.8.
"ENVIRONMENTAL LAWS" shall mean the applicable provisions of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
("CERCLA"); 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act
("TSCA"), 15 U.S.C. Section 2601 et seq.; the Hazardous Materials Transportation
Act, 49 U.S.C. Section 5101 et seq.; the Resource Conservation and Recovery Act
("RCRA"), as amended by the Solid Waste Disposal Act, 42 U.S.C. Section 6901;
the Clean Water Act ("CWA"), 33 U.S.C. Section 1251 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; the Clean Air Act ("CAA"), 42 U.S.C.
Section 7401 et seq.; Section 101(14) of the Comprehensive Environmental
Response Compensation and Liability Act, 42 U.S.C. Section 9601(14); or any
other applicable federal, state, or local laws relating to Hazardous Materials
generation, production, use, storage, treatment, transportation or disposal, or
the protection of the environment.
"EQUIPMENT WARRANTIES" shall have the meaning set forth in Section 2.1.10.
37
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"ESCROW AGENT" shall have the meaning set forth in Section 3.2.
ESCROW AGREEMENT shall have the meaning set forth in Section 3.2.
"EXCLUDED ASSETS" shall have the meaning set forth in Section 2.2.
"EXCLUDED LIABILITIES" shall have the meaning set forth in Section 2.5.
"FCC" shall mean the Federal Communications Commission.
"FCC APPLICATION" shall have the meaning set forth in Section 7.1.1.
"FCC ASSIGNMENT ORDER" shall mean the FCC action (including action by the
Media Bureau pursuant to delegated authority) consenting, without any condition
materially adverse to Purchaser or Seller, to the assignment of the FCC Licenses
from Seller to the appropriate Purchaser Affiliate.
"FCC LICENSES" shall have the meaning set forth in Section 2.1.1.
"FCC RENEWAL ORDER" shall mean the FCC action or actions (including action
by the Media Bureau pursuant to delegated authority) granting the renewal of the
license of each of the Stations.
"FINAL ORDER" shall mean that the FCC Assignment Order or FCC Renewal
Order shall have become final, that is, that the time period for filing any
protests or requests or petitions for stay, reconsideration, rehearing, review
or appeal by the FCC or a court of competent jurisdiction of such order and the
time period for the FCC or its staff to have taken any actions to reconsider or
review such order shall have expired, and that no timely protest or request or
petition for stay, reconsideration, rehearing, review or appeal by the FCC or a
court of competent jurisdiction or action by the FCC or its staff to reconsider
or review such order shall be pending.
"GOVERNMENTAL AUTHORITY" shall mean any court, arbitrator, department,
commission, board, bureau, agency, authority, instrumentality or other body,
whether federal, state, municipal, foreign or other.
"HAZARDOUS MATERIALS" shall mean any wastes, substances, or materials
(whether solids, liquids or gases) that is listed, regulated or defined (a) as
Hazardous Substances, Oils, Pollutants or Contaminants in the National Oil and
Hazardous Substances Pollution Contingency Plan, 40 C.F.R. Section 300.5, or
defined as such by, or regulated as such or (b) under any Environmental Law,
including petroleum, oil or any derivative thereof, PCBs or asbestos.
"INSPECTION PERIOD" shall have the meaning set forth is Section 5.14.8.
38
"INTELLECTUAL PROPERTY" shall mean (a) all trademarks, service marks,
trade names, Internet domain names, call signs, designs, logos, slogans, jingles
and general intangibles of like kind, together with all goodwill, associated
therewith, including any registrations and/or applications relating to the
foregoing; (b) all patents and copyrights, including any registrations and/or
applications relating to either of the foregoing; (c) all Internet web sites,
content and databases; (d) all software; (e) all confidential information,
technology, know how, inventions, processes, formulae, algorithms, models and
methodologies; and (f) all Contracts with any third parties in respect of the
foregoing.
"LAW" shall mean any federal, state, local or non-United States statute,
law, ordinance, rule, regulation, code order or other requirement of law.
"LEASED TRANSMITTER SITES" shall have the meaning set forth in Section
2.1.3.
"LIABILITIES" shall mean, as to any Person, all debts, adverse claims,
liabilities and obligations, direct, indirect, absolute or contingent of such
Person, whether accrued, vested or otherwise, whether in contract, tort, strict
liability or otherwise and whether or not actually reflected, or required by
generally accepted accounting principles to be reflected, in such Person's
balance sheets or other books and records.
"LIENS" shall mean, statutory or otherwise, mortgage, liens, security
interests, claims, pledges, licenses, equities, options, conditional sales
contracts, assessments, levies, charges or encumbrances of any nature
whatsoever.
"LOSSES" shall mean any and all losses, damages, costs, costs of
enforcement, expenses, Liabilities, obligations and claims of any kind
(including any Action brought by any Governmental Authority or Person and
including reasonable attorneys' and consultants' fees and expenses and other
costs and expenses reasonably incurred in any investigation, remediation,
defense or settlement).
"MATERIAL ADVERSE EFFECT" or "MATERIAL ADVERSE EFFECT" shall mean a
material adverse effect on the Purchased Assets taken as a whole, but shall
specifically exclude any material adverse effect caused by (a) factors affecting
the radio industry generally or the market in which the Stations operate or (b)
general, national, regional or local economic or financial conditions; and
provided that none of the following shall be deemed by itself or by themselves,
either alone or in combination with one another, to constitute, create or cause
a Material Adverse Effect: (i) the failure to achieve any financial targets,
projections or milestones set forth in any Seller business plan or budget, or
(ii) liquidity or cash flow deficiencies affecting Seller's business,
properties, assets, liabilities, financial condition, results of operations,
properties or prospects.
"OFFICE EQUIPMENT" shall have the meaning set forth in Section 2.1.7.
"ORDER" shall mean any order, writ, injunction, judgment, plan or decree
of any Governmental Authority.
"OWNED TRANSMITTER SITES" shall have the meaning set forth in Section
2.1.2.
39
"PERMITTED EXCEPTIONS" shall mean (a) real estate general property (ad
valorem) taxes accrued but not due and payable as of the Closing; (b) acts and
deeds done or suffered by the Purchaser affecting the Owned Transmitter Site;
(c) utility easements of record, not restricting or interfering with the
Purchaser's intended improvement and development of the Owned Transmitter Site
and which have not been encroached upon; (d) restrictions or rights granted to
governmental authorities under applicable law to the extent not arising pursuant
to any defaults thereunder; and (e) zoning, building, or similar restrictions
relating to or affecting the Owned Transmitter Site which do not arise in
connection with a violation of applicable law and do not limit the current use
of the Owned Transmitter Site in any material respect.
"PERMITTED LIENS" shall mean (a) Liens for taxes not yet due and payable;
(b) landlord's Liens and Liens for property taxes not delinquent; (c) statutory
Liens that were created in the ordinary course of business and which are not
delinquent; (d) restrictions or rights granted to Governmental Authorities under
applicable Law to the extent not arising pursuant to any defaults thereunder;
(e) zoning, building, or similar restrictions relating to or affecting property
which do not arise in connection with a violation of applicable Law and do not
limit the current use of the property in any material respect; (f) customary
utility and similar easements affecting property; and (g) Liens for which a
proration adjustment is made pursuant to Section 3.6 of this Agreement.
"PERSON" or "PERSON" shall mean any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated organization,
other form of business or legal entity or Governmental Authority.
"PHASE I" shall have the meaning set forth in Section 5.14.8.
"PURCHASED ASSETS" shall have the meaning set forth in Section 2.1.
"PURCHASE PRICE" shall have the meaning set forth in Section 3.1.
"PURCHASER" shall have the meaning set forth in the Preamble.
"PURCHASER AFFILIATE" shall mean each Affiliate of Purchaser, as
established by Purchaser, to be the licensee of each Station.
"REMEDIATION" shall have the meaning set forth in Section 5.14.9.
"SELLER" shall have the meaning set forth in the Preamble and shall
include Seller Affiliates.
"SELLER AFFILIATES" shall have the meaning set forth in the Recitals.
"STATIONS" shall have the meaning set forth in the Recitals.
"STUDIO SITE" shall have the meaning set forth in Section 2.1.5.
40
"STUDIO USE LICENSE AGREEMENT" shall mean the Studio Use License Agreement
to be executed by Purchaser and Seller on the Closing Date in substantially the
form attached as Exhibit G hereto.
"TAXES" shall mean all federal, state and local taxes (including income,
profit, franchise, sales, use, real property, personal property, ad valorem,
excise, employment, social security and wage withholding taxes) and installments
of estimated taxes, assessments, deficiencies, levies, imports, duties, license
fees, registration fees, withholdings, or other similar charges of every kind,
character or description imposed by any Governmental Authorities.
"TERMINATION DATE" shall have the meaning set forth in Section 11.1.4.
"THIRD PARTY CONSENTS" shall have the meaning set forth in Section 5.24.
"TITLE COMMITMENT" shall have the meaning set forth in Section 8.10.
"TITLE INSURER" shall have the meaning set forth in Section 8.10.
"TRADEOUT AGREEMENT" shall mean any Contract of Seller, oral or written,
pursuant to which Seller has agreed to sell or trade commercial air time or
commercial production services of the Stations in consideration for any property
or services in lieu of or in addition to cash.
"TRANSMITTER SITES" shall have the meaning set forth in Section 2.1.3.
"UNPERMITTED EXCEPTIONS" shall have the meaning set forth in Section
8.10.2.
"WARRANTY DEED" shall mean a recordable warranty deed, in customary form,
consistent with statutory requirements, that provides for return thereof to
grantee therein after recording, free and clear of all liens, encumbrances,
exceptions and defects except and subject to only the Permitted Exceptions.
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TABLE OF CONTENTS
PAGE NOS.
ARTICLE 1. DEFINITIONS AND REFERENCES........................................... 1
ARTICLE 2. PURCHASE AND SALE.................................................... 1
2.1. PURCHASE AND SALE OF ASSETS................................. 1
2.2. EXCLUDED ASSETS............................................. 3
2.3. ASSUMED LEASES.............................................. 4
2.4. ASSUMED CONTRACTS........................................... 5
2.5. EXCLUDED LIABILITIES........................................ 5
ARTICLE 3. PURCHASE PRICE; CLOSING.............................................. 5
3.1. PURCHASE PRICE.............................................. 5
3.2. ESCROW DEPOSIT.............................................. 6
3.3. TIME OF CLOSING............................................. 6
3.4. CLOSING PROCEDURES.......................................... 6
3.5. ALLOCATION OF PURCHASE PRICE................................ 6
3.6. PRORATIONS.................................................. 7
ARTICLE 4. USE OF STUDIOS....................................................... 8
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF SELLER............................. 9
5.1. ORGANIZATION; GOOD STANDING................................. 9
5.2. PERFORMANCE OF SELLER AFFILIATES............................ 9
5.3. DUE AUTHORIZATION........................................... 9
5.4. EXECUTION AND DELIVERY...................................... 9
5.5. GOVERNMENTAL APPROVALS...................................... 10
5.6. TITLE TO PERSONAL PROPERTY.................................. 10
5.7. LEASED TRANSMITTER SITES AND STUDIO SITE.................... 10
5.8. TANGIBLE PERSONAL PROPERTY.................................. 10
5.9. FCC LICENSES................................................ 11
5.10. COMPLIANCE WITH LAW......................................... 11
5.11. REPORTS..................................................... 11
5.12. TAXES....................................................... 11
5.13. OWNED TRANSMITTER SITE...................................... 12
5.14. ENVIRONMENTAL MATTERS....................................... 13
5.15. LITIGATION.................................................. 15
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5.16. ASSUMED CONTRACTS AND ASSUMED LEASES........................ 15
5.17. PUBLIC INSPECTION FILES..................................... 15
5.18. BUSINESS RECORDS............................................ 15
5.19. UNION ACTIVITY.............................................. 16
5.20. EMPLOYEE BENEFITS........................................... 16
5.21. INTELLECTUAL PROPERTY....................................... 16
5.22. INSURANCE................................................... 16
5.23. ALL ASSETS.................................................. 16
5.24. THIRD PARTY CONSENTS........................................ 16
5.25. FINDERS AND BROKERS......................................... 17
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF PURCHASER.......................... 17
6.1. ORGANIZATION AND GOOD STANDING.............................. 17
6.2. DUE AUTHORIZATION........................................... 17
6.3. EXECUTION AND DELIVERY...................................... 17
6.4. CONSENTS.................................................... 17
6.5. FINDERS AND BROKERS......................................... 18
6.6. PURCHASER'S QUALIFICATION................................... 18
6.7. FINANCIAL ABILITY........................................... 18
ARTICLE 7. CERTAIN COVENANTS AND AGREEMENTS..................................... 18
7.1. REGULATORY APPROVALS........................................ 18
7.2. THIRD PARTY CONSENTS AND NOTICES............................ 19
7.3. ACCESS TO INFORMATION....................................... 20
7.4. PUBLIC ANNOUNCEMENTS........................................ 20
7.5. ORDINARY COURSE OF BUSINESS................................. 20
7.6. CONTROL OF THE STATION...................................... 21
7.7. RISK OF LOSS................................................ 21
7.8. COLLECTION OF RECEIVABLES................................... 21
7.9. EMPLOYEE RELATED MATTERS.................................... 22
ARTICLE 8. CONDITIONS TO PURCHASER'S CLOSING.................................... 22
8.1. REPRESENTATIONS AND WARRANTIES.............................. 22
8.2. COVENANTS................................................... 22
8.3. PRIMARY BROADCAST LICENSES.................................. 22
8.4. FCC ASSIGNMENT ORDER........................................ 22
8.5. FCC RENEWAL ORDERS.......................................... 22
8.6. NO ORDERS................................................... 22
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8.7. THIRD PARTY CONSENTS........................................ 23
8.8. MATERIAL ADVERSE EFFECT..................................... 23
8.9. CLOSING DELIVERIES.......................................... 23
8.10. TITLE TO OWNED TRANSMITTER SITE............................. 23
8.11. POSSESSION.................................................. 24
8.12. DAMAGE TO OR CONDEMNATION OF THE OWNED TRANSMITTER SITE..... 24
ARTICLE 9. CONDITIONS TO SELLER'S CLOSING....................................... 24
9.1. REPRESENTATIONS AND WARRANTIES.............................. 25
9.2. COVENANTS................................................... 25
9.3. FCC ASSIGNMENT ORDER........................................ 25
9.4. FCC RENEWAL ORDERS.......................................... 25
9.5. NO ORDERS................................................... 25
9.6. CLOSING DELIVERIES.......................................... 25
ARTICLE 10. DOCUMENTS TO BE DELIVERED AT CLOSING................................ 25
10.1. DELIVERY BY SELLER.......................................... 25
10.2. DELIVERY BY PURCHASER....................................... 26
ARTICLE 11. TERMINATION......................................................... 26
11.1. TERMINATION................................................. 26
11.2. EFFECT OF TERMINATION....................................... 27
ARTICLE 12. DISBURSEMENT OF DEPOSIT............................................. 27
12.1. FAILURE TO CLOSE WITHOUT FAULT.............................. 27
12.2. DISBURSEMENT OF DEPOSIT TO SELLER........................... 27
12.3. RETURN OF DEPOSIT TO PURCHASER.............................. 28
12.4. MUTUAL AGREEMENT............................................ 28
ARTICLE 13. RIGHTS OF INDEMNIFICATION; DEFAULT.................................. 28
13.1. SELLER'S INDEMNIFICATION OF PURCHASER....................... 28
13.2. PURCHASER'S INDEMNIFICATION OF SELLER....................... 29
13.3. CURE PERIOD................................................. 30
ARTICLE 14. MISCELLANEOUS PROVISIONS............................................ 30
14.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.................. 30
14.2. SPECIFIC PERFORMANCE........................................ 30
14.3. ADDITIONAL ACTIONS, DOCUMENTS AND INFORMATION............... 31
14.4. FEES AND EXPENSES........................................... 31
14.5. NOTICES..................................................... 31
14.6. WAIVER...................................................... 32
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14.7. BENEFIT AND ASSIGNMENT...................................... 32
14.8. ENTIRE AGREEMENT; AMENDMENT................................. 33
14.9. SEVERABILITY................................................ 33
14.10. HEADINGS.................................................... 33
14.11. GOVERNING LAW; JURISDICTION................................. 33
14.12. SIGNATURE IN COUNTERPARTS................................... 33
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