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EXHIBIT 2(a)
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered
this 9th day of July, 1999 by and between COMMONWEALTH COMMUNICATIONS, LLC., a
Delaware limited liability company ("CC Ltd"), COMMONWEALTH LICENSE SUBSIDIARY,
LLC, a Delaware limited liability company ("CLS" and with CC Ltd collectively
referred to as "Buyer") and REGENT LICENSEE OF LAKE TAHOE, INC., a Delaware
corporation ("RLT") and REGENT BROADCASTING OF LAKE TAHOE, INC. ("XXX," and with
RLT collectively referred to as "Seller"). Each reference to Buyer or Seller
herein shall mean CC Ltd and CLS, or XXX and RLT, respectively, jointly and
severally, unless the context specifies otherwise.
RECITALS
WHEREAS, Seller owns and operates radio stations KRLT-FM and KOWL-AM
licensed to South Lake Tahoe, California (together the "Stations" and each
individually, a "Station") pursuant to licenses issued by the Federal
Communications Commission ("FCC"), and
WHEREAS, Seller desires to sell, and Buyer desires to purchase, certain
assets and assume certain obligations associated with the ownership and
operation of the Stations, all on the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
PURCHASE OF ASSETS
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1.1 TRANSFER OF ASSETS. On the terms and subject to the conditions
hereof and subject to Section 1.2, on the Closing Date (as hereinafter defined),
Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer
shall purchase and assume from Seller, all of the right, title and interest of
Seller in and to all of the assets, properties, interests and rights of Seller
of whatsoever kind and nature, real and personal, tangible and intangible, owned
or leased (to the extent of Seller's leasehold interest) by Seller as the case
may be, wherever situated, which are used or held for use in the operation of
the Stations (the "Stations Assets"), including but not limited to all of
Seller's right, title and interest in and to the assets, properties, interests
and rights described in this Section 1.1:
1.1.1 all licenses, permits and other authorizations issued to
Seller by any governmental or regulatory authority including without limitation
those issued by the FCC (the licenses, permits and authorizations issued by the
FCC are hereafter referred to as the "Stations Licenses") used or useful in
connection with the operation of the Stations, including but not
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limited to those described in SCHEDULE 7.4, along with renewals or modifications
of such items between the date hereof and the Closing Date;
1.1.2 all equipment, electrical devices, antennae, cables,
tools, hardware, office furniture and fixtures, office materials and supplies,
inventory, motor vehicles, spare parts and all other tangible personal property
of every kind and description, and Seller's rights therein, owned, leased (to
the extent of Seller's leasehold interest) or held by Seller and used or held
for use in connection with the operations of the Stations, including but not
limited to those items described or listed in SCHEDULE 7.7, together with any
replacements thereof and additions thereto, made between the date hereof and the
Closing Date, and less any retirements or dispositions thereof made between the
date hereof and the Closing Date in the ordinary course of business and
consistent with past practices of Seller; provided, however, Seller agrees that
the fair market value of all such assets retired or disposed of and not replaced
with an asset of like kind and quality shall not exceed $1,000 individually or
$5,000 in the aggregate unless Seller has obtained the prior written approval of
Buyer which shall not be unreasonably withheld.
1.1.3 all time sales agreements which are in effect on the
Closing Date; all Trade Agreements (time sales agreements for consideration
other than cash) listed on SCHEDULE 7.9; all contracts, agreements, leases and
legally binding contractual rights of any kind, written or oral, relating to the
operation of the Stations and which are listed in SCHEDULE 7.8 or SCHEDULE 7.9;
and all other contracts, agreements, leases and legal binding contractual rights
entered into or acquired by Seller between the date hereof and the Closing Date
which (i) are terminable on no more than thirty (30) days notice for either no
or nominal consideration or (ii) the Buyer specifically agrees at Closing to
assume (all of the foregoing are collectively referred to herein as the
"Contracts").
1.1.4 all of Seller's rights in and to the call letters KRLT
and KOWL, as well as all of Seller's rights in and to all trademarks, trade
names, service marks, franchises, copyrights, patents, including registrations
and applications for registration of any of them, computer software programs and
programming material of whatever form or nature (to the extent transferable),
jingles, slogans, the Stations' logos and all other logos or licenses to use
same and all other intangible property rights of Seller, which are used or
useful in connection with the operation of the Stations, including but not
limited to those listed in SCHEDULE 7.12 (collectively, the "Intellectual
Property") together with any associated goodwill and any additions thereto
between the date hereof and the Closing Date;
1.1.5 all programming materials and elements of whatever form
or nature owned by Seller, whether recorded on tape or other medium or intended
for live performance, and all copyrights owned by or licensed to Seller that are
used or useful in connection with the operation of the Stations, including all
such programs, materials, elements and copyrights acquired by Seller between the
date hereof and the Closing Date;
1.1.6 all of Seller's rights in and to all the files,
documents, records, and books of account relating to the operation of the
Stations or to the Stations Assets, including, without limitation, the Stations'
local public files, programming information and studies, blueprints, technical
information and engineering data, news and advertising studies or consulting
reports,
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marketing and demographic data, sales correspondence and account files, lists of
advertisers, promotional materials, credit and sales reports and filings with
the FCC and all written contracts, whether current or expired, including without
limitation, the Contracts to be assigned hereunder, logs, books and records
relating to employees, financial, accounting and operation matters, but
excluding records relating solely to any Excluded Asset (as hereinafter
defined);
1.1.7 all of Seller's rights under manufacturers' and vendors'
warranties relating to items included in the Stations Assets and all similar
rights against third parties relating to items included in the Stations Assets;
1.1.8 the leasehold interests in the real property and
fixtures thereon described in Section 7.8;
1.1.9 all goodwill relating to the Stations;
1.1.10 all non-cash accounts receivable in respect of assumed
Trade Agreements;
1.1.11 except for Excluded Assets, such other assets,
properties, interests and rights owned by Seller that are located at the
Station's facilities and used or held for use in connection with the operation
of the Stations.
The Stations Assets shall be transferred to Buyer free and clear of all
debts, security interests, mortgages, trusts, claims, pledges or other liens,
liabilities, encumbrances or rights of third parties whatsoever
("Encumbrances"), except for Permitted Encumbrances (AS DEFINED IN SECTION 7.7)
and except as set forth in SCHEDULE 7.4, SCHEDULE 7.7 and SCHEDULE 7.8.
1.2 EXCLUDED ASSETS. Notwithstanding anything to the contrary contained
herein, it is expressly understood and agreed that the Stations Assets shall not
include the following assets along with all rights, title and interest therein
(the "Excluded Assets"):
1.2.1 all cash and cash equivalents of Seller on hand and/or
in banks, including without limitation investment securities, certificates of
deposit, commercial paper, treasury bills, marketable securities, asset or money
market accounts and all such similar accounts or investments;
1.2.2 all investment securities and accounts receivable or
notes receivable existing on the Closing Date arising from services performed by
Seller in connection with the operation of the Stations prior to the Closing
Date;
1.2.3 all property owned by Seller or any Affiliate of Seller
not located at the Stations' facilities and not used by Seller in connection
with the operation of the Stations;
1.2.4 subject to the limitation set forth in Section 1.1.2 of
this Agreement, all tangible and intangible personal property of Seller disposed
of or consumed in the ordinary course of business consistent with the past
practices of Seller between the date of this Agreement and the Closing Date;
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1.2.5 all Contracts that have terminated or expired prior to
the Closing Date in the ordinary course of business consistent with the past
practices of Seller;
1.2.6 Seller's corporate minute books and records, corporate
stock record books and such other books and records as pertain to the
organization, existence or share capitalization of Seller and duplicate copies
of such records as are necessary to enable Seller to file its tax returns and
reports, as well as any other records or materials relating to Seller generally
and not involving or relating to the Stations Assets or the operation or
operations of the Stations;
1.2.7 except as otherwise provided in Section 17.1(a),
contracts of insurance of, and any insurance proceeds or claims made by, Seller
relating to property or equipment repaired, replaced or restored by Seller prior
to the Closing Date;
1.2.8 all pension, profit sharing or cash or deferred (Section
401 (k)) plans and trusts and the assets thereof and any other employee benefit
plan or arrangement and the assets thereof, if any, maintained by Seller; and
1.2.9 any right, property or asset described in SCHEDULE
1.2.9.
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
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2.1 ASSUMPTION OF OBLIGATIONS. Subject to the provisions of this
Section 2. 1, Section 2.2 and Section 3.3, on the Closing Date, Buyer shall
assume the obligations of Seller arising or to be performed on and after the
Closing Date (except to the extent such obligations represent liabilities for
activities, events or transactions occurring, or conditions existing, on or
prior to the Closing Date) under (a) the Contracts (each an "Assumed Contract");
(b) all property taxes and other governmental charges on the Stations Assets
(only to the extent such property taxes or governmental charges are allocable to
the Stations Assets for the period after the Cut-Off Time, as hereinafter
defined) ; and (c) all vacation and other fringe benefits for Seller's employees
who are hired by Buyer (only to the extent that the vacation pay and other
fringe benefits for such employees who are hired by Buyer are allocable for the
period after the Cut-Off Time). All of the foregoing liabilities and obligations
shall be referred to herein collectively as the "Assumed Liabilities."
2.2 RETAINED LIABILITIES. Notwithstanding anything contained in this
Agreement to the contrary, Buyer expressly does not, and shall not, assume or
agree to pay, satisfy, discharge or perform and will not be deemed by virtue of
the execution and delivery of this Agreement or any agreement, instrument or
document delivered pursuant to or in connection with this Agreement or otherwise
by reason of or in connection with the consummation of the transactions
contemplated hereby or thereby, to have assumed or to have agreed to pay,
satisfy, discharge or perform, any liabilities, obligations or commitments of
Seller of any nature whatsoever whether accrued, absolute, contingent or
otherwise and whether or not disclosed to Buyer, other than the Assumed
Liabilities. Seller will retain and pay, satisfy, discharge and perform in
accordance with the terms thereof, all liabilities and obligations of the
Seller, other than the Assumed
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Liabilities, including but not limited to, the obligation to assume, perform,
satisfy or pay any liability, obligation, agreement, debt, charge, claim,
judgment or expense incurred by or asserted against Seller related to taxes,
environmental matters, stock option, pension or retirement plans or trusts,
profit-sharing plans, employment contracts, employee benefits, severance of
employees, product liability or warranty, negligence, contract breach or
default, or other obligations, claims or judgments asserted against Buyer as
successor in interest to Seller or otherwise relating to the operation of the
Stations prior to the Cut-Off Time. All of such liabilities, obligations and
commitments of Seller described in this Section 2.2 shall be referred to herein
collectively as the "Retained Liabilities."
ARTICLE 3
CONSIDERATION; ACCOUNTS RECEIVABLE
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3.1 PURCHASE PRICE. The total purchase price for the Stations Assets
shall be One Million Two Hundred Fifty Thousand Dollars ($1,250,000.00) (the
"Purchase Price")., subject to adjustment pursuant to the provisions of Sections
3.2, 3.3 and 3.4 below.
3.2 ESCROW DEPOSIT; PAYMENTS AT CLOSING. (a) Upon the execution and
delivery of this Agreement, Buyer, Seller and Security Title & Guaranty Agency,
Inc., as Escrow Agent (the " Escrow Agent"), shall enter into a Escrow Agreement
in the form of EXHIBIT A hereto (the "Escrow Agreement") pursuant to which Buyer
shall deposit the amount described below as a deposit on the amount of the
Purchase Price. Such amounts held in escrow shall be applied as set forth herein
and in the Escrow Agreement.
(b) Pursuant to the terms of the Escrow Agreement, Buyer shall
wire transfer Sixty Two Thousand Five Hundred Dollars ($62,500.00) to an escrow
account established pursuant to the Escrow Agreement (the "Escrow Deposit"). At
the Closing, the Buyer shall cause to be paid to Seller in immediately available
funds by wire transfer an amount equal to $1,187,500, plus or minus, as
applicable, any adjustments made pursuant to Section 3.3. At the Closing, all
the interest accrued on the Escrow Deposit to date shall be paid to Buyer, and
the balance (the "Post Closing Escrow") will be retained by the Escrow Agent as
security for Seller's obligations to Buyer following the Closing Date pursuant
to the terms of the Escrow Agreement. Pursuant to the Escrow Agreement, (i) 180
days following the Closing Date, $31,250 of the Post Closing Escrow together
with the earnings thereon less the amount of any then unresolved pending claims
by the Buyer shall be released from the Post Closing Escrow and paid to Seller;
and (ii) 360 days following the Closing Date, the balance of the Post Closing
Escrow together with earnings thereon less the amount of any then unresolved
pending claims by Buyer shall be released from the Post Closing Escrow and paid
to the Seller. As more fully described in the Escrow Agreement: (i) in the event
this Agreement is terminated because of Buyer's material breach of this
Agreement and all other conditions to Closing are at such time satisfied or
waived (other than such conditions as can reasonably be expected to be satisfied
by the Closing), the Escrow Deposit shall be paid to Seller as liquidated
damages as provided in Section 16.4 hereto for Buyer's material breach of this
Agreement (the payment of such sum to Seller thereby discharging in full any
liability Buyer may have to Seller), and the interest accrued on the Escrow
Deposit shall be paid to Buyer; and (ii) in the event this Agreement is
terminated under
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any circumstances other than those set forth in the immediately preceding clause
(a), the Escrow Deposit and the interest accrued thereon shall be paid or
returned to Buyer.
3.3 PRORATION OF INCOME AND EXPENSES.
3.3.1. Except as otherwise provided herein, all deposits, reserves and
prepaid and deferred income and expenses relating to the Stations Assets or the
Assumed Liabilities and arising from the conduct of the business and operations
of the Stations shall be prorated between Buyer and Seller in accordance with
generally accepted accounting principles as of 11:59 p.m. local California time,
on the date immediately preceding the Closing Date (the "CUT OFF TIME"). Such
prorations shall include, without limitation, all ad valorem, real estate,
property taxes and other governmental charges on the Stations Assets (but
excluding taxes arising by reason of the transfer of the Stations Assets as
contemplated hereby which shall be paid as set forth in Section 13.2), business
and license fees, including any FCC Regulatory Fees (and any retroactive
adjustments thereof) frequency discounts, music and other license fees
(including any retroactive adjustments thereof, which retroactive adjustments
shall not be subject to the sixty-day limitation set forth in Section 3.3.2),
utility expenses, wages, salaries, vacation and sick pay and benefits of
employees (including accruals up to the Cut Off Time for insurance premiums,
bonuses, commissions and the like and related payroll taxes), amounts due or to
become due under Contracts, any negative balances in excess of $15,000 under
Trade Agreements to be assigned and assumed hereunder, property and equipment
rentals, applicable copyright or other fees, rents, additional rents and other
items payable under lease, contract or other agreements assigned hereunder, and
similar prepaid and deferred items. Taxes to be apportioned pursuant to this
Section 3.3 shall be apportioned in proportion to (i) the number of days in the
taxable period before and including the Cut-Off Time and (ii) the number of days
in the taxable period after the Cut-Off Time. No apportionment shall be made
pursuant to this Section 3.3 of any federal, state, foreign or local income
taxes.
3.3.2 Except as otherwise provided herein, the prorations and
adjustments contemplated by this Section 3.3, to the extent practicable, shall
be made on the Closing Date. As to those prorations and adjustments not capable
of being ascertained on the Closing Date, an adjustment and proration shall be
made within sixty (60) calendar days after the Closing Date.
3.3.3 In the event of any disputes between the parties as to
such adjustments, the amounts not in dispute shall nonetheless be paid at the
time provided in Section 3.3.2 and such disputes shall be determined by an
independent certified public accountant mutually acceptable to the parties whose
determination shall be final, and the fees and expenses of such accountant shall
be paid one-half by Seller and one-half by Buyer.
3.4 ADJUSTMENT FOR REDUCTION OF REVENUE. In the event the gross revenue
of the Stations, for the twelve-month period ended most recently prior to the
Closing Date as makes such calculation practicable in time for the Closing, is
less than $748,754 then for each dollar such gross revenue is less than
$748,754, the Purchase Price shall be reduced by $1.67. On the Closing Date,
Seller shall deliver to Buyer all financial statements reflecting the Stations'
gross revenue for said twelve-month period and other information as Buyer may
reasonably request to support any adjustment, or lack of adjustment, to the
Purchase Price.
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3.5 ALLOCATION OF PURCHASE PRICE. The parties shall endeavor in good
faith to agree upon an allocation of the Purchase Price among the Stations
Assets, on or prior to the Closing Date. In the event the parties are unable to
reach agreement on such allocation, then such allocation shall be based upon an
appraisal of the Station Assets by a reputable appraiser acceptable to all of
the parties. Seller and Buyer agree to use the allocation for all tax purposes,
including without limitation, those matters subject to Section 1060 of the
Internal Revenue Code of 1986, as amended. Buyer and Seller agree to use such
allocation on completing and filing Internal Revenue Service Form 8594 for
federal income tax purposes. Buyer and Seller further agree that they shall not
take any position inconsistent with such allocation upon examination of any
return, in any refund claim, in any litigation, or otherwise.
3.6 ADJUSTMENT FOR BARTER. As of the Closing Date, Buyer shall be
entitled to a credit against the Purchase Price, for the amount, if any, by
which the aggregate net value of the Stations' Barter Payable (as defined below)
as of the Closing Date exceeds by more than $15,000 the aggregate net value of
the Stations' Barter Receivable (as defined below) as of the Closing Date.
"Barter Payable" means the aggregate value of time owed pursuant to
each of the Trade Agreements. "Barter Receivable" means the aggregate value of
goods and services to be received pursuant to each of the Trade Agreements.
3.7 ACCOUNTS RECEIVABLE. Buyer acknowledges that all accounts
receivable arising prior to the Closing Date in connection with the operation of
the Stations, including but not limited to accounts receivable for advertising
revenues for programs and announcements performed prior to the Closing Date,
shall remain the property of XXX ("Seller Accounts Receivable") and that Buyer
shall not acquire any beneficial right or interest therein or responsibility
therefor under this Agreement. For a period of ninety (90) days following the
Closing Date (the "Collection Period"), Buyer shall for no remuneration use
reasonable efforts to collect the Seller Accounts Receivable, and Buyer will
apply all such amounts collected in connection with the Seller Accounts
Receivable collected in connection with the Seller Accounts Receivable to the
debtor's oldest account receivable first, except that any such accounts
collected by Buyer who are also indebted to Buyer for programs and announcements
broadcast on any of the Stations may be applied to Buyer's account if so
directed by the debtor or under circumstances in which there is a bona fide
dispute between XXX and such account debtor with respect to such account.
Buyer's obligation and authority shall not extend to the institution of
litigation, employment of counsel or a collection agency or any other
extraordinary means of collection. Buyer agrees to reasonably cooperate with
XXX, at RBT's expense, as to any litigation or other collection efforts
instituted by XXX to collect any delinquent Seller Accounts Receivable. During
the Collection Period, neither Seller nor its agents shall make any direct
solicitation of any account debtor for collection purposes or institute
litigation for the collection of amounts due. Any amounts relating to the Seller
Accounts Receivable that are paid directly to Seller shall be retained by
Seller, but Seller shall provide Buyer with prompt notice of any such payment.
Except as otherwise provided herein, amounts collected by Buyer on account of
Seller Accounts Receivable shall be remitted in full to XXX on a monthly basis,
by the fifteenth (15) day of the month following the month for which remittance
is due. Buyer shall deliver to XXX
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an accounting showing the amount it received during each period on each account.
At the conclusion of the Collection Period and after remittance of all amounts
collected, Buyer will thereafter have no further responsibility with respect to
the collection of the Seller Accounts Receivable, and Buyer may apply all
collections received by Buyer from any party who continues business with Buyer
to obligations owing to Buyer, except for any payment received by Buyer which
such party specifies is for amounts owed to XXX, in which event such specified
amounts shall be paid over to XXX. Buyer shall not have the right to compromise,
settle or adjust the amounts of any one of the Seller Accounts Receivable
without RBT's prior written consent. XXX shall promptly pay all sales
commissions relating to all of its accounts receivable whenever XXX receives
payment thereon.
ARTICLE 4
CLOSING
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4.1 CLOSING. Except as otherwise mutually agreed upon by Buyer and
Seller, the consummation of the transactions contemplated herein (the "Closing")
shall occur within ten (10) business days after the later to occur of (a) the
satisfaction or waiver of each condition to closing contained herein, other than
such conditions as are reasonably anticipated to be satisfied at Closing
(provided that each party hereto shall use its reasonable best efforts to cause
each condition to closing to be satisfied so that the Closing may occur at the
earliest possible date); and (b) the issuance of the Final Order (as defined
below), or such other date as may be mutually agreed by the parties hereto (the
"Closing Date"); provided, however, that unless Seller's senior lenders object
Buyer may in its sole discretion waive the requirement that a Final Order be
issued and elect (subject to clause (a) above) to close at any time (upon not
less than ten (10) business days' notice to Seller) after the release of initial
FCC approval on public notice that it has consented to the transaction
contemplated hereby (the "Initial Approval"). For purposes of this Agreement,
"Final Order" means an order or grant by the FCC which is no longer subject to
appeal, reconsideration, review, petition for re-hearing, stay or judicial
action by the FCC or a court of competent jurisdiction (for which the time for
filing such appeal, petition or other action has expired or, if filed, has been
denied, dismissed or withdrawn) and pursuant to which the FCC consents, as the
case may be, to the assignments of the FCC Licenses contemplated by this
Agreement, each such order or grant being without the imposition of any
conditions materially adverse to Buyer or any Affiliate (as hereinafter defined)
of Buyer with respect to the assignment of the FCC Licenses to Buyer or the
continued operation by Buyer of the Stations or the Stations Assets. In the
event that the parties close before the Initial Approval has become a Final
Order, the parties shall enter into an Unwind Agreement mutually acceptable to
the parties and their respective senior lenders. The Closing shall be held in
the offices of Seller's counsel in Cincinnati, Ohio, or at such place and in
such manner as the parties hereto may agree.
ARTICLE 5
GOVERNMENTAL CONSENTS
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5.1 FCC CONSENT. It is specifically understood and agreed by Buyer and
Seller that the Closing and the assignment of the Stations Licenses and the
transfer of the Stations Assets are expressly conditioned on and are subject to
the prior consent and approval of the FCC
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without the imposition of any conditions materially adverse to Buyer or any
Affiliate of Buyer (the "FCC Consent").
5.2 FCC APPLICATION. Within five (5) business days after the execution
of this Agreement, CLS and RLT shall file an application with the FCC for the
FCC Consent (the "FCC Application"). CLS and RLT shall prosecute the FCC
Application with all reasonable diligence and otherwise use their best efforts
to obtain the FCC Consent as expeditiously as practicable. Neither CLS nor RLT
shall take or omit to take any action that will cause the FCC to deny, delay, or
fail to approve the application for such consents and approvals or cause such
consents and approvals not to become a Final Order.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
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Buyer hereby makes the following representations and warranties to
Seller, each of which is true and correct on the date hereof, shall survive the
Closing and shall be unaffected by any investigation heretofore or hereafter
made by Seller:
6.1 ORGANIZATION AND STANDING. Each Buyer is a limited liability
company duly organized and validly existing under the laws of the State of
Delaware.
6.2 AUTHORIZATION AND BINDING OBLIGATIONS. Each Buyer has all necessary
legal power and authority to enter into and perform this Agreement and the
transactions contemplated hereby, and to own or lease the Stations Assets and to
carry on the business of the Stations upon the consummation of the transactions
contemplated by this Agreement. Each Buyer's execution, delivery and performance
of this Agreement and the transactions contemplated hereby have been duly and
validly authorized by all necessary action on its part and, assuming the due
authorization, execution and delivery of this Agreement by Seller, this
Agreement will constitute the legal, valid and binding obligation of each Buyer,
enforceable against it in accordance with its terms, except as limited by laws
affecting creditors' rights or equitable principles generally.
6.3 QUALIFICATION AS ASSIGNEE. To the best of each Buyer's knowledge,
there are no facts which, under the Communications Act of 1934, as amended, or
the existing rules and regulations of the FCC, would disqualify CLS as an
assignee of the Stations Licenses. Buyer has, and will continue to have to the
Closing, funds committed and readily available to it sufficient to pay all
amounts due at the Closing.
6.4 ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS. Except as
set forth in Article 5 hereof with respect to governmental consents, the
execution, delivery and performance of this Agreement by Buyer: (a) do not
conflict with the provisions of the articles of organization or operating
agreement of Buyer; (b) do not require the consent of any third party; (c) will
not violate any applicable law, judgment, order, injunction, decree, rule,
regulation or ruling of any governmental authority to which Buyer or any of its
affiliates is a party; and (d) will not, either alone or with the giving of
notice or the passage of time, or both, conflict with, constitute grounds for
termination of or result in a breach of the terms, conditions or provisions of,
or
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constitute a default under, any agreement, instrument, license or permit to
which Buyer is now subject.
6.5 COMMISSIONS OR FINDER'S FEES. Neither Buyer nor any person or
entity acting on behalf of Buyer has agreed to pay a commission, finder's fee or
similar payment in connection with this Agreement or any matter related hereto
to any person or entity.
6.6 LITIGATION. Buyer is not subject to any judgment, award, order,
writ, injunction, arbitration decision or decree prohibiting the consummation of
the transactions contemplated by this Agreement, and there are no suits, legal
proceedings or investigations of any nature pending, or to the best knowledge of
Buyer, threatened against or affecting Buyer that would affect Buyer's ability
to carry out the transactions contemplated by this Agreement.
6.7 FULL DISCLOSURE. No representation or warranty made by Buyer
contained in this Agreement nor any certificate, document or other instrument
furnished or to be furnished by Buyer pursuant hereto contains or will contain
any untrue statement of a material fact, or omits or shall omit to state any
material fact required to make any statement contained herein or therein not
misleading. To the best of Buyer's knowledge, there is no impending or
contemplated event or occurrence that would cause any of the foregoing
representations not to be true and complete on the date of such event or
occurrence as if made on that date.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller makes the following representations and warranties to Buyer,
each of which is true and correct on the date hereof, shall survive the Closing
and shall be unaffected by any investigation heretofore or hereafter made by
Buyer:
7.1 ORGANIZATION AND STANDING. Each of XXX and RLT is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, XXX is authorized to conduct business within the State of
California, and each of XXX and RLT has the requisite power and authority to
own, lease and operate the Stations Assets owned or leased by it and to carry on
the business of the Stations as now being conducted by it and as proposed to be
conducted by it between the date hereof and the Closing Date.
7.2 AUTHORIZATION AND BINDING OBLIGATION. Seller has the power and
authority, and has taken all necessary and proper action to enter into and
perform this Agreement and to consummate the actions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by Seller and,
assuming the due authorization, execution and delivery of this Agreement by
Buyer, constitutes the legal, valid and binding obligation of each Seller
enforceable against it in accordance with its terms, except as limited by laws
affecting the enforcement of creditors' rights or equitable principles
generally.
7.3 ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS. Except as
set forth in Article 5 with respect to governmental consents and in SCHEDULE 7.9
with respect to required consents, the execution, delivery and performance of
this Agreement by Seller: (a) do not require
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the consent of any third party (including, without limitation, the consent of
any governmental, regulatory, administrative or similar authority); (b) will not
conflict with, result in a breach of, or constitute a violation of or default
under, the provisions of Seller's certificate of organization or bylaws, or any
applicable law, judgment, order, injunction, decree, rule, regulation or ruling
of any governmental authority to which Seller is a party or by which Seller or
any of the Stations Assets are bound; (c) will not either alone or with the
giving of notice or the passage of time, or both, conflict with, constitute
grounds for termination of or result in a breach of the terms, conditions or
provisions of, or constitute a default under, any Contract, agreement,
instrument, license or permit to which Seller or any of the Stations Assets is
now subject; and (d) will not result in the creation of any lien, charge or
encumbrance on any of the Stations Assets.
7.4 GOVERNMENT AUTHORIZATIONS.
7.4.1 SCHEDULE 7.4 hereto contains a true and complete list of
the Stations Licenses which are required for the lawful conduct of the business
and operations of the Stations in the manner and to the full extent they are
presently conducted (including, without limitation, auxiliary licenses
associated with each Station and all tower registrations), except for such
non-FCC licenses, permits and authorizations the failure of which to obtain
would not have a material adverse effect on Buyer or the Stations. Seller has
delivered to Buyer true and complete copies of the Stations Licenses listed in
SCHEDULE 7.4, including any and all amendments and other modifications thereto.
7.4.2 RLT is the authorized legal holder of the Stations Licenses.
Except as set forth SCHEDULE 7.4, none of the Stations Licenses is subject to
any restrictions or conditions which would materially limit the full operation
of the Stations as now operated.
7.4.3 Except as set forth in SCHEDULE 7.4, and except for matters
relating to FCC rules, regulations, and policies affecting the radio broadcast
industry generally, there are no complaints, petitions or proceedings pending
or, to the best of Seller's knowledge, threatened as of the date hereof before
the FCC or any other governmental or regulatory authority relating to the
business or operations of the Stations. Except as set forth on SCHEDULE 7.4,
there are no applications pending by RLT before the FCC. Except as set forth in
SCHEDULE 7.4, the Stations Licenses are in good standing, are in full force and
effect and are unimpaired by any act or omission of Seller or its directors,
officers, or employees, and the operations of the Stations are in accordance
with the Stations Licenses. Except as set forth on SCHEDULE 7.4, no proceedings
are pending or, to the best of Seller's knowledge, threatened, and to the best
of Seller's knowledge there has not been any act or omission of either Seller or
any of its directors, officers, or employees, which may result in the
revocation, modification, non-renewal or suspension of any of the Stations
Licenses, the denial of any pending applications, the issuance of any cease and
desist order, the imposition of any administrative actions by the FCC or any
other governmental or regulatory authority with respect to the Stations Licenses
or which may affect Buyer's ability to continue to operate the Stations as they
are currently operated.
7.4.4 Seller has no reason to believe that the Stations
Licenses will not be renewed in their ordinary course.
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7.4.5 All reports, forms, and statements required to be filed
by RLT with the FCC with respect to the Stations since the grant of the last
renewal of the Stations Licenses have been filed and are substantially complete
and accurate.
7.4.6 To the best knowledge of Seller, there are no facts
which, under the Communications Act of 1934, as amended, or the existing rules
and regulations of the FCC, would disqualify RLT as assignor of the Stations
Licenses or cause the Stations Licenses not to be renewed in their ordinary
course.
7.5 COMPLIANCE WITH FCC REGULATIONS. Except as specified in SCHEDULE
7.4, the operation of the Stations and all of the Stations Assets are in
compliance in all material respects with: (a) all applicable engineering
standards required to be met under applicable FCC rules; and (b) all other
applicable federal, state and local rules, regulations, requirements and
policies, including, but not limited to, equal employment opportunity policies
of the FCC, and all applicable painting and lighting requirements of the FCC and
the Federal Aviation Administration to the extent required to be met under
applicable FCC rules and regulations, and to the best of Seller's knowledge,
there are no filed claims to the contrary.
7.6 TAXES. Seller has filed all federal, state, local and foreign
income, franchise, sales, use, property, excise, payroll and other tax returns
required by law to be filed by it and has paid in full all taxes, estimated
taxes, interest, assessments, and penalties due and payable by it. All returns
and forms which have been filed have been true and correct in all material
respects and no tax or other payment in an amount other than as shown on such
returns and forms is required to be paid by Seller and has not been paid by
Seller. There are no present disputes as to taxes of any nature payable by
Seller which in any event could adversely affect any of the Stations Assets or
the operation of the Stations by Buyer. Seller has not been advised that any of
its tax returns, federal, state, local or foreign, have been or are being
audited. Seller does not and will not in the future have any liability, fixed or
contingent, for any unpaid federal, state or local taxes or other governmental
or regulatory charges whatsoever (including without limitation withholding and
payroll taxes) which could result in a lien on the Stations Assets after
conveyance thereof to Buyer or in any other form of transferee liability to
Buyer.
7.7 PERSONAL PROPERTY. Without material omission, SCHEDULE 7.7 hereto
contains a list of all items of tangible personal property owned by XXX and used
in the conduct of the business and operations of the Stations. SCHEDULE 7.7,
also separately lists without material omission all tangible personal property
leased by XXX pursuant to leases included within the Contracts. Except as
disclosed in SCHEDULE 7.7, XXX has, and following the Closing, Buyer will have,
good and marketable title to all of the items of tangible personal property
which are included in the Stations Assets (other than those subject to lease)
and, except as set forth in SCHEDULE 7.7, all of which will be paid at or prior
to Closing, none of such Stations Assets is, or at the Closing will be, subject
to any security interest, mortgage, pledge, lease, license, lien, encumbrance,
title defect or other charge, except for (a) liens for taxes not yet due and
payable, (b) easements, agreements, and restrictions of record which do not
materially detract from the existing use of the property affected or affect the
marketability of the same, (c) zoning laws and other land use restrictions that
do not impair the full use of the owned Real Estate in the same or substantially
similar manner as such is currently used, and (d) the Assumed Liabilities
(collectively,
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"Permitted Encumbrances"). The properties listed in SCHEDULE 7.7, along with
those properties subject to lease and included among the Contracts, constitute
all material tangible personal property necessary to operate the Stations as the
same are now being operated. To the best of Seller's knowledge, the Stations
Assets include all of the property rights used in the operation of the Stations
as presently conducted and are in compliance in all material respects with all
applicable laws and regulations. Except as set forth in SCHEDULE 7.7, all items
of tangible personal property included in the Stations' Assets are in good
operating condition and repair (ordinary wear and tear excepted), are free from
all material defect and damage, are suitable for the purposes for which they are
now being used, and have been maintained by Seller in a manner consistent with
generally accepted standards of customary engineering practice.
7.8 REAL PROPERTY.
7.8.1 SCHEDULE 7.8 hereto contains a complete and accurate
list and description of all real property (including without limitation, real
property relating to the towers, transmitters, studio sites and offices of the
Stations) owned or leased by XXX and used by XXX in connection with the
operations of the Stations (the "Real Estate"). The Real Estate is all of the
real property used in or necessary for the lawful operation of the Stations.
7.8.2 XXX enjoys quiet possession of all Real Estate. There
are no present disputes or claims with respect to offsets or defenses by any
party against the other under any of the Contracts relating to the leased Real
Estate. Seller has delivered to Buyer true and complete copies of all Contracts
relating to the leased Real Estate. Except as set forth in SCHEDULE 7.9 hereto,
the assignment of the Contracts relating to the leased Real Estate to Buyer will
not permit the other party to accelerate the rent, cause the terms thereof to be
renegotiated or constitute a default thereunder, and will not require the
consent of any such party to the assignment thereof to Buyer.
7.8.3 Except as described in SCHEDULE 7.8, to the best of
Seller's knowledge none of the buildings, structures, improvements or fixtures
constructed on any leased Real Estate, in connection with the operation of the
Stations, including, but not limited to, all towers, guy wires and guy anchors
and ground radials, encroach upon adjoining real property, and all such
buildings, structures, improvements and fixtures are constructed and are
operated and used in conformance with all "set back" lines, easements,
covenants, restrictions and all applicable building, fire, zoning, health and
safety laws and codes. To the best of Seller's knowledge, no utility lines
serving such leased Real Estate pass over the lands of a third party except
where appropriate easements have been obtained. To the best of Seller's
knowledge, except as described in SCHEDULE 7.8, all buildings, structures,
towers, antennae, improvements and fixtures situated on the leased Real Estate
are in good operating condition, ordinary wear and tear excepted, have no latent
structural, mechanical or other defects of material significance, are reasonably
suitable for the purposes for which they are being used and each has adequate
rights of ingress and egress, utility service for water and sewer, telephone,
electric and/or gas, and sanitary service for the conduct of the business and
operations of the Stations as presently conducted. The transmitters for the
Stations are operating in compliance with and within the parameters established
by the FCC and the Stations Licenses. To the best of Seller's knowledge, the
broadcast towers for the Stations are in compliance in all material respects
with all applicable
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laws, including without limitation, the Federal Aviation Act and all rules and
regulations promulgated thereunder. There is no pending or, to the best
knowledge of Seller, threatened condemnation or other legal proceeding or action
of any kind relating to such real property and/or title thereto. If required by
Buyer's senior lender, memoranda of leases will be recorded prior to the Closing
Date. True and correct copies of such Leases have been delivered to Buyer.
7.9 CONTRACTS. SCHEDULE 7.9 lists all Contracts to which Seller is a
party, or which are binding on Seller, as of the date of this Agreement. Those
Contracts listed on SCHEDULE 7.9, if any, requiring the consent of a third party
to assignment are identified by an asterisk in the left margin of SCHEDULE 7.9.
Those Contracts, if any, that Seller and Buyer have agreed are material to the
operation of the Stations Assets and the valid assignment of which and receipt
by Buyer of consents thereto (along with appropriate estoppel certificates for
the leases related to the leased Real Estate) is a condition to the consummation
of the transactions contemplated hereby (the "Fundamental Contracts") are
identified by an "F" in the left margin of Schedule 7.8 or 7.9.
7.10 STATUS OF CONTRACTS, ETC. Seller has delivered to Buyer true and
complete copies of all written Contracts (excluding time sales agreements) and
true and complete memoranda of all oral Contracts, including any and all
amendments and other modifications thereto. All of such Contracts are in full
force and effect and are valid, binding and enforceable in accordance with their
respective terms, except as limited by laws affecting creditors' rights or
equitable principles generally. Seller has complied in all material respects
with all Contracts and is not in default beyond any applicable grace periods
under any thereof and, to the best of Seller's knowledge, no other contracting
party is in default under any thereof.
7.11 ENVIRONMENTAL. To the best of Seller's knowledge, except as set
forth in SCHEDULE 7.11, Seller has complied with all federal, state and local
environmental laws, rules and regulations as in effect on the date hereof
applicable to each of the Stations and its operations, including but not limited
to the FCC's guidelines regarding RF radiation. To the best of Seller's
knowledge, no hazardous or toxic waste, substance, material or pollutant (as
those or similar terms are defined under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. xx.xx.
9601 ET seq., Toxic Substances Control Act. 15 U. S. C. xx.xx. 2601 et seq., the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. xx.xx. 6901 et seq. or
any other applicable federal, state and local environmental law, statute,
ordinance, order, approval, plan, authorization, policy, judgment, rule or
decree, regulation relating to the environment or the protection of human health
("Environmental Laws")), including but not limited to, any asbestos or
asbestos-related products, oils, or petroleum-derived compounds, CFCs, PCBs, or
underground storage tanks (collectively Hazardous Materials"), have been
released, emitted or discharged by Seller or any predecessor of Seller in
violation of applicable laws or regulations, or are currently located in
quantities in violation of applicable laws and regulations in, on, or under or
about the real property on which the Stations Assets are situated, including
without limitation the transmitter sites, or contained in the tangible personal
property included in the Stations Assets which were placed there by Seller or
any predecessor of Seller. To the best of Seller's knowledge, the Stations
Assets and RBT's use thereof are not in violation of any Environmental Laws or
any occupational, safety and health or other applicable law now in effect.
Nothing herein shall be interpreted to limit Buyer's right to indemnification by
Seller
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under this Agreement for noncompliance with Environmental Laws arising by reason
of acts or omissions prior to Closing.
7.12 INTELLECTUAL PROPERTY. SCHEDULE 7.12 hereto is a true and complete
list of all Intellectual Property applied for, registered or issued to, and
owned by XXX or under which XXX is a licensee and which is used in the conduct
of Seller's business and operations, except for computer software licensed for
use by the Stations. Except as set forth on SCHEDULE 7.12, to the best of
Seller's knowledge: (a) RBT's right, title and interest in the Intellectual
Property as owner or licensee, as applicable, is free and clear of all liens,
claims, encumbrances, rights, or equities whatsoever of any third party and, to
the extent any of the Intellectual Property is licensed to XXX, such interest is
valid and uncontested by the licensor thereof or any third party; (b) all
computer software located at the Stations' facilities or used in the Stations'
business or operations is properly licensed to XXX, and all of RBT's uses of
such computer software are authorized under such licenses; (c) all of RBT's
right, title and interest in and to the Intellectual Property and computer
software shall be assignable to Buyer at Closing, and upon such assignment,
Buyer shall receive complete and exclusive right, title, and interest in and to
all tangible and intangible property rights existing in the Intellectual
Property; and (d) there are no infringements or unlawful use of such
Intellectual Property by XXX in connection with RBT's business or operations.
7.13 FINANCIAL STATEMENTS. Set forth in SCHEDULE 7.13 are complete
copies of the income statements of XXX relating to the Stations for the
twelve-month period ended December 31, 1998, together with monthly income
statement for the Stations for the months of January - May, 1999 (collectively,
the "Financial Statements"). The Financial Statements were prepared in
accordance with the books and records of XXX and in accordance with generally
accepted accounting principles consistently applied and maintained throughout
the periods indicated except for the absence of footnotes and customary year-end
adjustments and as has been disclosed in SCHEDULE 7.13. In all material
respects, the Financial Statements present fairly the results of operations of
the Stations for the periods indicated.
7.14 PERSONNEL INFORMATION.
7.14.1 SCHEDULE 7.14 contains a true and complete list of all
persons employed at the Stations, including date of hire, a description of all
compensation arrangements (other than employee benefit plans set forth in
SCHEDULE 7.17) and a list of other material terms of any and all agreements
affecting such persons and their employment by XXX. As of the date of this
Agreement, Seller has received no notice that, and Seller is not aware of, any
individual employee who intends to terminate his or her employment relationship
with the Stations upon the execution of this Agreement or after the Closing.
7.14.2 Seller, with respect to the Stations, is not a party to
any contract or agreement with any labor organization, nor has Seller agreed to
recognize any union or other collective bargaining unit, nor has any union or
other collective bargaining unit been certified as representing any employees of
XXX at the Stations. Seller has no knowledge of any organization effort
currently being made or threatened by or on behalf of any labor union with
respect to employees of XXX at the Stations.
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7.14.3 To the best of Seller's knowledge, except as disclosed
in SCHEDULE 7.14, Seller, with respect to the Stations, has complied in all
material respects with all laws relating to the employment of labor, including,
without limitation, the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and those laws relating to wages, hours, collective
bargaining, unemployment insurance, workers' compensation, equal employment
opportunity and payment and withholding of taxes.
7.15 LITIGATION. Seller is not subject to any judgment, award, order,
writ, injunction, arbitration decision or decree relating to the conduct of the
business or the operation of the Stations or any of the Stations Assets, and
there is no litigation, administrative action, arbitration, proceeding or
investigation pending or, to the best knowledge of Seller, threatened against
Seller with respect to, related to or in connection with the operation of the
Stations in any federal, state or local court, or before any administrative
agency or arbitrator (including, without limitation, any proceeding which seeks
the forfeiture of, or opposes the renewal of, any of the Stations Licenses), or
before any other tribunal duly authorized to resolve disputes. In particular,
but without limiting the generality of the foregoing, to the best knowledge of
Seller, there are no applications, complaints or proceedings pending or
threatened before the FCC or any other governmental organization with respect to
the business or operations of the Stations.
7.16 COMPLIANCE WITH LAWS. (i) Seller is not in violation of, nor has
Seller received any notice asserting any non-compliance by it in connection with
the operation of the Stations or use or ownership of any of the Stations Assets
with, any applicable statute, rule or regulation, whether federal, state or
local except for any violation or non-compliance which will not result in a
material adverse effect on the Stations Assets or the operation of the Stations;
and (ii) Seller is not in default with respect to any judgment, order,
injunction or decree of any court administrative agency or other governmental
authority or any other tribunal duly authorized to resolve disputes which
relates to the transactions contemplated hereby.
7.17 EMPLOYEE BENEFIT PLANS. SCHEDULE 7.17 contains a true and complete
list as of the date of this Agreement of all employee benefit plans applicable
to the employees of XXX employed at the Stations, and a brief description
thereof. Seller does not maintain any other employee benefit plan as the term is
defined in Section 3 of the Employee Retirement Income Security Act of 1974, as
amended, applicable to the employees of XXX employed at the Stations.
7.18 COMMISSIONS OR FINDER'S FEES. Neither Seller nor any person or
entity acting on behalf of Seller has agreed to pay a commission, finder's fee
or similar payment in connection with this Agreement or any matter related
hereto to any person or entity.
7.19 CONDUCT OF BUSINESS IN ORDINARY COURSE: ADVERSE CHANGES. Since the
date Seller acquired the Stations, (a) Seller has conducted the business of the
Stations only in the ordinary course consistent with Seller's past practices;
(b) there has not been any material adverse change in the physical condition of
the tangible assets of the Stations, nor any damage, destruction, or physical
loss affecting any of the Stations Assets; and (c) Seller has not created,
assumed, or suffered any mortgage, pledge, lien or encumbrance on any of the
Stations Assets.
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7.20 INSTRUMENTS OF CONVEYANCE: GOOD TITLE. The instruments to be
executed by Seller and delivered to Buyer at the Closing, conveying the Stations
Assets to Buyer, will transfer good and marketable title to the Assets free and
clear of all liabilities (absolute or contingent), security interests,
mortgages, pledges, liens, obligations and encumbrances, except for Permitted
Encumbrances and except as set forth in SCHEDULE 7.4, SCHEDULE 7.7 and SCHEDULE
7.8 hereto and those obligations referred to in the first sentence of Section
2.1 hereof.
7.21 UNDISCLOSED LIABILITIES. Excepting only for the Assumed
Liabilities, no liability or obligation of any nature, whether accrued,
absolute, contingent or otherwise, relating to Seller, the Stations or the
Stations Assets exists which could, after discharging any indebtedness therefor
at or prior to the Closing, result in any form of transferee liability against
Buyer or subject the Stations Assets to any lien, encumbrance, claim, charge,
security interest or imposition whatsoever or otherwise affect the full, free
and unencumbered use of the Stations Assets by Buyer.
7.22 FULL DISCLOSURE. No representation or warranty made by Seller
contained in this Agreement nor any certificate, document or other instrument
furnished or to be furnished by Seller pursuant hereto contains or will contain
any untrue statement of a material fact, or omits or shall omit to state any
material fact required to make any statement contained herein or therein not
misleading. To the best of Seller's knowledge, there is no impending or
contemplated event or occurrence that would cause any of the foregoing
representations not to be true and complete on the date of such event or
occurrence as if made on that date.
Whenever in this Article 7 a warranty or representation is qualified by
a word or phrase referring to the best of Seller's knowledge (or similar terms),
it shall mean to the actual knowledge of Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxxx,
Xxxxxxx Xxxxxxxxxxxx (Seller's chief financial officer), Xxxxx Xxxxxx (Seller's
engineer), and Xxxx Xxxxxxxxxxx (Seller's General Manager).
ARTICLE 8
COVENANTS OF BUYER
------------------
8.1 CLOSING. Subject to Article 11 hereof, on the Closing Date, Buyer
shall purchase the Stations Assets from Seller as provided in Article I hereof
and shall assume the Assumed Liabilities of Seller as provided in Article 2
hereof.
8.2 NOTIFICATION. Buyer will provide Seller prompt written notice of
any change in any of the information contained in the representations and
warranties made in Article 6. Buyer shall also notify Seller of any litigation,
arbitration or administrative proceeding pending or, to its knowledge,
threatened against Buyer which challenges the transactions contemplated hereby.
8.3 NO INCONSISTENT ACTION. Buyer shall not take any action which is
materially inconsistent with its obligations under this Agreement or take any
action which would cause any representation or warranty of Buyer contained
herein to be or become false or invalid or which could hinder or delay the
consummation of the transactions contemplated by this Agreement.
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8.4 REMOVAL OF IMPEDIMENTS. Should any fact relating to Buyer which
would cause the FCC to deny its consent to the transactions contemplated by this
Agreement come to Buyer's attention, Buyer will promptly notify Seller thereof
and will use its reasonable efforts to take such steps as may be necessary to
remove any such impediment to the FCC's consent to the transactions contemplated
by this Agreement.
ARTICLE 9
COVENANTS OF SELLER
-------------------
9.1 PRE-CLOSING COVENANTS. Seller covenants and agrees with respect to
the Stations that, between the date hereof and the Closing Date or the earlier
termination of this Agreement in accordance with its terms, except as expressly
permitted by this Agreement or as otherwise consented to in writing by Buyer
(which consent shall not be unreasonably withheld or delayed) Seller shall act
in accordance with the following:
9.1.1 Seller shall conduct the business and operations of the
Stations in the ordinary course of business consistent with past practice and
with the intent of preserving the ongoing operations and assets of the Stations,
including but not limited to maintaining the independent identity of the
Stations.
9.1.2 Seller shall use its reasonable best efforts to: (i)
preserve the operation of the Stations intact; (ii) preserve the business of the
Stations' advertisers, customers, suppliers and others having business relations
with the Stations; and (iii) continue to conduct financial operations of the
Stations, including without limitation, their credit and collection and pricing
policies and practices, all in the ordinary course of business consistent with
past practices.
9.1.3 Except for conditions described in SCHEDULE 7.4, Seller
shall operate the Stations in all respects in accordance with FCC rules and
regulations and the Stations Licenses and with all other laws, regulations,
rules and orders, and shall not cause or permit by any act, or failure to act,
any of the Stations Licenses to expire, be surrendered, adversely modified, or
otherwise terminated, or the FCC to institute any proceedings for the
suspension, revocation or adverse modification of any of the Stations Licenses,
or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the
FCC to deny its consent to the transactions contemplated by this Agreement come
to Seller's attention, including the institution or written threat of any action
against the Seller involving any Station or receipt of any administrative or
court order relating to the Stations Assets or the Stations, Seller will
promptly notify Buyer thereof and will use its reasonable best efforts to take
such steps as may be necessary to remove any such impediment to the FCC's
consent to the transactions contemplated by this Agreement.
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9.1.5 Seller shall
(a) refrain from making any sale, lease, transfer or other
disposition of any of the Stations Assets having a value per item in excess of
$1,000, individually, and valued in excess of $5,000 in the aggregate, other
than in the normal course of business at fair market value in connection with
replacements of equal or greater value;
(b) refrain from modifying, amending, altering or terminating
any of the Assumed Contracts or waiving any default or breach thereunder or
modifying, altering or terminating, any other right relating to or included in
the Stations Assets;
(c) maintain insurance on the Stations Assets against loss or
damage by fire and all other hazards and risks in an amount consistent with the
existing policy amounts described in SCHEDULE 9.1.5;
(d) maintain its books and records in accordance with prior
practice; maintain the Stations Assets in their present condition, ordinary wear
and tear excepted; maintain supplies of inventory and spare parts relating to
the Stations consistent with past practices; and, except as otherwise
specifically provided in this Agreement, otherwise operate the Stations in the
ordinary course in accordance with past practices;
(e) refrain from taking any action which is not in the usual
and ordinary course of business regarding the Stations Assets or which could
reasonably be expected to materially adversely affect the value of the Stations
Assets;
(f) refrain from hiring, firing, releasing or transferring any
employee of the Station identified by an asterisk on Schedule 7.14;
(g) refrain from (i) increasing the compensation payable or to
become payable to any of Seller's employees in a manner inconsistent with past
practices, or (ii) entering into any renewal or amendment of any existing
contract for the employment of any employee identified by an asterisk on
Schedule 7.14 other than in the ordinary course of business;
(h) promptly notify Buyer upon Seller's becoming aware of the
resignation or contemplated resignation of any employee identified by an
asterisk on Schedule 7.14;
(i) refrain from changing its charter in any way which would
adversely affect its corporate power or authority to enter into and perform this
Agreement or which would otherwise adversely affect its performance of this
Agreement;
(j) refrain from subjecting any of the Stations Assets to any
new or increased lien, claim, charge, or encumbrance (other than minor liens,
claims, charges or encumbrances which will not materially interfere with the
occupation, use and enjoyment by
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Buyer of the Stations Assets in the normal course of its business or impair the
value of the Stations Assets and which shall be discharged as of the Closing
Date);
(k) refrain from doing or omitting to do any act which will
cause a breach of, or default under, or termination of, any material Assumed
Contract;
(l) refrain from entering into any Trade-Out Agreement not in
effect on the date hereof and listed on SCHEDULE 7.9, having a value in excess
of $1,000, individually, or an aggregate value in excess of $5,000 (except for
Trade-Out Agreements which are fully performed by Seller prior to the Closing
Date);
(m) refrain from entering into any other contract or agreement
not in effect on the date hereof and listed on SCHEDULE 7.8 OR 7.9, except for
(i) contracts entered into in the ordinary course of business which do not
involve consideration having an aggregate value in excess of $10,000 and which
may be terminated on not more than ninety (90) day's notice without premium or
penalty and (ii) contracts for the sale of advertising time for cash entered
into in the ordinary course of business;
(n) provide to Buyer, concurrently with filing thereof, copies
of all reports to and other filings with the FCC relating to the Stations;
(o) not permit any of the Stations Licenses to expire or to be
surrendered or voluntarily modified, or take any action (or fail to take any
action) which could cause the FCC or any other governmental authority to
institute proceedings for the suspension, revocation or limitation of rights
under any Station License; or fail to prosecute with due diligence any pending
applications to any governmental authority with respect to the Stations or any
such Stations Licenses, except for proceedings affecting the radio broadcasting
industry generally;
(p) provide to Buyer, promptly upon receipt thereof by Seller,
a copy of (i) any notice from the FCC or any other governmental authority of the
revocation, suspension, or limitation of the rights under, or of any proceeding
for the revocation, suspension, or limitation of the rights under (or that such
authority may in the future, as the result of failure to comply with laws or
regulations or for any other reason, revoke, suspend or limit the rights under)
any Station License, or any other license or permit held by Seller respecting
any Station, and (ii) copies of all protests, complaints, challenges or other
documents filed with the FCC by third parties concerning any Station and,
promptly upon the filing or making thereof, copies of Seller's responses to such
filings;
(q) notify Buyer in writing immediately upon learning of the
institution or written threat of any material action against Seller involving
any Station in any court, or any action against Seller before the FCC or any
other governmental agency, and notify Buyer in writing promptly upon receipt of
any administrative or court order relating to the Stations Assets or the
Stations;
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(r) pay or cause to be paid or provided for when due (except
to the extent contested in good faith for which proper reserves shall have been
established) all income, property, use, franchise, excise, social security,
withholding, worker's compensation and unemployment insurance taxes and all
other taxes of or relating to Seller, the Stations Assets and the employees
required to be paid to city, county, state, Federal and other governmental units
up to the Closing Date;
(s) if requested by Buyer, with respect to any Assumed
Contract (other than a real property lease) which can be terminated or not
renewed by Seller in compliance with the terms thereof, notify the other parties
to such Assumed Contract that Seller elects to terminate (or, if applicable,
elects not to renew) such Assumed Contract;
(t) not change the advertising rates in effect as of the date
hereof other than in the ordinary course of business; and
(u) use its reasonable best efforts to reduce by the Closing
Date the trade payables of the Stations to less than $15,000; and
(v) within thirty (30) days following the end of each calendar
month, provide Buyer with a statement of income for each Station for such month
and for the year-to-date period then ended (including a comparison to budget).
9.1.6 Seller shall give or cause the Stations to give Buyer
and Buyer's counsel, accountants, engineers and other representatives, at
Buyer's reasonable request and upon reasonable notice, full and reasonable
access during normal business hours to all of Seller's personnel, properties,
books, Contracts, reports and records (including, without limitation, financial
information and tax returns relating to the Stations, and environmental audits
in existence with respect to the Stations Assets), real estate, buildings and
equipment relating to the Stations and to the Stations' employees, and to
furnish Buyer with information and copies of all documents and agreements
relating to the Stations and the operation thereof (including but not limited to
financial and operating data and other information concerning the financial
condition, results of operations and business of the Stations, and any
engineering materials in Seller's possession regarding the operations of the
Stations) that Buyer may reasonably request. The rights of Buyer under this
Section 9.1.6 shall not be exercised in such a manner as to interfere
unreasonably with the business of the Stations.
9.1.7 Seller shall use its reasonable best efforts to obtain
any third party consents necessary for the assignment of any Contract (which
shall not require any payment to any such third party except for such amounts
contemplated by the Contract to be assigned, and any amount then owing by Seller
to such third party).
9.2 NOTIFICATION. Seller will provide Buyer prompt written notice of
any change in any of the information contained in the representations and
warranties made in Article 7 or any Schedule. Seller agrees to notify Buyer of
any litigation, arbitration or administrative proceeding pending or, to the best
of its knowledge, threatened, which challenges the transactions contemplated
hereby. Seller shall promptly notify Buyer if any of the normal broadcast
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transmissions of any Station are interrupted, interfered with or in any way
impaired, and shall provide Buyer with prompt written notice of the problem and
the measures being taken to correct such problem.
9.3 NO INCONSISTENT ACTION. Seller shall not take any action which is
materially inconsistent with its obligations under this Agreement nor take any
action which would cause any representation or warranty of Seller contained
herein to be or become false or invalid or which could hinder or delay the
consummation of the transactions contemplated by this Agreement.
9.4 CLOSING. Subject to Article 12 hereof, on the Closing Date, Seller
shall transfer, convey, assign and deliver to Buyer the Stations Assets and the
Assumed Liabilities as provided in Articles 1 and 2 and Section 7.20 of this
Agreement.
9.5 OTHER ITEMS. Until the Closing Date or the earlier termination of
this Agreement in accordance with the terms hereof, except with Buyer's prior
written consent, Seller shall not: (a) waive or release any right relating to
the business or operations of the Stations, except for adjustments or
settlements made in the ordinary course of business consistent with its past
practices; (b) transfer or grant any rights under any of the Stations Licenses;
(c) enter into any commitment for capital expenditures for which Buyer would
become liable after the Closing Date; (d) introduce any material changes in the
broadcast hours or in the format of the Stations or any other material change in
the Station's programming policies; (e) change the call letters of any of the
Stations; and (f) enter into any transaction or make or enter into any contract
or commitment with respect to any of the Stations or the Stations Assets which
by reason of its size or otherwise is not in the ordinary course of business
consistent with past practices.
9.6 EXCLUSIVITY. Seller agrees that, commencing on the date hereof
through the Closing or earlier termination of this Agreement, Buyer shall have
the exclusive right to consummate the transactions contemplated herein, and
during such exclusive period, Seller agrees that neither Seller, nor any
director, officer, employee or other representative of Seller: (a) will
initiate, solicit or encourage, directly or indirectly, any inquiries, or the
making or implementation of any proposal or offer with respect to a merger,
acquisition, consolidation or similar transaction involving, or any purchase of,
all or any portion of the Stations Assets (any such inquiry, proposal or offer
being hereinafter referred to as an "Acquisition Proposal" and any such
transaction being hereinafter referred to as an "Acquisition"); (b) will engage
in any negotiations concerning, or provide any confidential information or data
to, or have any discussions with, any person relating to an Acquisition
Proposal, or otherwise facilitate any effort or attempt to make or implement an
Acquisition Proposal; or (c) will continue any existing activities, discussions
or negotiations with any parties conducted heretofore with respect to any
Acquisition Proposal or Acquisition and will take the necessary steps to inform
the individuals or entities referred to above of the obligations undertaken by
them in this Section 9.6. Notwithstanding the foregoing, in the event that Buyer
defaults in any material respect in the observance or in the due and timely
performance of any of its covenants or agreements herein contained and such
default shall not be cured within ten (10) business days of notice of default
served by Seller, Seller's obligations under this Section 9.6 shall be null and
void.
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9.7. NONCOMPETITION. During the period commencing on the Closing Date
through the third anniversary of the date thereof, Seller will not directly or
indirectly through one or more intermediaries, either as partner or sole
proprietor, or as an employee, agent, officer, director, shareholder or
consultant, engage in the ownership or operation of any radio station which has
its primary transmitter located anywhere within a fifty (50) mile radius of the
main post office in South Lake Tahoe, California; provided, however, this
limitation shall not prohibit Seller from engaging in the ownership or operation
of any radio station whose primary signal courage is directed to either the
Sacramento, California or Reno, Nevada broadcasting market.
ARTICLE 10
JOINT COVENANTS
---------------
Buyer and Seller each covenant and agree that between the date hereof
and the Closing Date, they shall act in accordance with the following:
10.1 CONFIDENTIALITY. Subject to the requirements of applicable law,
Buyer and Seller shall each keep confidential all information obtained by them
with respect to the other parties hereto in connection with this Agreement and
the negotiations preceding this Agreement, and will use such information solely
in connection with the transactions contemplated by this Agreement, and if the
transactions contemplated hereby are not consummated for any reason, each shall
return to each other party hereto, without retaining a copy thereof, any
schedules, documents or other written information obtained from such other party
in connection with this Agreement and the transactions contemplated hereby.
Notwithstanding the foregoing, no party shall be required to keep confidential
or return any information which: (a) is known or available through other lawful
sources, not bound by a confidentiality agreement with the disclosing party; (b)
is or becomes publicly known through no fault of the receiving party or its
agents; (c) is required to be disclosed pursuant to an order or request of a
judicial or governmental authority (provided the non-disclosing party is given
reasonable prior notice of the order or request and the purpose of the
disclosure); or (d) is developed by the receiving party independently of the
disclosure by the disclosing party. Notwithstanding anything to the contrary
herein, either party may in accordance with its legal obligations, including but
not limited to filings permitted or required by the Securities Act of 1933 and
the Securities and Exchange Act of 1934, make such press releases and other
public statements and announcements as it deems necessary and appropriate in
connection with this Agreement and the transactions contemplated hereby;
provided, however, that prior to making any such unilateral press release or
announcement, such party shall first communicate the same in writing to the
other.
10.2 COOPERATION. Subject to express limitations contained elsewhere
herein, Buyer and Seller agree to cooperate fully with one another in taking any
reasonable actions (including without limitation, reasonable actions to obtain
the required consent of any governmental instrumentality or any third party and
to permit Buyer to take such steps as it may desire to take prior to the Closing
Date to remedy those conditions described in SCHEDULE 7.4 as exceptions to
Seller's warranties and representations) necessary or helpful to accomplish the
transactions contemplated by this Agreement, including but not limited to the
satisfaction of any condition to closing set forth herein.
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10.3 CONTROL OF STATIONS. Buyer shall not, directly or indirectly,
control, supervise or direct the operations of the Stations prior to the
Closing. Such operations, including complete control and supervision of all
Station programs, employees and policies, shall be the sole responsibility of
Seller.
10.4 CONSENTS TO ASSIGNMENT. To the extent that any Contract identified
in the Schedules is not capable of being sold, assigned, transferred, delivered
or subleased without the waiver or consent of any third person (including a
government or governmental unit), or if such sale, assignment, transfer,
delivery or sublease or attempted sale, assignment, transfer, delivery or
sublease would constitute a breach thereof or a violation of any law or
regulation, this Agreement and any assignment executed pursuant hereto shall not
constitute a sale, assignment, transfer, delivery or sublease or an attempted
sale, assignment, offer, delivery or sublease thereof. Subject to the provisions
of Section 11.5 with respect to Contracts marked with an asterisk in Schedule
7.8 or 7.9, in those cases where consents, assignments, releases and/or waivers
have not been obtained at or prior to the Closing relating to the assignment to
Buyer of the non-asterisked Contracts, this Agreement and any assignment
executed pursuant hereto, to the extent permitted by law, shall constitute an
equitable assignment by Seller to Buyer of all of Seller's rights, benefits,
title and interest in and to the Contracts, and where necessary or appropriate,
Buyer shall be deemed to be Seller's agent for the purpose of completing,
fulfilling and discharging all of Seller's rights and liabilities arising after
the Closing Date under such Contracts. Seller shall use its reasonable best
efforts to provide Buyer with the financial and business benefits of such
Contracts (including, without limitation, permitting Buyer to enforce any rights
of Seller arising under such Contracts), and Buyer shall, to the extent Buyer is
provided with the benefits of such Contracts, assume, perform and in due course
pay and discharge all debts, obligations and liabilities of Seller allocable for
the period after the Cut-Off Time under such Contracts to the extent that Buyer
was to assume those obligations pursuant to the terms hereof.
10.5 FILINGS. In addition to the covenants of the parties set forth in
Article 5 hereto, as promptly as practicable after the execution of this
Agreement, Buyer and Seller shall use their reasonable best efforts to obtain,
and to cooperate with each other in obtaining, all authorizations, consents,
orders and approvals of any governmental authority that may be or become
necessary in connection with the consummation of the transactions contemplated
by this Agreement, and to take all reasonable actions to avoid the entry of any
order or decree by any governmental authority prohibiting the consummation of
the transactions contemplated hereby, including without limitation, any reports
or notifications that may be required to be filed with the FCC, and each shall
furnish to one another all such information in its possession as may be
necessary for the completion of the reports or notifications to be filed by the
other.
10.6 BULK SALES LAWS. Buyer hereby waives compliance by Seller with the
provisions of the "bulk sales" or similar laws of any state. Seller agrees to
indemnify Buyer and hold it harmless from any and all loss, cost, damage and
expense (including but not limited to, reasonable attorney's fees) sustained by
Buyer as a result of any failure of Seller to comply with any "bulk sales" or
similar laws.
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10.7 EMPLOYEE MATTERS. XXX shall be responsible for the payment of all
compensation and accrued employee benefits payable to all employees up to the
Closing Date. XXX acknowledges and agrees that it, and not Buyer, is and shall
be solely responsible for any and all insurance, supplemental pension, deferred
compensation, retirement and any other benefits, and related costs, premiums and
claims, due, to become due, committed or otherwise promised to any person who,
as of the Closing Date is a retiree, former employee, or current employee of
XXX, relating to the period up to the Closing Date. Buyer, as a purchaser of the
Stations Assets, shall assume no employee benefit plans, programs or practices,
whether or not set forth in writing, maintained by Seller at any time.
ARTICLE 11
CONDITIONS OF CLOSING BY BUYER
------------------------------
The obligations of Buyer hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
11.1 REPRESENTATIONS, WARRANTIES AND COVENANTS.
11.1.1 All representations and warranties of Seller made in
this Agreement or in any Exhibit, Schedule or document delivered pursuant
hereto, shall be true and complete in all material respects as of the date
hereof and on and as of the Closing Date as if made on and as of that date,
except for changes expressly permitted or contemplated by the terms of this
Agreement.
11.1.2 All of the terms, covenants and conditions set forth in
this Agreement to be complied with and performed by Seller on or prior to the
Closing Date shall have been complied with or performed in all material
respects.
11.1.3 Buyer shall have received a certificate, dated as of
the Closing Date, from Seller, executed by an officer of Seller to the effect
that: (a) the representations and warranties of Seller contained in this
Agreement are true and complete in all material respects on and as of the
Closing Date as if made on and as of that date, except for changes expressly
permitted or contemplated by the terms of this Agreement; and (b) Seller has
complied with or performed in all material respects all terms, covenants and
conditions set forth in this Agreement to be complied with or performed by it on
or prior to the Closing Date.
11.2 GOVERNMENTAL CONSENTS. The FCC Final Approval shall have
been obtained.
11.3 GOVERNMENTAL AUTHORIZATIONS. RLT shall be the holder of the
Stations Licenses and there shall not have been any modification of any of such
Licenses which has a material adverse effect on any of the Stations or the
operations thereof. No application shall be pending for the renewal of any of
the Stations Licenses. No proceeding shall be pending which seeks, or the effect
of which reasonably could be, to revoke, cancel, fail to renew, suspend or
adversely modify any of the Stations Licenses.
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11.4 ADVERSE PROCEEDINGS. No suit, action, claim or governmental
proceeding shall be pending or threatened in writing against, and no order,
decree or judgment of any court, agency or other governmental authority shall
have been rendered (and remain in effect) against, any party hereto which: (a)
would render it unlawful, as of the Closing Date, to effect the transactions
contemplated by this Agreement in accordance with its terms; (b) questions the
validity or legality of any transaction contemplated hereby; (c) seeks to enjoin
any transaction contemplated hereby; (d) seeks material damages on account of
the consummation of any transaction contemplated hereby; or (e) is a petition of
bankruptcy by or against Seller, an assignment by Seller for the benefit of its
creditors, or other similar proceeding.
11.5 THIRD-PARTY CONSENTS. All Fundamental and other material Contracts
shall be in full force and effect on the Closing Date, and Seller shall have
obtained and shall have delivered to Buyer all appropriate third-party consents
in form and substance acceptable to Buyer (including estoppel certificates for
the leases related to the Leased Real Estate) in connection with the assignment
of the Fundamental Contracts to Buyer.
11.6 CLOSING DOCUMENTS. Seller shall have delivered or caused to be
delivered to Buyer, on the Closing Date, all bills of sale, general warranty
deeds, endorsements, assignments and other instruments of conveyance reasonably
satisfactory in form and substance to Buyer, effecting the sale, transfer,
assignment and conveyance of the Stations Assets to Buyer, including, without
limitation, each of the documents required to be delivered by it pursuant to
Article 14.
11.7 NO ADVERSE CHANGE IN PHYSICAL CONDITION OF TANGIBLE ASSETS. No
material adverse change in physical condition of any of the tangible assets
included in the Station Assets, which change is caused by or arises out of any
breach by Seller of any of its representations, warranties, covenants or
agreements hereunder shall have occurred.
11.8 SURVEYS AND ENVIRONMENTAL STUDIES. Buyer shall have obtained at
Buyer's cost and expense within sixty (60) days following the date of this
Agreement surveys and Phase I environmental assessment reports with respect to
the Real Estate confirming in all material respects the representations and
warranties of Seller with respect to the Real Estate on matters which are
ascertainable from a survey thereof (the "Surveys") and with respect to
environmental matters ("Phase I Reports"); provided, however, if Buyer elects
not obtain such Surveys (or if it is impracticable under existing conditions for
such Surveys to be obtained) and/or Phase I Reports on all or any of the Real
Estate, as to such Real Estate, Buyer shall be deemed to have waived this
condition. The Seller shall be listed among the parties who are to receive a
reliance letter upon the Phase I Reports. If the Surveys or Phase I Reports
disclose any condition which is materially inconsistent with the representations
and warranties of Seller, and such is capable of being cured by Seller, Seller
shall have the options to cause the same to be cured or remediated at Seller's
expense prior to the Closing Date or to reduce the Purchase Price by the costs
to cure or remediate such condition in which event Buyer shall acquire Seller's
interest in the Real Estate subject to such condition. In the event Seller
selects neither option, either Buyer or Seller may terminate this Agreement, in
which event the Escrow Deposit shall be returned to Buyer.
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ARTICLE 12
CONDITIONS OF CLOSING BY SELLER
-------------------------------
The obligations of Seller hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
12.1 REPRESENTATIONS, WARRANTIES AND COVENANTS.
12.1.1 All representations and warranties of Buyer made in
this Agreement or in any Exhibit, Schedule or document delivered pursuant
hereto, shall be true and complete in all material respects as of the date
hereof and on and as of the Closing Date as if made on and as of that date,
except for changes expressly permitted or contemplated by the terms of this
Agreement.
12.1.2 All the terms, covenants and conditions set forth in
this Agreement to be complied with and performed by Buyer on or prior to the
Closing Date shall have been complied with or performed in all material
respects.
12.1.3 Seller shall have received a certificate, dated as of
the Closing Date, executed by an officer of Buyer, to the effect that: (a) the
representations and warranties of Buyer contained in this Agreement are true and
complete in all material respects on and as of the Closing Date as if made on
and as of that date; and (b) Buyer has complied with or performed in all
material respects all terms, covenants and conditions to be complied with or
performed by it on or prior to the Closing Date.
12.2 GOVERNMENTAL CONSENTS. The FCC Initial Approval shall
have been obtained.
12.3 ADVERSE PROCEEDINGS. No suit, action, claim or governmental
proceeding shall be pending or threatened in writing against, and no other
decree or judgment of any court, agency or other governmental authority shall
have been rendered (and remain in effect) against, any party hereto which: (a)
would render it unlawful, as of the Closing Date, to effect the transactions
contemplated by this Agreement in accordance with its terms; (b) questions the
validity or legality of any transaction contemplated hereby; (c) seeks to enjoin
any transaction contemplated hereby; or (d) seeks material damages on account of
the consummation of any transaction contemplated hereby.
12.4 CLOSING DOCUMENTS. Buyer shall have delivered or caused to be
delivered to Seller, on the Closing Date, the Purchase Price and each of the
documents required to be delivered by it pursuant to Article 14.
ARTICLE 13
TRANSFER TAXES: FEES AND EXPENSES
---------------------------------
13.1 EXPENSES. Except as set forth in SECTION 13.2 hereof or otherwise
expressly set forth in this Agreement, each party hereto shall be solely
responsible for all costs and expenses incurred by it in connection with the
negotiation, preparation and performance of and compliance
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with the terms of this Agreement including, but not limited to, the costs and
expenses incurred pursuant to Article 5 hereof and the fees and disbursements of
counsel and other advisors.
13.2 SPECIFIC CHARGES. All costs of transferring the Stations Assets in
accordance with this Agreement, including recordation, transfer and documentary
taxes and fees, and any excise, sales or use taxes, shall be shared equally by
Buyer and Seller. Each party shall pay any filing or grant fees imposed upon it
by any governmental authority the consent of which or the filing with which is
required for the consummation of the transactions contemplated hereby, with the
exception of filing fees of the FCC which shall be shared equally by Buyer and
Seller.
ARTICLE 14
DOCUMENTS TO BE DELIVERED AT CLOSING
------------------------------------
14.1 SELLER'S DOCUMENTS. At the Closing, Seller shall deliver or cause
to be delivered to Buyer the following:
14.1.1 Certified resolutions of the directors and sole
shareholder of each Seller approving the execution and delivery of this
Agreement and authorizing the consummation of the transactions contemplated
hereby;
14.1.2 A certificate of each Seller, dated the Closing Date,
in the form described in Section 11.1.3;
14.1.3 Governmental certificates showing that (a) each of XXX
and RLT is duly organized, validly existing and in good standing in the State of
Delaware, (b) XXX is qualified to transact business and in good standing in the
State of California; and (c) each of XXX and RLT has filed all returns, paid all
taxes due' thereon and is currently subject to no assessment, each certified as
of a date not more than thirty (30) days before the Closing Date;
14.1.4 Such certificates, bills of sale, general warranty
deeds, assignments, documents of title and other instruments of conveyance,
assignment and transfer (including without limitation any necessary consents to
conveyance, assignment or transfer required to be delivered hereunder), and lien
releases, all in form satisfactory to Buyer and Buyer's counsel, as shall be
effective to vest in Buyer good and marketable title in and to the Stations
Assets, free, clear and unencumbered except for Permitted Encumbrances, if any,
as set forth on SCHEDULE 7.7 and SCHEDULE 7.8. Without limitation of the
foregoing, if such are to be recorded pursuant to Section 7.8.3 the real estate
leases relating to the leased Real Estate (or memoranda thereof) shall have been
executed by Seller and each landlord and duly recorded with the recorder's
office.
14.1.5 An Assignment and Assumption Agreement in the form of
Exhibit E effectuating the assignment and assumption of the Assumed Liabilities
(the "Assignment and Assumption Agreement");
14.1.6 At the time and place of Closing, originals and all
copies of all program, operations, transmission or maintenance logs and all
other records required by the FCC to be
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maintained with respect to the Stations, including the public files of the
Stations, shall be left at the Stations and thereby delivered to Buyer;
14.1.7 A written opinion of Seller's corporate counsel
substantially in the form attached as Exhibit E, dated as of the Closing Date;
14.1.8 A written opinion of Seller's FCC counsel confirming
the matters set forth in Exhibit E, dated as of the Closing Date;
14.1.9 Such additional information, materials, agreements,
documents and instruments as Buyer and its counsel may reasonably request in
order to consummate the Closing, including any information requested by Buyer
pursuant to Section 3.4; and
14.1.10 At Seller's expense, a written commitment to issue
owner's and lessee's policies of title insurance naming Commonwealth as the
insured, written by a responsible title insurance company authorized to write
title insurance with respect to California real estate, covering Commonwealth's
interest in the Real Estate, which policies shall guarantee such title to be in
the condition called for by this Agreement and shall otherwise be reasonably
satisfactory to Buyer, subject only to Permitted Encumbrances and those liens
and encumbrances set forth on SCHEDULE 7.7 which are designated to continue
after the Closing (except for mortgages, judgments or other liens which will be
satisfied out of the proceeds of the sale of the Stations Assets hereunder), and
shall show no rights of occupancy or use by third parties, encroachments, no
gaps in the chain of title and no violations of any applicable zoning or other
ordinance, statute, rule or regulation.
14.2 BUYER'S DOCUMENTS. At the Closing, Buyer shall deliver or cause to
be delivered to Seller the following:
14.2.1 Certified resolutions of the directors of each Buyer
approving the execution and delivery of this Agreement and authorizing the
consummation of the transactions contemplated hereby;
14.2.2 A certificate of each Buyer, dated the Closing Date, in
the form described in SECTION 12.1.3;
14.2.3 The Assignment and Assumption Agreement;
14.2.4 A written opinion of Buyer's counsel substantially in
the form attached as Exhibit F, dated as of the Closing Date;
14.2.5 The Purchase Price in accordance with Section 3. 1
hereof; and
14.2.6 Such additional information, materials, agreements,
documents and instruments as Seller and its counsel may reasonably request in
order to consummate the Closing.
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ARTICLE 15
SURVIVAL, INDEMNIFICATION. ETC.
-------------------------------
15.1 SURVIVAL OF REPRESENTATIONS, ETC. It is the express intention and
agreement of the parties to this Agreement that all covenants and agreements
(together, "Agreements") and all representations and warranties (together,
"Warranties") made by Buyer and Seller in this Agreement shall survive the
Closing (regardless of any knowledge, investigation, audit or inspection at any
time made by or on behalf of Buyer or Seller) as follows:
15.1.1 The Agreements shall survive the Closing for a period
from the Closing Date equal to the statute of limitations for written contracts
in California.
15.1.2 The Warranties in Sections 6.2, 6.5, 7.2, the third
sentence of 7.5, 7.7, 7.18 and 7.20 shall survive the Closing without
limitation.
15.1.3 The Warranties in SECTION 7.6 or otherwise relating to
the federal, state, local or foreign tax obligations of Seller shall survive the
Closing for the period of the applicable statute of limitations plus any
extensions or waivers granted or imposed with respect thereto.
15.1.4 The Warranties in Section 7.11 shall survive for a
period of thirty (30) months from the Closing Date.
15.1.5 All other Warranties shall survive for a period of
eighteen (18) months from the Closing Date.
15.1.6 The right of any party to recover Damages (as defined
in Section 15.2. 1) pursuant to Section 15.2 shall not be affected by the
expiration of any Warranties as set forth herein, provided that notice of the
existence of any Damages (but not necessarily the fixed amount of any such
Damages) has been given by the indemnified party to the indemnifying party prior
to such expiration.
15.1.6 Notwithstanding any provision hereof to the contrary,
there shall be no contractual time limit in which Buyer or Seller may bring any
action for actual fraud (a "Fraud Action"), regardless of whether such actual
fraud also included a breach of any Agreement or Warranty; provided, however,
that any Fraud Action must be brought within the period of the applicable
statute of limitations plus any extensions or waivers granted or imposed with
respect thereto.
15.1.7. Notwithstanding the foregoing, Seller agrees that the
provisions of Section 9.7 shall survive the Closing for three (3) years.
15.2 INDEMNIFICATION.
----------------
15.2.1 Seller shall defend, indemnify and hold harmless Buyer
from and against any and all losses, costs, damages, liabilities and expenses,
including reasonable attorneys' fees and expenses ("Damages") incurred by Buyer
arising out of or related to: (a) any breach of the
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Warranties given or made by Seller in this Agreement; (b) any breach of the
Agreements made by Seller in this Agreement; (c) the Retained Liabilities; and
(d) any failure of the parties to comply with any "bulk sales" laws applicable
to the transactions contemplated hereby.
15.2.2 Buyer shall defend, indemnify and hold harmless Seller
from and against any and all Damages incurred by Seller arising out of or
related to: (a) any breach of the Warranties given or made by Buyer in this
Agreement; (b) any breach of the Agreements made by Buyer in this Agreement, and
(c) the Assumed Liabilities.
15.3 PROCEDURES: THIRD PARTY AND DIRECT INDEMNIFICATION CLAIMS. The
indemnified party agrees to give written notice, within thirty (30) days
following its discovery thereof, to the indemnifying party of any demand, suit,
claim or assertion of liability by third parties or other circumstances that
could give rise to an indemnification obligation hereunder against the
indemnifying party (hereinafter collectively "Claims," and individually a
"Claim"), it being understood that the failure to give such notice shall not
affect the indemnified party's right to indemnification and the indemnifying
party's obligation to indemnify as set forth in this Agreement, unless the
indemnifying party's ability to contest, defend or settle with respect to such
Claim is thereby demonstrably and materially prejudiced. The parties also agree
that any claim for Damages arising directly between the parties relating to this
Agreement may be brought at any time within the applicable survival period
specified in Section 15. 1.
The obligations and liabilities of the parties hereto with respect to
their respective indemnities pursuant to Section 15.2 resulting from any Claim
shall be subject to the following additional terms and conditions:
15.3.1 The indemnifying party shall have the right to
undertake, by counsel or other representatives of its own choosing, the defense
or opposition to such Claim.
15.3.2 In the event that the indemnifying party shall elect
not to undertake such defense or opposition, or within (10) days after notice of
any such Claim from the indemnified party shall fail to defend or oppose, the
indemnified party (upon further written notice to the indemnifying party) shall
have the right to undertake the defense, opposition, compromise or settlement of
such Claim, by counsel or other representatives of its own choosing, on behalf
of and for the account and risk of the indemnifying party (subject to the right
of the indemnifying party to assume defense of or opposition to such Claim at
any time prior to settlement, compromise or final determination thereof).
15.3.3 Anything in this Section 15.3 to the contrary
notwithstanding: (a) the indemnified party shall have the right, at its own cost
and expense, to participate in the defense, opposition, compromise or settlement
of the Claim; (b) the indemnifying party shall not, without the indemnified
party's written consent, settle or compromise any Claim or consent to entry of
any judgment which does not include as an unconditional term thereof the giving
by the claimant or the plaintiff to the indemnified party of a release from all
liability in respect of such Claim, and (c) in the event that the indemnifying
party undertakes defense of or opposition to any Claim, the indemnified party,
by counsel or other representative of its own choosing and at its sole cost and
expense, shall have the right to consult with the indemnifying party and its
counsel
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or other representatives concerning such Claim and the indemnifying party and
the indemnified party, and their respective counsel or other representatives,
shall cooperate in good faith with respect to such Claim.
15.3.4 No undertaking of defense or opposition to a Claim
shall be construed as an acknowledgment by such party that it is liable to the
party claiming indemnification with respect to the Claim at issue or other
similar Claims.
15.3.5 No indemnified party shall be entitled to assert a
claim for indemnification under Section 15.2.1(a) or Section 15.2.2(a) unless
and then only to the extent that the aggregate damages for all such claims
exceed $15,000, and the maximum liability of either party for indemnification
under such Subsections shall be $250,000, except with respect to claims relating
to title, taxes, License revocation, and environmental matters (which shall not
be so limited) or as otherwise set forth in Sections 16.2, 16.3 and 16.4 hereof.
ARTICLE 16
TERMINATION RIGHTS
------------------
16.1 TERMINATION. This Agreement may be terminated at any time prior to
Closing as follows:
16.1.1 Upon the mutual written consent of Buyer and Seller,
this Agreement may be terminated on such terms and conditions as so agreed; or
16.1.2 By written notice of Buyer to Seller if Seller breaches
in any material respect any of its representations or warranties or defaults in
any material respect in the observance or in the due and timely performance of
any of its covenants or agreements herein contained and such breach or default
shall not be cured within thirty (30) days of the date of notice of breach or
default served by Buyer; or
16.1.3 By written notice of Seller to Buyer if Buyer breaches
in any material respect any of its representations or warranties or defaults in
any material respect in the observance or in the due and timely performance of
any of its covenants or agreements herein contained and such breach or default
shall not be cured within thirty (30) days of the date of notice of breach or
default served by Seller; or
16.1.4 By written notice of Buyer to Seller or by Seller to
Buyer if the FCC denies the FCC Application;
16.1.5 By written notice of Buyer to Seller, or by Seller to
Buyer, if any court of competent jurisdiction shall have issued an order, decree
or ruling (which then remains in effect) or taken any other action restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement, or by Buyer, if any court, legislative body or governmental or
regulatory authority has taken, or is reasonably expected to take, action that
would make
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the consummation of the transactions contemplated hereby inadvisable or
undesirable as determined by Buyer in its sole discretion reasonably exercised;
16.1.6 By written notice of Buyer to Seller, or by Seller to
Buyer, if the Closing shall not have been consummated on or before June 30,
2000.
16.1.7 By written notice of Buyer to Seller if it shall become
apparent in both Seller's and Buyer's judgment reasonably exercised that any
condition to Buyer's obligation to close as set forth in Article 11 hereof will
not be satisfied on or before June 30, 2000.
16.1.8 By written notice of Buyer to Seller under the
conditions set forth in Section 9.2 hereof.
Notwithstanding the foregoing, no party hereto may effect a termination
hereof if such party is in material default or breach of this Agreement.
16.2 LIABILITY. Except as set forth in Section 16.4 below, the
termination of this Agreement under Section 16.1 shall not relieve any party of
any liability for breach of this Agreement prior to the date of termination.
16.3 MONETARY DAMAGES. Specific Performance and Other Remedies. The
parties recognize that if Seller refuses to perform under the provisions of this
Agreement, monetary damages alone will not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled to obtain specific performance of
the terms of this Agreement in addition to any other remedies, including but not
limited to monetary damages, that may be available to it. If any action is
brought by Buyer to enforce this Agreement, Seller shall waive the defense that
there is an adequate remedy at law. In the event of a default by Seller, which
results in the filing of a lawsuit for damages, specific performance, or other
remedy, Buyer shall be entitled to reimbursement by Seller of reasonable legal
fees and expenses incurred by Buyer.
16.4 SELLER'S LIQUIDATED DAMAGES. As more fully described in the Escrow
Agreement, in the event this Agreement is terminated because of Buyer's material
breach of this Agreement, and all other conditions to Closing are at such time
satisfied or waived (other than such conditions as can reasonably be satisfied
by Closing), then the Escrow Deposit shall be delivered to Seller, and the
proceeds thereof shall constitute liquidated damages. It is understood and
agreed that such liquidated damages amount represents Buyer's and Seller's
reasonable estimate of actual damages and does not constitute a penalty.
Recovery of liquidated damages shall be the sole and exclusive remedy of Seller
against Buyer for failing to consummate this Agreement as a result of Buyer's
material breach hereof, and shall be applicable regardless of the actual amount
of damages sustained and all other remedies are deemed waived by Seller.
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ARTICLE 17
MISCELLANEOUS PROVISIONS
------------------------
17.1 RISK OF LOSS. (a) The risk of loss or damage to any of the
Stations Assets prior to the Closing Date, shall be upon Seller. Seller shall
repair, replace and restore any such damaged or lost Stations Asset to its prior
condition as soon as possible and in no event later than forty-five (45) days
following the loss or damage; provided, however, that in the event any such loss
or damage of the Stations Assets exists on the Closing Date, then
notwithstanding any other provision hereto, Buyer at its option may, at its
election, (i) extend the Closing Date for a period of up to sixty (60) days
until such time as Seller shall have repaired, replaced and restored any such
damaged or lost Stations Asset to its prior condition, (ii) deduct from the
Purchase Price that amount which Buyer and Seller reasonably determine to be
sufficient to cover any such loss or damage and close the transaction on the
Closing Date, or (iii) require Seller to pay to Buyer all proceeds of insurance
received by Seller and not then paid by Seller for such repair, replacement or
restoration, and assign to Buyer all rights to receive proceeds of insurance on
account of such damage or destruction.
(b) In the event of any material damage to any Station or upon the
occurrence of any other event which materially impairs broadcast transmissions
of any Station in the normal and usual manner and substantially in accordance
with the respective Station Licenses of the Stations, Seller shall provide
prompt notice thereof to Buyer and the Closing Date shall be postponed until
such transmission in accordance with the applicable Station Licenses has been
resumed. The postponed Closing Date shall be such date within the effective
period of the FCC's consent to transfer of the Stations Licenses to Buyer as
Buyer may designate by not less than five (5) days' prior notice to Seller. In
the event Seller's facilities cannot be restored within the effective period of
the FCC's consent to transfer of the Stations Licenses to Buyer unless, in
either Buyer's reasonable judgment, the damage to the Station(s) could
materially adversely affect the operations of the Station(s) on a continuing
basis, the parties shall join in an application or applications requesting the
FCC to extend the effective period of its consent for a period not to exceed one
hundred twenty (120) days. If no such application is filed with the FCC, or if
any such application is filed with the FCC and the facilities have not been
restored so that the Closing Date may occur within such extended period or any
agreed extension thereof, Buyer shall have the right, by providing written
notice of termination to Seller within ten (10) days after the expiration of the
effective period or such 120-day period or any agreed extension hereof, as the
case may be, to terminate this Agreement forthwith without any further
obligation to either party and, upon such termination, the Escrow Deposit and
the earnings thereon shall be paid to Buyer pursuant to the Escrow Agreement.
The foregoing notwithstanding, if any damage to the business or property of
Seller requires any Station to be taken off the air or if broadcast
transmissions of such Station in accordance with the applicable FCC Licenses is
interrupted for any other reason or if such Station is operated at less than 80%
of its authorized licensed aural effective radiated power, in any such case for
a total of 240 hours (whether or not consecutive) and such Station has not been
restored within the effective period of the FCC's consent, then the Buyer may
terminate this Agreement upon written notice to Seller without any further
obligation to either party and, upon such termination, the Escrow Deposit and
the earnings thereon shall be paid to Buyer.
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17.2 CERTAIN INTERPRETIVE MATTERS AND DEFINITIONS. Unless the context
otherwise requires: (a) all references to Sections, Articles, Schedules or
Exhibits are to Sections, Articles, Schedules or Exhibits of or to this
Agreement; (b) each term defined in this Agreement has the meaning assigned to
it; (c) each accounting term not otherwise defined in this Agreement has the
meaning assigned to it in accordance with generally accepted accounting
principles as in effect on the date hereof, (d) "or" is disjunctive but not
necessarily exclusive; (e) words in the singular include the plural and vice
versa; (f) the term "Affiliate" has the meaning given it in Rule l2b-2 of
Regulation 12B under the Securities Exchange Act of 1934, as amended; and (g)
all references to '$' or dollar amounts will be to lawful currency of the United
States of America.
17.3 FURTHER ASSURANCES. After the Closing, Seller shall from time to
time, at the request of and without further cost or expense to Buyer, execute
and deliver such other instruments of conveyance and transfer and take such
other actions as may reasonably be requested in order more effectively to
consummate the transactions contemplated hereby to vest in Buyer good and
marketable title to the Stations Assets being transferred hereunder in
accordance with the terms hereof, and Buyer shall from time to time, at the
request of and without further cost or expense to Seller, execute and deliver
such other instruments and take such other actions as may reasonably be
requested in order more effectively to relieve Seller of any obligations being
assumed by Buyer hereunder.
17.4 PRESERVATION OF RECORDS. Subject to Section 10. 1 hereof, Buyer
hereby agrees that it will preserve and make available to Seller and its
attorneys and accountants (including the right to inspect and copy at Seller's
cost), during normal business hours and upon reasonable advance notice, for
three (3) years after the Closing Date, such of the books, records, files,
correspondence, memoranda and other documents referred to in this Agreement as
Seller may reasonably require for the preparation of tax reports and returns,
the preparation of financial statements, or the preparation of a response to any
claim by a third party against Seller.
17.5 BENEFIT AND ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Neither Buyer nor Seller may voluntarily or involuntarily
assign its interest under this Agreement without the prior written consent of
the other; provided, however, that no such permitted assignment shall relieve
Buyer of its obligations hereunder in the event that its assignee fails to
perform the obligations delegated. All covenants, agreements, statements,
representations, warranties and indemnities in this Agreement by and on behalf
of any of the parties hereto shall bind and inure to the benefit of their
respective successors and permitted assigns of the parties hereto. In the event
Buyer finds it necessary or is required to provide to a third party a collateral
assignment of the Buyer's interest in this Agreement and/or any related
documents, Seller shall cooperate with the Buyer and any third party requesting
such assignment including but not limited to signing a consent and
acknowledgment of such assignment.
17.6 AMENDMENTS. No amendment, waiver of compliance with any provision
or condition hereof or consent pursuant to this Agreement shall be effective
unless evidenced by an instrument in writing signed by the party against whom
enforcement of any waiver, amendment, change, extension or discharge is sought.
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17.7 HEADINGS. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
17.8 GOVERNING LAW. The construction and performance of this Agreement
shall be governed by the laws of the State of California, without giving effect
to the choice of law provisions thereof.
17.9 NOTICES. Any notice, demand or request required or permitted to be
given under the provisions of this Agreement shall be in writing, including by
facsimile, and shall be deemed to have been duly delivered and received on the
date of personal delivery, on the third day after deposit in the U.S. mail if
mailed by registered or certified mail, postage prepaid and return receipt
requested, on the day after delivery to a nationally recognized overnight
courier service if sent by an overnight delivery service for next morning
delivery or when dispatched by facsimile transmission (with the facsimile
transmission confirmation being deemed conclusive evidence of such dispatch) and
shall be addressed to the following addresses, or to such other address as any
party may request, in the case of Seller, by notifying Buyer, and in the case of
Buyer, by notifying Seller:
To Buyer: Commonwealth Communications, LLC
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Dex Xxxxx
Fax: (000) 000-0000
Copy to: Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
To Seller: Regent Broadcasting of
Lake Tahoe, Inc.
00 Xxxx XxxxxXxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Chairman
Fax: (000) 000-0000
Copy to: Xxxxxxx & Xxxx
The Federal Reserve Building
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
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17.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts and by facsimile, each of which will be deemed an original and all
of which together will constitute one and the same instrument.
17.11 NO THIRD PARTY BENEFICIARIES. Nothing herein expressed or implied
is intended or shall be construed to confer upon or give to any person or entity
other than the parties hereto and their successors or permitted assigns any
rights or remedies under or by reason of this Agreement.
17.12 SEVERABILITY. The parties agree that if one or more provisions
contained in this Agreement shall be deemed or held to be invalid, illegal or
unenforceable in any respect under any applicable law, this Agreement shall be
construed with the invalid, illegal or unenforceable provision deleted, and the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired thereby.
17.13 ENTIRE AGREEMENT. This Agreement and the schedules and exhibits
hereto embody the entire agreement and understanding of the parties hereto and
supersede any and all prior agreements, arrangements and understandings relating
to the matters provided for herein.
17.14. CHANGES TO FACILITIES. Seller agrees that with Seller's consent,
which consent shall not be unreasonably withheld, Buyer may, at Buyer's expense,
file with the FCC applications, petitions, or other papers (herein "FCC
Filings") as deemed necessary by Buyers to change the facilities of the
Stations. Upon request of Buyers, and as often as required by Buyers, Seller
shall promptly provide to Buyers (pursuant to Section 73.3517 of the FCC's
Rules) a written statement or statements which specifically grant Seller's
permission to Buyers (a) to file such application, petition, or other papers,
and (b) to file the statement with the application, petition or other papers.
Any FCC action in response to any application filed by Buyers pursuant to this
Section 17.14 shall not be deemed to constitute a condition precedent to the
Buyers' obligation to consummate the transactions contemplated by this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
REGENT LICENSEE OF LAKE TAHOE, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Chairman
-------------------------------------
REGENT BROADCASTING OF LAKE TAHOE, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Chairman
-------------------------------------
COMMONWEALTH COMMUNICATIONS, LLC
By: Commonwealth II, LLC, its sole member
By: Alta/Commonwealth, Inc., its Manager
By: /s/ Dex Xxxxx
-------------------------------------
Name: Dex Xxxxx
-------------------------------------
Title: President
-------------------------------------
COMMONWEALTH LICENSEE SUBSIDIARY, LLC
By: Commonwealth Communications, LLC,
its sole member
By: Commonwealth II, LLC, its sole member
By: Alta/Commonwealth, Inc., its Manager
By: /s/ Dex Xxxxx
-------------------------------------
Name: Dex Xxxxx
-------------------------------------
Title: President
-------------------------------------
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