Exhibit 99.1
EXECUTION COPY
ASSET PURCHASE AGREEMENT
by and among
INFINITY RADIO INC.
NEXTMEDIA OPERATING, INC.
and
NM LICENSING LLC
ARTICLE I ASSETS TO BE CONVEYED...........................................................................1
1.1 Station Assets..................................................................................1
1.2 Excluded Assets.................................................................................3
1.3 Assumption of Obligations.......................................................................4
1.4 Retained Liabilities............................................................................5
1.5 Purchase Price..................................................................................6
1.6 Closing.........................................................................................6
1.7 General Proration...............................................................................6
1.8 Effect of Local Marketing Agreement.............................................................9
ARTICLE II REPRESENTATIONS AND WARRANTIES OF OPERATING.....................................................9
2.1 Corporate Existence and Power...................................................................9
2.2 Corporate Authorization........................................................................10
2.3 Governmental Authorization.....................................................................10
2.4 Noncontravention...............................................................................10
2.5 Absence of Litigation..........................................................................11
2.6 FCC Qualifications.............................................................................11
2.7 Financing......................................................................................11
2.8 No Finder......................................................................................11
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER.......................................................11
3.1 Corporate Existence and Power..................................................................11
3.2 Corporate Authorization........................................................................11
3.3 Governmental Authorization.....................................................................12
3.4 Noncontravention...............................................................................12
3.5 Absence of Litigation..........................................................................12
3.6 Financial Statements...........................................................................12
3.7 Absence of Changes.............................................................................13
3.8 FCC Licenses...................................................................................13
3.9 Personal Property..............................................................................13
3.10 Station Contracts..............................................................................14
3.11 Intangible Property............................................................................14
3.12 Real Property..................................................................................14
3.13 Environmental..................................................................................14
3.14 Employee Information...........................................................................15
3.15 Compliance with Laws...........................................................................16
3.16 Taxes..........................................................................................16
3.17 Sufficiency and Title to Station Assets........................................................16
3.18 No Finder......................................................................................16
ARTICLE IV COVENANTS.............................................................................................16
4.1 Governmental Approvals.........................................................................16
4.2 Conduct of Business............................................................................17
4.3 Access to Information; Inspections; Confidentiality; Publicity.................................18
4.4 Risk of Loss...................................................................................19
4.5 Consents to Assignment; Estoppel Certificates..................................................19
4.6 Notification...................................................................................20
4.7 Employee Matters...............................................................................20
4.8 Title Insurance; Surveys.......................................................................21
4.9 Environmental..................................................................................21
4.10 Intercompany Assignments.......................................................................22
4.11 Audit..........................................................................................22
4.12 Further Assurances.............................................................................22
ARTICLE V CONDITIONS PRECEDENT...................................................................................22
5.1 To Buyer's Obligations.........................................................................22
5.2 To Seller's Obligations........................................................................23
ARTICLE VI DOCUMENTS TO BE DELIVERED AT THE CLOSING..............................................................24
6.1 Documents to be Delivered by Both Parties......................................................24
6.2 Documents to be Delivered by Seller............................................................24
6.3 Documents to be Delivered by Buyer.............................................................25
ARTICLE VII SURVIVAL; INDEMNIFICATION............................................................................25
7.1 Survival.......................................................................................25
7.2 Indemnification................................................................................26
7.3 Procedures.....................................................................................26
7.4 Sole Remedy....................................................................................27
ARTICLE VIII TERMINATION RIGHTS..................................................................................27
8.1 Termination....................................................................................27
8.2 Effect of Termination..........................................................................29
ARTICLE IX TAX MATTERS...........................................................................................29
9.1 Bulk Sales.....................................................................................29
9.2 Transfer Taxes.................................................................................29
ARTICLE X SPECIFIC PERFORMANCE...................................................................................29
10.1 Specific Performance...........................................................................29
ARTICLE XI OTHER PROVISIONS......................................................................................29
11.1 Expenses.......................................................................................29
11.2 Benefit and Assignment.........................................................................30
11.3 No Third Party Beneficiaries...................................................................30
11.4 Entire Agreement; Waiver; Amendment............................................................30
11.5 Headings.......................................................................................31
11.6 Computation of Time............................................................................31
11.7 Governing Law; Waiver of Jury Trial............................................................31
11.8 Construction...................................................................................31
11.9 Notices........................................................................................31
11.10 Severability...................................................................................32
11.11 Counterparts...................................................................................33
ARTICLE XII DEFINITIONS..........................................................................................33
12.1 Defined Terms..................................................................................33
12.2 Terms Generally................................................................................38
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement"), made as of
the 14th day of July 2005, is by and among Infinity Radio Inc., a Delaware
corporation ("Seller"), NextMedia Operating, Inc., a Delaware corporation
("Operating"), and NM Licensing LLC, a Delaware limited liability company
("Licensing" and, collectively with Operating, "Buyer").
RECITALS
Seller is the licensee of and operates radio broadcast station
KEZR(FM), San Jose, California (Facility ID No. 1176), and radio broadcast
station KBAY(FM), Gilroy, California (Facility ID No. 35401) (each of the
foregoing, a "Station," and collectively, the "Stations"), pursuant to licenses
issued by the Federal Communications Commission (the "FCC").
Seller and Buyer have agreed that Seller will sell and Buyer
will acquire substantially all of the assets of the Stations on the terms and
subject to the conditions set forth in this Agreement, including the FCC's
consent to the assignment of the FCC Licenses (as defined below) to Licensing.
Definitions of certain capitalized terms used in this Agreement are set forth in
Article XII.
Seller and Operating are, simultaneously with the execution
and delivery of this Agreement, entering into a Local Marketing Agreement for
the Stations (the "Local Marketing Agreement"), pursuant to which, following the
effective date thereof, Operating shall provide programming on the Stations
pursuant to the terms and conditions contained therein, pending the Closing of
the transactions contemplated by this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants and agreements hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
ASSETS TO BE CONVEYED
1.1 Station Assets. Pursuant to the terms and subject to the
conditions of this Agreement, at the Closing, Seller shall sell, assign,
transfer and convey to Buyer, and Buyer shall purchase from Seller, all of
Seller's right, title and interest in, to and under all of the assets,
properties, interests and rights of Seller of whatsoever kind and nature, real
and personal, tangible and intangible, which are used or held for use primarily
in the operation of the Stations, but excluding the Excluded Assets as
hereinafter defined. Except as provided in Section 1.2, the Station Assets
include the following:
(a) all licenses, permits and other authorizations which are
issued to Seller by the FCC with respect to the Stations including those
described on Schedule 1.1(a), and including any pending applications for or
renewals or modifications thereof between the date hereof and the Closing (the
"FCC Licenses");
(b) all equipment, electrical devices, antennae, cables,
tools, hardware, office furniture and fixtures, office materials and supplies,
inventory, motor vehicles, spare parts and other tangible personal property of
every kind and description used or held for use primarily in the operation of
the Stations, including those items listed on Schedule 1.1(b), except any
retirements or dispositions of Tangible Personal Property made between the date
hereof and Closing in the ordinary course of business and consistent with
Section 4.2 (the "Tangible Personal Property");
(c) the following contracts, agreements or leases
(collectively, the "Station Contracts"):
(i) all agreements entered into in the ordinary course of
business for the sale of advertising time on the Stations for cash
that exist at Closing;
(ii) all contracts, agreements and leases that relate to
the operation of the Stations listed or described on Schedule 1.1(c)
(including Group Contracts to the extent that Schedule 1.1(c)
specifically provides for the partial assignment and assumption of
any such Group Contract);
(iii) all contracts, agreements and leases not described
in clauses (i) and (ii) to the extent they do not in the aggregate
involve a post-Closing expense to Buyer in excess of $100,000; and
(iv) all contracts, agreements and leases made between the
date hereof and Closing in the ordinary course of business consistent
with Section 4.2;
(d) all of Seller's rights in and to the Stations' call
letters, registered and unregistered trademarks, trade names, service marks,
copyrights, jingles, logos, slogans, Internet domain names, Internet URLs,
Internet web sites, content and databases, computer software, programs and
programming material and other intangible property rights and interests applied
for, issued to or owned by Seller that are used primarily in the operation of
the Stations, including those listed on Schedule 1.1(d) (the "Intangible
Property");
(e) all files, documents, records and books of account (or
copies thereof) relating primarily to the operation of the Stations, including
the Stations' public inspection files, programming information and studies,
blueprints, technical information and engineering data, advertising studies,
marketing and demographic data, sales correspondence, lists of advertisers,
credit and sales reports, and logs but excluding any such documents relating to
Excluded Assets (as defined below);
(f) all interests in real property that are used or held for
use primarily in the operation of the Stations, including the real property
described on Schedule 1.1(f) (the "Real Property"); and
(g) all goodwill of or relating to the Stations.
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The assets to be transferred to Buyer hereunder are collectively referred to
herein as the "Station Assets." It is understood and agreed that all of the
Station Assets excluding the FCC Licenses shall be transferred to Operating and
the FCC Licenses shall be transferred to Licensing. The Station Assets shall be
transferred to Buyer free and clear of liens, mortgages, pledges, security
interests, claims and encumbrances ("Liens") except for Permitted Liens, if any.
1.2 Excluded Assets. Notwithstanding anything to the contrary
contained herein, Buyer expressly acknowledges and agrees that the following
assets and properties of Seller (the "Excluded Assets") shall not be acquired by
Buyer and are excluded from the Station Assets:
(a) Seller's books and records pertaining to the corporate
organization, existence or capitalization of Seller;
(b) all cash, cash equivalents, or similar type investments of
Seller, such as certificates of deposit, treasury bills, marketable securities,
asset or money market accounts or similar accounts or investments;
(c) subject to the terms of the Local Marketing Agreement, all
accounts receivable existing at the Effective Time, notes receivable, promissory
notes or amounts due from employees;
(d) intercompany accounts receivable and accounts payable;
(e) all insurance policies or any proceeds payable thereunder;
(f) 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;
(g) all interest in and to refunds of Taxes relating to all
periods prior to the Effective Time;
(h) all tangible and intangible personal property disposed of
or consumed in the ordinary course of Seller's business consistent with past
practices between the date of this Agreement and the Closing Date, as permitted
under this Agreement;
(i) all rights to the names "Viacom" and "Infinity" and logos
or variations thereof and all goodwill associated therewith;
(j) all rights to marks not used in the operation of the
Stations as of the date of this Agreement, including the marks identified on
Schedule 1.2(j), and all goodwill associated therewith;
(k) all rights to marks used in connection with the operation
of another station or business of Viacom Inc., Seller or any of their Affiliates
other than or in addition to the Stations, except to the extent that Schedule
1.1(d) indicates Seller will grant Buyer a non-exclusive right to use any such
xxxx in the operation of the Stations;
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(l) the Oracle Financial System used by Seller and its
Affiliates, whether in hard copy, stored on a computer, disk or otherwise;
(m) Group Contracts, except to the extent that Schedule 1.1(c)
specifically provides for the partial assignment and assumption of any such
Group Contract;
(n) any asset or property used or held for use by Seller or an
Affiliate of Seller not located at the Stations' offices in San Xxxx or the
Stations' transmitter sites, unless specifically identified on the Schedules to
this Agreement;
(o) all ASCAP, BMI and SESAC licenses;
(p) all items of personal property owned by personnel at the
Stations;
(q) subject to the Local Marketing Agreement, any cause of
action or claim relating to any event or occurrence prior to the Effective Time;
(r) all rights of Seller under this Agreement or the
transaction contemplated hereby; and
(s) the contracts identified on Schedule 1.2(s).
1.3 Assumption of Obligations. At the Closing, unless
otherwise provided in the Local Marketing Agreement, Buyer shall assume and
agrees to discharge and perform the following (collectively, the "Assumed
Obligations"):
(a) all liabilities, obligations and commitments of Seller
under the Station Contracts that arise or relate to any period at or after the
Effective Time, except to the extent resulting from the ownership or operation
of the Stations by Seller or its Affiliates prior to the Effective Time;
(b) all liabilities, obligations and commitments relating to
Transferred Employees as specified in Section 4.7;
(c) any current liability of Seller for which Buyer has
received a credit under Section 1.7;
(d) all liabilities and obligations relating to the Station
Assets arising out of Environmental Laws, whether or not presently existing,
except to the extent that Seller has undertaken to remediate an Environmental
Condition under Section 4.9 (Environmental) or is obligated under Section 7.2(a)
(Indemnification) to indemnify Buyer for Losses arising out of or resulting from
Seller's breach of any representation or warranty in Section 3.13
(Environmental); and
(e) all other liabilities, obligations and commitments
relating to or arising from the Stations or the Station Assets that arise or
relate to any period on or after the Effective Time, except to the extent
resulting from the ownership or operation of the Stations by Seller or its
Affiliates prior to the Effective Time.
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1.4 Retained Liabilities. Unless otherwise required pursuant
to the Local Marketing Agreement, Buyer does not assume or agree to discharge or
perform and will not be deemed by reason of the execution and delivery of this
Agreement or any agreement, instrument or documents delivered pursuant to or in
connection with this Agreement or otherwise by reason of the consummation of the
transactions contemplated hereby, to have assumed or to have agreed to discharge
or perform, any liabilities, obligations or commitments of Seller of any nature
whatsoever whether accrued, absolute, contingent or otherwise, other than the
Assumed Obligations, including the following liabilities or obligations of
Seller (the "Retained Liabilities"):
(a) all obligations or liabilities of Seller or any
predecessor or Affiliate of Seller which in any way relate to, or arise out of,
any of the Excluded Assets;
(b) other than Taxes expressly allocated pursuant to other
provisions of this Agreement, any and all Tax liabilities of Seller;
(c) all liabilities or obligations of Seller owed to Seller or
its Affiliates other than liabilities or obligations under Station Contracts
that arise or are to be performed on or after the Effective Time, except to the
extent resulting from the ownership or operation of the Stations by Seller or
its Affiliates prior to the Effective Time;
(d) all liabilities or obligations of Seller for borrowed
money or interest on such borrowed money;
(e) except as set forth in Section 4.7, any claims,
liabilities or obligations of Seller as an employer incurred prior to the
Effective Time, including liabilities for wages, supplemental unemployment
benefits, severance benefits, retirement benefits, Federal Consolidated Omnibus
Budget Reconciliation Act of 1985 benefits, Federal Family and Medical Leave Act
of 1993 benefits, Federal Workers Adjustment and Retraining Notification Act
obligations and liabilities, or any other employee benefits, withholding Tax
liabilities, workers' compensation, or unemployment compensation benefits or
premiums, hospitalization or medical claims, occupational disease or disability
claims, or other claims attributable in whole or in part to employment or
termination by Seller or arising out of any labor matter involving Seller as an
employer, and any claims, liabilities and obligations arising from or relating
to the Employee Benefit Plans;
(f) any claims, liabilities, losses, damages or expenses
relating to any Action to the extent it arises out of the business or operation
of the Stations prior to the Effective Time;
(g) except as may otherwise be provided herein, any accounts
payable or accrued liabilities of Seller; and
(h) any fees and expenses incurred by Seller in connection
with negotiating, preparing, closing and carrying out this Agreement and the
transactions contemplated by this Agreement, including the fees and expenses of
Seller's attorneys, accountants, consultants and brokers.
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1.5 Purchase Price.
(a) In consideration for the sale of the Station Assets,
Operating, on behalf of itself and Licensing, shall, at the Closing, in addition
to assuming the Assumed Obligations, pay to Seller the sum of Eighty Million
Dollars ($80,000,000) (the "Purchase Price") by wire transfer of immediately
available federal funds pursuant to wire instructions that Seller shall provide
to Buyer.
(b) Operating shall use commercially reasonable efforts to
cause General Electric Capital Corporation, no later than one (1) Business Day
from the date of this Agreement, to issue an irrevocable letter of credit in the
amount of $4,000,000 in substantially the form of Exhibit A hereto (the "Letter
of Credit") and provide Seller with confirmation ("LC Issuance Notice") that the
Letter of Credit has been issued and deposited with a courier service for
delivery to U.S. Bank National Association, as escrow agent (the "Escrow
Agent"). Seller shall have the right to terminate this Agreement if the Letter
of Credit has not been issued and delivered to the Escrow Agent within five (5)
Business Days from the date of this Agreement. The Escrow Agent shall hold and
disburse the Letter of Credit or the proceeds received by the Escrow Agent upon
its presentment of the Letter of Credit, hereinafter the "Letter of Credit
Proceeds," pursuant to terms of this Agreement and the escrow agreement executed
and delivered by Seller, Buyer and Escrow Agent simultaneously with the
execution and delivery of this Agreement.
1.6 Closing. Subject to Section 8.1 hereof and except as
otherwise mutually agreed upon by Seller and Buyer, the consummation of the sale
and purchase of the Station Assets and the assumption of the Assumed Obligations
hereunder (the "Closing") shall take place (by electronic exchange of the
documents to be delivered at the Closing) five (5) Business Days after the day
that the FCC Consent becomes effective, provided that each of the other
conditions to Closing set forth in Article V has been satisfied or waived, and
provided further that if the date scheduled for the Closing would otherwise
occur during the pendency of the FCC license renewal application for either of
the Stations (and the FCC does not permit the Closing while the renewal
application is pending), the Closing shall be delayed until the earliest day
that the FCC permits. Alternatively, the Closing may take place at such other
place, time or date as the parties may mutually agree in writing. The date on
which the Closing is to occur is referred to herein as the "Closing Date." The
effective time of the Closing shall be 12:01 a.m., San Jose, California time, on
the Closing Date (the "Effective Time").
1.7 General Proration.
(a) All Station Assets that would be classified as assets in
accordance with GAAP, and all Assumed Obligations that would be classified as
liabilities in accordance with GAAP (including accrued but unpaid commissions),
shall be prorated between Buyer and Seller as of the Effective Time, including
by taking into account the elapsed time or consumption of an asset during the
month in which the Effective Time occurs (respectively, the "Prorated Station
Assets" and the "Prorated Assumed Obligations"), to reflect the principle that
Seller shall be entitled to all income and be responsible for all expenses
arising from the operation of the Stations prior to the Effective Time and Buyer
shall be entitled to all income and be responsible for all expenses arising from
the operation of the Stations on or after the Effective Time. Such Prorated
Station Assets and Prorated Assumed Obligations relating to the period prior to
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the Effective Time shall be for the account of Seller and those relating to the
period on or after the Effective Time for the account of Buyer and shall be
prorated accordingly.
(b) Such prorations shall include all ad valorem and other
property taxes, utility expenses, liabilities and obligations under Station
Contracts, rents and similar prepaid and deferred items and all other expenses
and obligations, such as accrued but unpaid commissions, deferred revenue and
prepayments, attributable to the ownership and operation of the Stations that
straddle the period before and after the Effective Time. If such amounts were
prepaid by Seller prior to the Effective Time and Buyer will receive a benefit
after the Effective Time, then Seller shall receive a credit for such amounts.
If Seller was entitled to receive a benefit prior to the Effective Time and such
amounts will be paid by Buyer after the Effective Time, Buyer will receive a
credit for such amounts. To the extent not known, real estate and personal
property taxes shall be apportioned on the basis of Taxes assessed for the
preceding year, with a reapportionment as soon as the new tax rate and valuation
can be ascertained even if such is ascertained after the Settlement Statement is
so determined.
(c) Notwithstanding anything in this Section 1.7 to the
contrary, there shall be no proration under this Section 1.7 for Tradeout
Agreements except as provided in this subsection. In the event that the value of
the aggregate liability of the Stations under the Tradeout Agreements as of the
Effective Time exceeds the sum of (A) One Hundred Thousand Dollars ($100,000.00)
plus (B) the aggregate fair value of the goods or services to be received by the
Buyer on or after the Effective Time under such Tradeout Agreements, such excess
shall be treated as a Prorated Assumed Obligation. For purposes of this
subsection, the liability of the Stations for unperformed time on or after the
Effective Time shall be valued according to the fair market value of the goods
or services received or to be received by the Stations for such time under such
agreements.
(d) Accrued vacation liabilities for Transferred Employees
shall be included in the prorations, but there shall be no proration under this
Section 1.7 for sick leave for Transferred Employees.
(e) Within forty-five (45) days after the Closing Date, Buyer
shall prepare and deliver to Seller a proposed pro rata adjustment of assets and
liabilities in the manner described in Section 1.7(a) and Section 1.7(b), for
the Stations, as of the Effective Time (the "Settlement Statement") setting
forth the Prorated Assumed Obligations and the Prorated Station Assets together
with a schedule setting forth, in reasonable detail, the components thereof.
(f) During the 30-day period following the receipt of the
Settlement Statement (A) Seller and its independent auditors, if any, shall be
permitted to review and make copies reasonably required of (i) the financial
statements of Buyer relating to the Settlement Statement (ii) the working papers
of Buyer and its independent auditors, if any, relating to the Settlement
Statement (iii) the books and records of Buyer relating to the Settlement
Statement and (iv) any supporting schedules, analyses and other documentation
relating to the Settlement Statement and (B) Buyer shall provide reasonable
access, upon reasonable advance notice and during normal business hours, to such
employees of Seller and its independent auditors, if any, as Seller reasonably
believes is necessary or desirable in connection with its review of the
Settlement Statement.
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(g) The Settlement Statement shall become final and binding
upon the parties on the thirtieth (30th) day following delivery thereof, unless
Seller gives written notice of its disagreement with the Settlement Statement
(the "Notice of Disagreement") to Buyer prior to such date. The Notice of
Disagreement shall specify in reasonable detail the nature of any disagreement
so asserted. If a Notice of Disagreement is given to Buyer in the period
specified, then the Settlement Statement (as revised in accordance with clause
(A) or (B) below) shall become final and binding upon the parties on the earlier
of (A) the date Buyer and Seller resolve in writing any differences they have
with respect to the matters specified in the Notice of Disagreement or (B) the
date any disputed matters are finally resolved in writing by the Accounting
Firm.
(h) Within ten (10) Business Days after the Settlement
Statement becomes final and binding upon the parties, (A) Buyer shall be
required to pay to Seller the amount, if any, by which the Prorated Station
Assets exceeds the Prorated Assumed Obligations or (B) Seller shall be required
to pay to Buyer the amount, if any, by which the Prorated Assumed Obligations
exceeds the Prorated Station Assets. All payments made pursuant to this Section
1.7(h) must be made via wire transfer in immediately available funds to an
account designated by the recipient party, together with interest thereon at the
prime rate (as reported by The Wall Street Journal or, if not reported thereby,
by another authoritative source) as in effect from time to time from the
Effective Time to the date of actual payment.
(i) Notwithstanding the foregoing, in the event that Seller
delivers a Notice of Disagreement, Seller or Buyer shall be required to make a
payment of any undisputed amount to the other regardless of the resolution of
the items contained in the Notice of Disagreement, and Seller or Buyer, as
applicable, shall within ten (10) Business Days of the receipt of the Notice of
Disagreement make payment to the other by wire transfer in immediately available
funds of such undisputed amount owed by Seller or Buyer to the other, as the
case may be, pending resolution of the Notice of Disagreement together with
interest thereon, calculated as described above.
(j) During the 30-day period following the delivery of a
Notice of Disagreement to Buyer that complies with the preceding paragraphs,
Buyer and Seller shall seek in good faith to resolve in writing any differences
they may have with respect to the matters specified in the Notice of
Disagreement. During such period: (A) Buyer and its independent auditors, if
any, at Buyer's sole cost and expense, shall be, and Seller and its independent
auditors, if any, at Seller's sole cost and expense, shall be, in each case
permitted to review and make copies reasonably required of: (i) the financial
statements of the Seller, in the case of Buyer, and Buyer, in the case of
Seller, relating to the Notice of Disagreement; (ii) the working papers of
Seller, in the case of Buyer, and Buyer, in the case of Seller, and such other
party's auditors, if any, relating to the Notice of Disagreement; (iii) the
books and records of Seller, in the case of Buyer, and Buyer, in the case of
Seller, relating to the Notice of Disagreement; and (iv) any supporting
schedules, analyses and documentation relating to the Notice of Disagreement;
and (B) Seller, in the case of Buyer, and Buyer, in the case of Seller, shall
provide reasonable access, upon reasonable advance notice and during normal
business hours, to such employees of such other party and such other party's
independent auditors, if any, as such first party reasonably believes is
necessary or desirable in connection with its review of the Notice of
Disagreement.
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(k) If, at the end of such 30-day period, Buyer and Seller
have not resolved such differences, Buyer and Seller shall submit to the
Accounting Firm for review and resolution any and all matters that remain in
dispute and that were properly included in the Notice of Disagreement. Within
sixty (60) days after selection of the Accounting Firm, Buyer and Seller shall
submit their respective positions to the Accounting Firm, in writing, together
with any other materials relied upon in support of their respective positions.
Buyer and Seller shall use commercially reasonable efforts to cause the
Accounting Firm to render a decision resolving the matters in dispute within
thirty (30) days following the submission of such materials to the Accounting
Firm. Buyer and Seller agree that judgment may be entered upon the determination
of the Accounting Firm in any court having jurisdiction over the party against
which such determination is to be enforced. Except as specified in the following
sentence, the cost of any arbitration (including the fees and expenses of the
Accounting Firm) pursuant to this Section 1.7 shall be borne by Buyer and Seller
in inverse proportion as they may prevail on matters resolved by the Accounting
Firm, which proportional allocations shall also be determined by the Accounting
Firm at the time the determination of the Accounting Firm is rendered on the
matters submitted. The fees and expenses (if any) of Buyer's independent
auditors and attorneys incurred in connection with the review of the Notice of
Disagreement shall be borne by Buyer, and the fees and expenses (if any) of
Seller's independent auditors and attorneys incurred in connection with their
review of the Settlement Statement shall be borne by Seller.
1.8 Effect of Local Marketing Agreement. Simultaneously with
the execution of this Agreement, Seller and Operating are executing and
delivering the Local Marketing Agreement. The term of the Local Marketing
Agreement shall commence one (1) Business Day after termination or expiration of
the waiting period under the HSRA. To the extent that the Station Assets are
assigned, the Assumed Obligations are assumed or assets and liabilities are
prorated under the Local Marketing Agreement, any obligation of the Seller under
this Agreement to assign such Station Assets, of the Buyer to assume such
Assumed Obligations or of the parties to prorate such Station Assets and Assumed
Obligations, shall be deemed satisfied.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF OPERATING
Operating represents and warrants to Seller as follows:
2.1 Corporate Existence and Power.
(a) Operating is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of its incorporation
and has all corporate powers and all governmental licenses, authorizations,
permits, consents and approvals required to carry on its business as now
conducted. Operating is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction where the Station Assets are
located.
(b) Licensing is a limited liability company duly formed,
validly existing and in good standing under the laws of the state of its
formation and has all limited liability company powers and all governmental
licenses, authorizations, permits, consents and approvals required to carry on
its business as now conducted. Licensing is duly qualified to do business as a
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foreign limited liability company and is in good standing in each jurisdiction
where the Station Assets are located. Licensing is a wholly owned subsidiary of
Operating.
2.2 Corporate Authorization.
(a) The execution and delivery by Operating and Licensing of
this Agreement and all of the other agreements, certificates and instruments to
be executed and delivered by Operating and/or Licensing, as applicable, pursuant
hereto or in connection with the transactions contemplated hereby (the "Buyer
Ancillary Agreements"), the performance by each of Operating and/or Licensing,
as applicable, of its obligations hereunder and thereunder and the consummation
by each of Operating and/or Licensing, as applicable, of the transactions
contemplated hereby and thereby are within the corporate or limited liability
company powers, as applicable, of Operating and Licensing, and have been duly
authorized by all requisite corporate or limited liability company action, as
applicable, on the part of Operating and Licensing.
(b) This Agreement has been, and each Buyer Ancillary
Agreement will be, duly executed and delivered by each of Operating and
Licensing, as applicable. This Agreement (assuming due authorization, execution
and delivery by Seller) constitutes, and each Buyer Ancillary Agreement will
constitute when executed and delivered by Operating and Licensing, as
applicable, the legal, valid and binding obligation of Operating and Licensing,
as applicable, enforceable against Operating and Licensing, as applicable, in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar Laws affecting or relating to enforcement of
creditors' rights generally and general principles of equity (regardless of
whether enforcement is considered in a proceeding at law or in equity).
2.3 Governmental Authorization. The execution, delivery and
performance by Operating and Licensing of this Agreement and each applicable
Buyer Ancillary Agreement and the consummation of the transactions contemplated
hereby and thereby require no action by or in respect of, or filing with or
notification to, any Governmental Authority other than compliance with any
applicable requirements of the HSRA and the FCC.
2.4 Noncontravention. Except as set forth on Schedule 2.4, the
execution, delivery and performance of this Agreement and each Buyer Ancillary
Agreement by Operating and Licensing, as applicable, and the consummation of the
transactions contemplated hereby and thereby do not and will not (a) violate or
conflict with the certificate of incorporation or by-laws of Operating or the
certificate of formation or limited liability company agreement of Licensing;
(b) assuming compliance with the matters referred to in Section 2.3, conflict
with or violate any Law or Governmental Order applicable to Operating or
Licensing; or (c) require any consent or other action by or notification to any
Person under, constitute a default under, give to any Person any rights of
termination, amendment, acceleration or cancellation of any right or obligation
of Operating or Licensing under, any provision of any material note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other agreement or instrument to which Operating or Licensing is a party or by
which any of Operating's or Licensing's assets is or may be bound.
2.5 Absence of Litigation. There is no Action pending or, to
Buyer's knowledge, threatened against Buyer that in any manner challenges or
seeks to prevent, enjoin, alter or delay materially the transactions
contemplated by this Agreement.
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2.6 FCC Qualifications. Buyer is legally, financially and
otherwise qualified to be the licensee of, acquire, own and operate the Stations
under the Communications Act of 1934, as amended (the "Communications Act"), and
the rules, regulations and policies of the FCC. To Buyer's knowledge, there are
no facts that would, under existing Law and the existing rules, regulations,
policies and procedures of the FCC, disqualify Licensing as an assignee of the
FCC Licenses or Operating as the owner and operator of the other Station Assets.
No waiver of any FCC rule or policy relating to the qualifications of Buyer is
necessary for the FCC Consent to be obtained.
2.7 Financing. Operating has, and as of the Closing Date will
have, sufficient cash, available lines of credit or other sources of immediately
available funds to enable it to make payment of the Purchase Price and any other
amounts to be paid by it in accordance with the terms of this Agreement and the
Buyer Ancillary Agreements.
2.8 No Finder. No broker, finder or other person is entitled
to a commission, brokerage fee or other similar payment in connection with this
Agreement, the Buyer Ancillary Agreements or the transactions contemplated
hereby or thereby as a result of any agreements or action of Buyer or any party
acting on Buyer's behalf.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Corporate Existence and Power. Seller is a corporation
duly incorporated, validly existing and in good standing under the laws of the
state of its incorporation and has all corporate powers and all governmental
licenses, authorizations, permits, consents and approvals required to own and
operate the Stations and to carry on the Stations' business as now conducted by
it. Seller is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the Station Assets are located.
3.2 Corporate Authorization.
(a) The execution and delivery by Seller of this Agreement and
all of the other agreements, certificates and instruments to be executed and
delivered by Seller pursuant hereto or in connection with the transactions
contemplated hereby (the "Seller Ancillary Agreements"), the performance by
Seller of its obligations hereunder and thereunder and the consummation by
Seller of the transactions contemplated hereby and thereby are within Seller's
corporate powers and have been duly authorized by all requisite corporate action
on the part of Seller.
(b) This Agreement has been, and each Seller Ancillary
Agreement will be, duly executed and delivered by Seller. This Agreement
(assuming due authorization, execution and delivery by Buyer) constitutes, and
each Seller Ancillary Agreement will constitute when executed and delivered by
Seller, the legal, valid and binding obligation of Seller, enforceable against
Seller in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar Laws affecting or relating to
enforcement of creditors' rights generally and general principles of equity
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(regardless of whether enforcement is considered in a proceeding at law or in
equity).
3.3 Governmental Authorization. The execution, delivery and
performance by Seller of this Agreement and each Seller Ancillary Agreement and
the consummation of the transactions contemplated hereby and thereby require no
action by or in respect of, or filing with or notification to, any Governmental
Authority other than compliance with any applicable requirements of the HSRA and
the FCC.
3.4 Noncontravention. Except as disclosed on Schedule 3.4, the
execution, delivery and performance of this Agreement and each Seller Ancillary
Agreement by Seller and the consummation of the transactions contemplated hereby
and thereby do not and will not (a) violate or conflict with the certificate of
incorporation or by-laws of Seller; (b) assuming compliance with the matters
referred to in Section 3.3, conflict with or violate any Law or Governmental
Order applicable to Seller; (c) require any consent or other action by or
notification to any Person under, constitute a default under, give to any Person
any rights of termination, amendment, acceleration or cancellation of any right
or obligation of Seller under, any provision of any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
agreement or instrument to which Seller is a party or by which any of the
Station Assets is or may be bound, except for such consents for which the
failure to obtain the same would not materially impair the ability of the Buyer
to operate the Stations consistent with Seller's past practice following the
Effective Time; or (d) result in the creation or imposition of any Lien on any
of the Station Assets, except for Permitted Liens.
3.5 Absence of Litigation. There is no Action pending or, to
Seller's knowledge, threatened against Seller that in any manner challenges or
seeks to prevent, enjoin, alter or delay materially the transactions
contemplated by this Agreement. Except as disclosed in Schedule 3.5, to the
knowledge of Seller, there are no material Actions outstanding or threatened
that relate to the business or operations of the Stations or the Station Assets.
There are no material Governmental Orders outstanding against Seller that relate
to the business or operations of the Stations or the Station Assets.
3.6 Financial Statements. Seller has delivered to Buyer copies
of the unaudited results of operations of the Stations for calendar years 2002,
2003 and 2004 and the first six months of calendar year 2005 included at
Schedule 3.6 (the "Reference Financial Statements"). The Reference Financial
Statements are derived from the books and records of the Stations and were
prepared in accordance with the internal accounting policies of Infinity
Broadcasting Corporation and Viacom Inc., as applicable to financial reporting
at the radio station level. Except as set forth in the immediately following
sentence, the Reference Financial Statements present fairly, in all material
respects, the results of operations of the Stations for the periods then ended
consistent with the internal accounting policies of Infinity Broadcasting
Corporation and Viacom Inc., as applicable to financial reporting at the radio
station level. Buyer acknowledges that the results of operations for KBAY(FM)
during a portion of 2003 and 2004 include results of operations of both KBAY(FM)
and another radio station in the San Francisco market which was simulcast with
KBAY(FM) and therefore do not reflect the results of operations of KBAY(FM) on a
stand-alone basis during that period.
3.7 Absence of Changes. Except as contemplated or expressly
permitted by this Agreement, since June 30, 2005 there has not been: (a) the
execution of any agreement with any manager or broadcast talent of either of the
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Stations providing for his/her employment, or any increase in compensation or
severance or termination of benefits payable or to become payable by Seller to
any manager or broadcast talent of either of the Stations, or any increase in
benefits under any collective bargaining agreement, except in any case in the
ordinary course of business consistent with prior practice or (b) any change by
Seller in its financial or Tax accounting principles or methods, except insofar
as required by GAAP or applicable law as they relate to the Stations. Since June
30, 2005, Seller has incurred no material liabilities with respect to the
Station Assets other than in the ordinary course of its business.
3.8 FCC Licenses.
(a) Schedule 1.1(a) contains a true and complete list of the
FCC Licenses, which are all of the authorizations Seller is required to hold
under the Communications Act or the rules, regulations and policies of the FCC
for the present operation of the Stations. Seller has provided to Buyer true,
correct and complete copies of the FCC Licenses, including any and all
amendments and modifications thereto. The FCC Licenses were validly issued by
the FCC, are validly held by Seller, are in full force and effect, and have not
been revoked, suspended, canceled, rescinded or terminated and have not expired.
The FCC Licenses have been issued for the full terms customarily issued to radio
broadcast stations in the State of California, and the FCC Licenses are not
subject to any condition except for those conditions that appear on the face of
the FCC Licenses, those conditions applicable to radio broadcast licenses
generally or those conditions disclosed in Schedule 3.8(a).
(b) Except as set forth on Schedule 3.8(b), Seller has no
applications pending before the FCC relating to the operation of the Stations.
(c) Except as set forth on Schedule 3.8(c), Seller has
operated the Stations in compliance with the Communications Act and the FCC
Licenses in all material respects, has filed or made all applications, reports
and other disclosures required by the FCC to be made in respect of the Stations
and has timely paid all FCC regulatory fees in respect thereof.
(d) Except as set forth on Schedule 3.8(d), to the knowledge
of the Seller, there are no petitions, complaints, orders to show cause, notices
of violation, notices of apparent liability, notices of forfeiture, proceedings
or other actions pending or threatened before the FCC relating to the Stations,
other than proceedings affecting the radio broadcast industry generally. There
is not pending or, to the knowledge of the Seller, threatened any action by or
before the FCC to revoke, suspend, cancel or rescind any of the FCC Licenses
(other than proceedings relating to FCC rules of general applicability).
3.9 Personal Property. Schedule 1.1(b) contains a list of all
material items of Tangible Personal Property included in the Station Assets.
Except as disclosed on Schedule 1.1(b), Seller has title to the Tangible
Personal Property free and clear of Liens other than Permitted Liens. The items
of Tangible Personal Property on Schedule 1.1(b) are in good operating
condition, ordinary wear and tear excepted, and are sufficient to permit the
conduct of the business and operation of the Stations in compliance with FCC
rules and regulations as conducted on the date of this Agreement.
3.10 Station Contracts. Each of the Station Contracts
(including each of the Real Property Leases) is in effect and is binding upon
Seller and, to Seller's knowledge, the other parties thereto (subject to
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bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally). Seller has performed
its obligations under each of the Station Contracts in all material respects,
and is not in material default thereunder, and, to Seller's knowledge, no other
party to any of the Station Contracts is in default thereunder in any material
respect. Except as otherwise set forth on Schedule 1.1(c), Seller has provided
to Buyer prior to the date of this Agreement true and complete copies of all
material Station Contracts (including each Real Property Lease).
3.11 Intangible Property. Schedule 1.1(d) contains a
description of all owned and registered Intangible Property, except for such
Intangible Property as has specifically been identified as an Excluded Asset.
Except as set forth on Schedule 1.1(d), Seller has received no notice of any
claim that its use of any material Intangible Property infringes upon or
conflicts with any third party rights, and to Seller's knowledge, none of
Seller's rights with respect to such Intangible Property are being infringed by
any third party. To Seller's knowledge, the operation of the business of the
Stations as presently conducted does not infringe on the intellectual property
rights of any other Person. Seller owns or has the right to use the Intangible
Property free and clear of Liens other than Permitted Liens.
3.12 Real Property. Schedule 1.1(f) contains a list of all
real property used or held for use by Seller primarily in the business and
operation of the Stations. Seller has (or an Affiliate of Seller has now, and
Seller will have on or before Closing) fee simple title to the owned Real
Property ("Owned Real Property") free and clear of Liens other than Permitted
Liens. Schedule 1.1(f) includes a list of each lease, sublease, license or
similar agreement pertaining to any Real Property (the "Real Property Leases").
Seller has good and valid leasehold interest in the Real Property conveyed by
the Real Property Leases. The Owned Real Property includes, and the Real
Property Leases provide, sufficient access to the Stations' facilities. To
Seller's knowledge, the Real Property is not subject to any suit for
condemnation or other taking by any public authority. Seller has received no
notice of default under or termination of any Real Property Leases, and Seller
has no knowledge of any default under any Real Property Lease or of any
circumstance which with the passage of time or notice or otherwise would
constitute a default under any Real Property Lease. Seller has delivered to
Buyer true and correct copies of the Real Property Leases together with all
amendments thereto and a copy of the most recent title insurance commitment for
the Owned Real Property.
3.13 Environmental. Except as set forth on Schedule 1.1(f), to
Seller's knowledge, no hazardous or toxic substance or waste regulated under any
applicable Environmental Law has been generated, stored, transported or released
on, in, from or to the Real Property. Except as set forth on Schedule 1.1(f), to
Seller's knowledge, Seller and its Affiliates have complied in all material
respects with all Environmental Laws applicable to the Stations or any of the
Real Property. No Action is pending or, to the knowledge of Seller, threatened
relating to any of the Real Property alleging the violation of, or seeking to
impose liability on Seller pursuant to, any Environmental Law. Seller has not
received any notice, claim or other communication from any Governmental
Authority or any other Person alleging the violation of, or liability under, any
Environmental Laws. There are no facts, circumstances or conditions associated
with the Real Property or the business or operations thereon known to Seller
that could reasonably be expected to give rise to a material environmental claim
against the Stations or the owners or operators thereof or result in the
Stations or the owners or operators thereof incurring material Environmental
Costs and Liabilities. "Environmental Laws" are those environmental, health or
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safety laws and regulations applicable to Seller's activities at the Stations'
studio or tower sites in effect as of the date of the Closing. "Environmental
Costs and Liabilities" shall mean any losses, including environmental
remediation costs, liabilities, obligations, damages, fines, penalties or
judgments, arising from or under any Environmental Law or order of or agreement
with any Governmental Authority or any other Person.
3.14 Employee Information.
(a) Schedule 3.14(a) contains a true and complete list as of
the date set forth thereon of all the Stations' exclusive employees (those who
perform services solely for the Stations) and the shared employees (those who
perform services for the Stations and other radio stations owned by Seller or
its Affiliates) allocated to the Stations for purposes of this Agreement
(collectively, the "Station Employees"), including the names, date of hire,
current rate of compensation, employment status (i.e., active, disabled, on
authorized leave and reason therefor), title, whether such Station Employee is a
union or non-union employee, whether such Station Employee is full-time,
part-time or per-diem and a general description of benefits, including severance
and vacation benefits, if any. Each Station Employee is employed by Seller or an
Affiliate of Seller.
(b) Seller has complied in all material respects with all
labor and employment laws, rules and regulations applicable to the Stations'
business, including those which relate to wages, hours, discrimination in
employment and collective bargaining, and is not liable for any arrears of wages
or any taxes or penalties for failure to comply with any of the foregoing.
Except as disclosed on Schedule 3.14(b), there is no unfair labor practice
charge or complaint against Seller in respect of the Stations' business pending
or, to the knowledge of the Seller, threatened before any court or Governmental
Authority.
(c) Neither Station is subject to or bound by any labor
agreement or collective bargaining agreement. To the knowledge of Seller, there
is no activity involving any Station Employee seeking to certify a collective
bargaining unit or engaging in any other organization activity.
(d) Seller has not incurred nor reasonably expects to incur
(either directly or indirectly, including as a result of any of the transactions
contemplated hereby or any indemnification obligation) any liability (including
withdrawal liability) that could become a liability of Buyer, under or pursuant
to Title I or IV of the Employment Retirement Income Security Act of 1974, as
amended ("ERISA"), or the penalty, excise tax or joint and several liability
provisions of the Code relating to employee benefit plans, and no event,
transaction or condition has occurred or exists which could result in any such
liability. Seller has made all contributions to all multi-employer plans within
the meaning of Section 3(37) of ERISA. Schedule 3.14(d) lists all "employee
benefit plans" within the meaning of Section 3(3) of ERISA and bonus, pension,
profit sharing, defined benefit, deferred compensation, incentive compensation,
stock ownership, stock purchase, stock option, phantom stock, retirement,
vacation, severance, disability, death benefit, hospitalization, salary
continuation, educational assistance, insurance or other plans, arrangements or
understandings providing benefits to any present or former employee or
contractor of the Stations maintained by Seller or as to which Seller (with
respect to such individuals) has any liability or obligation (collectively,
"Employee Benefit Plans").
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3.15 Compliance with Laws. Seller has complied in all material
respects with all laws, regulations, rules, writs, injunctions, ordinances,
franchises, decrees or orders of any Governmental Authority that are applicable
to the operation of the Stations and the ownership of the Station Assets.
3.16 Taxes. Seller has, in respect of the Stations' business,
filed all material Tax Returns required to have been filed by it under
applicable law and has paid all Taxes which have become due pursuant to such Tax
Returns or pursuant to any assessments which have become payable.
3.17 Sufficiency and Title to Station Assets. Except for the
Excluded Assets, the Station Assets constitute all the assets used or held for
use by Seller primarily in the business or operation of the Stations. Seller, or
an Affiliate of Seller, owns, leases or is licensed to use all of the Station
Assets free and clear of Liens, except for Permitted Liens. Except for the
Excluded Assets, the Station Assets constitute all of the assets, rights and
properties that are required for the business and operation of the Stations as
they are now conducted.
3.18 No Finder. No broker, finder or other person is entitled
to a commission, brokerage fee or other similar payment in connection with this
Agreement, the Seller Ancillary Agreements or the transactions contemplated
hereby or thereby as a result of any agreements or action of Seller or any party
acting on Seller's behalf.
ARTICLE IV
COVENANTS
4.1 Governmental Approvals.
(a) FCC Application. The assignment of the FCC Licenses as
contemplated by this Agreement is subject to the prior consent and approval of
the FCC. Within one (1) Business Day of receipt by Seller of the LC Issuance
Notice, Buyer and Seller shall file the FCC Application. Seller and Buyer shall
thereafter prosecute the FCC Application with all commercially reasonable
diligence and otherwise use commercially reasonable efforts to obtain the FCC
Consent as expeditiously as practicable. Each party shall promptly provide the
other with a copy of any pleading, order or other document served on it or
relating to the FCC Application, and shall furnish all information required by
the FCC.
(b) Compliance with HSRA. Each party shall make on the date of
this Agreement, all filings which are required in connection with the
transactions contemplated hereby under the HSRA (including making a request for
early termination of the waiting period thereunder), and shall furnish to the
other party all information that the other reasonably requests in connection
with such filings. The consummation of the transactions contemplated by this
Agreement and the commencement of the Local Marketing Agreement are each
conditioned upon the termination or expiration of the waiting period under the
HSRA without the institution or threat of any action with respect to such
consummation or commencement.
(c) Governmental Filing or Grant Fees. Except as otherwise
provided in this Agreement, any filing or grant fees (including FCC and HSRA
filing fees) imposed by any Governmental Authority, the consent of which is
required for the transactions contemplated hereby, shall be borne equally by
Seller and Buyer. In addition, Seller and Buyer shall bear equally any fees
16
incurred by Seller in the publication of the requisite local public notice
regarding the FCC Application under Section 73.3580(d)(3) of the FCC's rules.
4.2 Conduct of Business.
(a) Prior to Closing. Between the date of this Agreement and
the Closing Date, except as expressly permitted by this Agreement or the Local
Marketing Agreement, or with the prior written consent of Buyer, Seller shall:
(i) maintain the FCC Licenses in full force and effect;
(ii) operate the Stations in all material respects in
accordance with the FCC Licenses, the Communications Act, the FCC
rules and regulations and all applicable Laws; and
(iii) not materially adversely modify any of the FCC
Licenses.
(b) Prior to Effectiveness of Local Marketing Agreement.
Between the date of this Agreement and the Commencement Date (as defined in the
Local Marketing Agreement), except as expressly permitted by this Agreement or
the Local Marketing Agreement, or with the prior written consent of Buyer,
Seller shall:
(i) operate the Stations in the ordinary course of
business consistent with past practice;
(ii) not make any changes to the format of either of the
Stations;
(iii) use commercially reasonable efforts to preserve the
business and goodwill of the Stations and the Station Assets,
including using commercially reasonable efforts to preserve
relationships with advertisers, customers, suppliers, employees,
contracting parties and others having business relations with Seller
with respect to the Stations;
(iv) maintain the Tangible Personal Property and the Real
Property in normal operating condition consistent with Seller's past
practices, ordinary wear and tear excepted;
(v) maintain the Stations' inventories of spare parts and
expendable supplies at levels in the ordinary course of business
consistent with past practice;
(vi) not sell, lease or dispose of or agree to sell, lease
or dispose of any of the Station Assets, except (A) the ordinary
course disposition of items that either are obsolete or unnecessary
for the continued operation of the Stations as currently operated or
are replaced by assets of comparable or superior utility or (B)
pursuant to existing contracts or commitments listed on Schedule
1.1(c), if any, or agree to do any of the foregoing;
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(vii) neither amend, terminate or waive any material
rights under any of the Station Contracts other than in the ordinary
course of business, nor enter into any new Station Contract that is
outside of the ordinary course of business or that involves (A) a
post-Closing term of more than one year or (B) a post-Closing expense
to Buyer in excess of $100,000 in the aggregate for all such new
Station Contracts, or agree to do any of the foregoing;
(viii) deliver to Buyer copies of monthly internal
operating statements for the Stations by the 20th day after the end
of each calendar month, which shall be prepared consistent with the
Reference Financial Statements for the first six months of 2005; and
(ix) with respect to Station Employees, not (w) grant
raises other than raises that would be given in the ordinary course
of business consistent with past practice in connection with the
October 1st focal point review, (x) pay substantial bonuses other
than (A) stay bonuses for which the Buyer has no liability or (B)
bonuses contemplated under existing employee arrangements, (y) enter
into any new employment agreements that are not terminable at will or
(z) agree to do any of the foregoing.
(c) Control of Stations. Subject to the provisions of this
Section 4.2 and the terms of the Local Marketing Agreement, Buyer shall not,
directly or indirectly, control, supervise or direct the operations of the
Stations prior to the Closing. Such operations shall be the sole responsibility
of Seller and shall be in its complete discretion.
4.3 Access to Information; Inspections; Confidentiality;
Publicity.
(a) Between the date hereof and the Closing Date, Seller shall
furnish Buyer with such information relating to the Station Assets as Buyer may
reasonably request, at Buyer's expense and provided such request does not
interfere unreasonably with the business of the Stations.
(b) Between the date hereof and the Closing Date, upon prior
reasonable notice, Seller shall give Buyer and its representatives reasonable
access to the Station Assets during regular business hours. Buyer, at its sole
expense, shall be entitled to make such engineering and other inspections,
including a Phase I environmental assessment, of the Station Assets as Buyer may
desire, so long as such inspections do not unreasonably interfere with the
operation of the Stations.
(c) Nothing contained herein should be deemed to negate or
limit the Seller's or any of its Affiliates' rights or any obligations of the
Buyer or any of its Affiliates under that certain letter agreement, dated as of
March 16, 2005, by and between Infinity Broadcasting Corporation and NextMedia
Group, Inc. (the "Confidentiality Agreement"), which is incorporated herein by
reference; provided, that Buyer may disclose historical financial results for
the Stations in connection with earnings calls and as otherwise may be required
by law.
(d) No news release or other public announcement pertaining to
the transactions contemplated by this Agreement will be made by or on behalf of
any party hereto without the prior written approval of the other party (such
consent not to be unreasonably withheld or delayed) unless otherwise required by
Law or any regulation or rule of any stock exchange binding upon such party. In
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no event shall either party make any news release or other public announcement
(other than the filing of the FCC Application) prior to Seller's receipt of the
LC Issuance Notice. Each of Buyer and Seller agree to respond to any request for
approval as to any news release or public announcement of the other party within
three (3) Business Days of such request. Where any announcement, communication
or circular concerning the transactions contemplated by this Agreement is
required by Law or any regulation or rule of any stock exchange, it shall be
made by the relevant party after consultation, where reasonably practicable,
with the other party and taking into account the reasonable requirements (as to
timing, contents and manner of making or dispatch of the announcement,
communication or circular) of the other party.
4.4 Risk of Loss. Except as otherwise provided in the Local
Marketing Agreement, Seller shall bear the risk of any casualty loss or damage
to any of the Station Assets prior to the Effective Time. Seller shall be
responsible for repairing or replacing (as appropriate under the circumstances)
any lost or damaged Station Asset (the "Damaged Asset"). If Seller is unable to
repair or replace a Damaged Asset by the date on which the Closing would
otherwise occur under this Agreement, then the proceeds of any insurance
covering such Damaged Asset shall be assigned to Buyer at Closing, and to the
extent such proceeds are not sufficient to cover the reasonable out-of-pocket
costs incurred by Buyer in repairing or replacing the Damaged Asset after the
Closing, Seller shall reimburse Buyer by an amount equal to the deficiency.
4.5 Consents to Assignment; Estoppel Certificates. After the
execution of this Agreement and prior to Closing, Seller shall use its
commercially reasonable efforts to obtain (i) any third-party consents necessary
for the assignment of any Station Contract or Real Property Lease and (ii)
estoppel certificates duly executed by the lessors under the Real Property
Leases in the form of Exhibit B attached hereto (the "Estoppel Certificates").
Notwithstanding anything in this Agreement to the contrary, this Agreement shall
not constitute an agreement to assign any Station Contract or any claim or right
or any benefit arising thereunder or resulting therefrom if such assignment,
without the consent of a third party thereto, would constitute a breach or other
contravention of such Station Contract or in any way adversely affect the rights
of Buyer or Seller thereunder. If such consent is not obtained prior to the
Closing Date, Seller shall use its commercially reasonable efforts to (a) obtain
such consent as soon as possible after the Closing Date, (b) provide to Buyer
the financial and business benefits of any such Station Contract and (c)
enforce, at the request of Buyer, for the account of Buyer, any rights of Seller
arising from any such Station Contract. Notwithstanding the foregoing, neither
Seller nor any of its Affiliates shall be required to pay consideration to any
third party to obtain any consent or Estoppel Certificate. Nothing contained
herein shall be deemed to limit Buyer's rights under Section 5.1(e).
4.6 Notification. Each party shall notify the other party of
the initiation or threatened initiation of any litigation, arbitration or
administrative proceeding that challenges the transactions contemplated hereby,
including any challenges to the FCC Application.
4.7 Employee Matters.
(a) Except to the extent Operating has previously offered
employment to Station Employees under the Local Marketing Agreement, and except
as set forth on Schedule 4.7, Operating shall offer employment to each Station
Employee who is employed immediately prior to the Effective Time and who is not
on authorized leave of absence, sick leave, short or long term disability leave,
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military leave or layoff with recall rights. For the purposes hereof, all
Station Employees who accept Operating's offer of employment (either pursuant to
the Local Marketing Agreement or pursuant to this Section 4.7) are hereinafter
referred to collectively as the "Transferred Employees," and the "Employment
Commencement Date" as referred to herein shall mean (i) as to those Transferred
Employees hired pursuant to the Local Marketing Agreement, the LMA Effective
Time (as defined in the Local Marketing Agreement) and (ii) as to those
Transferred Employees hired pursuant to this Section 4.7, the Effective Time.
Operating shall employ at-will those Transferred Employees who do not have
employment agreements with the Seller at the same monetary compensation as such
employees are currently earning. The initial terms and conditions of employment
for those Transferred Employees who have employment agreements, including
account executive agreements and bonus term sheets, with the Seller shall be
dictated by such employment agreements. Operating may modify, alter or terminate
any of the terms and conditions of employment of the Transferred Employees.
Nothing in this Agreement shall prevent Operating from terminating the
employment of any Transferred Employee at any time after the Closing Date.
(b) To the extent permitted under Buyer's plans and subject to
the requirements of Buyer's plan administrator, (i) Buyer shall cause all
Transferred Employees to be eligible to participate in its "employee welfare
benefit plans" (as defined in Section 3(1) of ERISA) and its "defined
contribution plans" (as defined in Section 414(i) of the Code) to the extent
Buyer's similarly-situated employees are generally eligible to participate, (ii)
all Transferred Employees and their spouses and dependents shall be eligible for
coverage immediately after the Employment Commencement Date (and shall not be
excluded from coverage under any employee welfare benefit plan that is a group
health plan on account of any pre-existing condition, as long as such condition
was covered under Buyer's group health plan), (iii) for purposes of any length
of service requirements, waiting periods, vesting periods or differential
benefits based on length of service in any such employee welfare benefit plans
(including any severance plans or policies) and defined contribution plans for
which Transferred Employees may be eligible after Closing, Buyer shall ensure,
to the extent permitted by applicable Law (including ERISA and the Code), that
service with Seller (as shown on Schedule 3.14(a)) shall be deemed to have been
service with Buyer, (iv) Buyer shall cause its defined contribution plans to
accept rollover contributions from the Transferred Employees of any account
balances distributed to them by the Seller's 401(k) plan or any 401(k) plan of
Seller's Affiliates and (v) Buyer shall allow any such Transferred Employee's
outstanding plan loan to be rolled into Buyer's defined contribution plans. The
distribution and rollover described herein shall comply with applicable Law, and
each party shall make all filings and take any actions required of such party by
applicable Law in connection therewith. Buyer also shall ensure, to the extent
permitted by applicable Law (including ERISA and the Code) and/or Buyer's plans,
that Transferred Employees receive credit under any welfare benefit plan of
Buyer for any deductibles or co-payments paid by Transferred Employees and their
spouses and dependents for the current plan year under a plan maintained by
Seller.
(c) Notwithstanding any other provision contained herein,
Buyer shall grant credit for all unused sick leave accrued by Transferred
Employees on the basis of their service during the current calendar year as
employees of Seller.
(d) Provided that Buyer receives an appropriate proration
under Section 1.7, Buyer will assume all liabilities for unpaid, accrued
vacation and personal days of Transferred Employees as of the Effective Time
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("Accrued Vacation"), and shall permit Transferred Employees to use their
Accrued Vacation entitlement until twelve (12) months from the Effective Time.
Buyer will pay any Transferred Employee to the extent that such Transferred
Employee has any unused Accrued Vacation at the end of such twelve (12) month
period. Service with both Buyer and Seller (as shown on Schedule 3.14(a)) shall
be taken into account in determining Transferred Employees' vacation entitlement
under the Buyer's vacation policy after the Effective Time. Except as prohibited
by applicable Law, after the Closing Seller shall deliver to Buyer originals or
copies of all personnel files and records (excluding medical and benefit plan
records) related to the Transferred Employees, and Seller shall have reasonable
continuing access to such files and records thereafter.
4.8 Title Insurance; Surveys. Seller shall cooperate with
Buyer (provided that Seller shall not be required to pay any consideration to
Buyer or any third party) so that Buyer can promptly obtain, at Buyer's sole
cost and expense:
(a) a title commitment to issue an ALTA extended coverage
title insurance policy insuring the fee simple interest in the Owned Real
Property, subject only to Permitted Liens and those matters set forth in
Schedule 4.8; and
(b) an ALTA survey of the Owned Real Property as of a date
subsequent to the date hereof which shall reflect (i) no encroachments upon such
parcels or adjoining parcels by buildings, structures or improvements which
would materially adversely effect title or materially interfere with or impair
the use of the Owned Real Property for the purpose for which it is currently
used and (ii) access to such parcels from a public street or indirect access to
a public street.
4.9 Environmental. Buyer may at its expense conduct
environmental reviews of the Owned Real Property prior to Closing; provided,
however, that no intrusive sampling shall be performed without Seller's prior
written approval (which shall not be unreasonably withheld). If any such
environmental review discloses a material violation of, or material condition
requiring remediation under, applicable Environmental Laws at any of the Owned
Real Property (an "Environmental Condition") and such Environmental Condition
has an estimated remediation cost less than $500,000, then Seller shall
remediate or undertake to remediate such condition in all material respects
prior to Closing, provided that the completion of such remediation shall not be
a condition to Buyer's obligation to close hereunder. If such Environmental
Condition has an estimated remediation cost of $500,000 or more, then within ten
(10) Business Days after delivery to Seller of such environmental assessment,
Seller shall notify Buyer of its election to either (i) remediate or undertake
to remedy such condition in all material respects prior to Closing, provided
that the completion of such remediation shall not be a condition to Buyer's
obligation to close hereunder, or (ii) not remediate or undertake to remedy such
condition, in which event Buyer may terminate this Agreement on written notice
to Seller.
4.10 Intercompany Assignments. Seller agrees that any Station
Assets currently owned by or held for use by any Affiliate of Seller shall be
transferred to Seller prior to the Closing.
4.11 Audit. In the event Buyer establishes to Seller's
reasonable satisfaction that due to regulations of the Securities and Exchange
Commission it is necessary for Buyer to have audited statements of income
("Additional Financial Statements") for the Stations for the fiscal years ended
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December 31, 2004 and/or December 31, 2003, Buyer shall so notify Seller and
Seller shall reasonably cooperate with Buyer in connection with the preparation
of such Additional Financial Statements. KPMG, or such other independent auditor
acceptable to Seller ("Auditor"), shall be asked to perform the audit of such
Additional Financial Statements and deliver its report thereon addressed to
Buyer. Buyer shall promptly pay all fees, costs and expenses of the Auditor in
connection with the Additional Financial Statements. Buyer acknowledges and
agrees that in no event shall the preparation and/or receipt of the Additional
Financial Statements constitute a condition to the Closing or to Buyer's
obligations under this Agreement, nor shall Seller be deemed to have made any
representation or warranty with respect thereto.
4.12 Further Assurances. After Closing, each party hereto
shall execute all such instruments and take all such actions as any other party
may reasonably request, without payment of further consideration, to effectuate
the transactions contemplated by this Agreement, including the execution and
delivery of confirmatory and other transfer documents in addition to those to be
delivered at Closing.
ARTICLE V
CONDITIONS PRECEDENT
5.1 To Buyer's Obligations. The obligations of Buyer hereunder
are, at its option, subject to satisfaction, at or prior to the Closing Date, of
each of the following conditions:
(a) Representations, Warranties and Covenants. The
representations and warranties of Seller made in this Agreement qualified as to
materiality or Seller Material Adverse Effect shall be true and correct in all
respects, and the representations and warranties of Seller made in this
Agreement not qualified as to materiality or Seller Material Adverse Effect
shall be true and correct in all material respects, (A) as of the date of this
Agreement and (B) (except to the extent such representations and warranties
speak as of an earlier date, in which case such representations and warranties
qualified as to materiality or Seller Material Adverse Effect shall have been
true and correct in all respects, and such representations and warranties not
qualified as to materiality or Seller Material Adverse Effect shall have been
true and correct in all material respects, as of such earlier date) as of the
Closing Date as though made on and as of the Closing Date, except, as to clause
(B) above, (i) for changes expressly contemplated by this Agreement or permitted
under Section 4.2 (Conduct of Business Prior to Closing) or (ii) casualty losses
or damages subject to Section 4.4 (Risk of Loss). Seller shall have performed in
all material respects all obligations required to be performed by it under this
Agreement on or prior to the Closing Date. Buyer shall have received a
certificate dated as of the Closing Date from Seller, executed by an authorized
officer of Seller to the effect that the conditions set forth in this Section
5.1(a) have been satisfied.
(b) Governmental Consents. The FCC Consent shall have been
granted and shall be in full force and effect and shall contain no provision
materially adverse to any of Buyer, Buyer's Affiliates or the Stations. Buyer
acknowledges that Buyer's obligation to consummate the transactions contemplated
by this Agreement is not subject to the condition that the FCC Consent shall
have become a Final Order. Any waiting period under the HSRA shall have been
terminated or expired.
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(c) Adverse Proceedings. No suit, action, claim or
governmental proceeding shall be pending against, and no order, decree or
judgment of any Governmental Authority shall have been rendered against, any
party hereto that would render it unlawful, as of the Closing Date, to effect
the transactions contemplated by this Agreement in accordance with its terms.
(d) Authorization. Buyer shall have received a true and
complete copy, certified by an officer of Seller, of the resolutions duly and
validly adopted by the Board of Directors of Seller evidencing its authorization
of the execution and delivery of this Agreement and consummation of the
transactions contemplated hereby.
(e) Consent. Seller shall have delivered to Buyer any required
consent to the assignment of the Real Property Leases identified on Schedule
5.1(e).
(f) Deliveries. Seller shall have made or stand willing to
make all the deliveries required under Sections 6.1 and 6.2.
5.2 To Seller's Obligations. The obligations of Seller
hereunder are, at its option, subject to satisfaction, at or prior to the
Closing Date, of each of the following conditions:
(a) Representations, Warranties and Covenants. The
representations and warranties of Operating made in this Agreement qualified as
to materiality shall be true and correct in all respects, and the
representations and warranties of Operating made in this Agreement not qualified
as to materiality shall be true and correct in all material respects, (A) as of
the date of this Agreement and (B) (except to the extent such representations
and warranties speak as of an earlier date, in which case such representations
and warranties qualified as to materiality shall have been true and correct in
all respects, and such representations and warranties not qualified as to
materiality shall have been true and correct in all material respects, as of
such earlier date) as of the Closing Date as though made on and as of the
Closing Date except, as to clause (B) above, for changes expressly contemplated
by this Agreement. Buyer shall have performed in all material respects all
obligations required to be performed by it under this Agreement on or prior to
the Closing Date. Seller shall have received a certificate dated as of the
Closing Date from Buyer executed by an authorized officer of Buyer, to the
effect that the conditions set forth in this Section 5.2(a) have been satisfied.
(b) Governmental Consents. The FCC Consent shall have been
granted and shall be in full force and effect and shall contain no provision
materially adverse to Seller or Seller's Affiliate. Seller acknowledges that
Seller's obligation to consummate the transactions contemplated by this
Agreement is not subject to the condition that the FCC Consent shall have become
a Final Order. Any waiting period under the HSRA shall have been terminated or
expired.
(c) Adverse Proceedings. No suit, action, claim or
governmental proceeding shall be pending against, and no order, decree or
judgment of any Governmental Authority shall have been rendered against any
party hereto that would render it unlawful, as of the Closing Date, to effect
the transactions contemplated by this Agreement in accordance with its terms.
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(d) Authorization. Seller shall have received a true and
complete copy, certified by an officer of Buyer, of the resolutions duly and
validly adopted by the Board of Directors of Buyer evidencing its authorization
of the execution and delivery of this Agreement and consummation of the
transactions contemplated hereby.
(e) Deliveries. Buyer shall have made or stand willing to make
all the deliveries required under Sections 6.1 and 6.3 and shall have paid or
stand willing to pay the Purchase Price as provided in Section 1.5.
ARTICLE VI
DOCUMENTS TO BE DELIVERED AT THE CLOSING
6.1 Documents to be Delivered by Both Parties. At the Closing,
each of Buyer and Seller shall execute and deliver to the other as applicable:
(a) a duly executed Assignment and Assumption Agreement,
substantially in the form of Exhibit C-1;
(b) a duly executed Assignment and Assumption Agreement for
the Real Property Leases, substantially in the form of Exhibit C-2; and
(c) written instructions to the Escrow Agent instructing the
Escrow Agent to return the Letter of Credit to Buyer.
6.2 Documents to be Delivered by Seller. At the Closing,
Seller shall deliver to Buyer the following:
(a) the certificate described in Section 5.1(a);
(b) the documents described in Section 5.1(d);
(c) a duly executed Xxxx of Sale, substantially in the form of
Exhibit C-3;
(d) a duly executed Assignment for the FCC Licenses,
substantially in the form of Exhibit C-4;
(e) a duly executed Assignment for the Intangible Property,
substantially in the form of Exhibit C-5;
(f) a duly executed California Grant Deed for the Owned Real
Property, substantially in the form of Exhibit C-6, together with a customary
owner's affidavit, gap indemnity, FIRPTA and any applicable transfer tax forms;
(g) any Estoppel Certificates or consents obtained by Seller;
and
(h) endorsed vehicle titles conveying the owned vehicles
included in the Tangible Personal Property (except to the extent previously
conveyed under the Local Marketing Agreement).
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6.3 Documents to be Delivered by Buyer. At the Closing, Buyer
shall deliver to Seller the following:
(a) the certificate described in Section 5.2(a);
(b) the documents described in Section 5.2(d); and
(c) the Purchase Price.
ARTICLE VII
SURVIVAL; INDEMNIFICATION
7.1 Survival. The representations and warranties in this
Agreement shall survive the Closing for a period of twelve (12) months from the
Closing Date whereupon they shall expire and be of no further force or effect,
except those under: (i) Section 3.16 (Taxes), which shall survive until the
expiration of any applicable statute of limitations (ii) Section 2.8 and 3.18
(No Finder), each of which shall survive indefinitely, (iii) the provisions in
Sections 3.8, 3.9, 3.12 and 3.17 relating to title, each of which shall survive
indefinitely, and (iv) any other section for which written notice is given by
the indemnified party to the indemnifying party prior to the expiration, which
shall survive until resolved. Unless a specified period is set forth in this
Agreement (in which event such specified period will control), the covenants in
this Agreement will survive the Closing and remain in effect indefinitely. No
claim may be brought under this Agreement unless written notice describing in
reasonable detail the nature and basis of such claim is given on or prior to the
last day of the applicable survival period. In the event such notice is given,
the right to indemnification with respect thereto shall survive the applicable
survival period until such claim is finally resolved and any obligations thereto
are fully satisfied.
7.2 Indemnification.
(a) Subject to Section 7.1 and the Local Marketing Agreement,
from and after the Effective Time, Seller shall defend, indemnify and hold
harmless Buyer, its Affiliates and their respective employees, officers,
directors, shareholders and agents (collectively, the "Buyer Indemnified
Parties") from and against any and all losses, costs, damages, liabilities,
expenses, obligations and claims of any kind (including any Action brought by
any Governmental Authority or Person and including reasonable attorneys' fees
and expenses ("Losses")) incurred by such Buyer Indemnified Party arising out of
or resulting from (i) Seller's breach of any of the representations or
warranties contained in this Agreement, any Seller Ancillary Agreement or in any
other certificate or document delivered pursuant hereto or thereto; (ii) any
breach or nonfulfillment of any agreement or covenant of Seller under the terms
of this Agreement or any Seller Ancillary Agreement; (iii) any failure to comply
with any "bulk sales" laws applicable to the transactions contemplated hereby;
and (iv) the Retained Liabilities. Seller shall have no liability to Buyer under
clause (i) of this Section 7.2(a) until, and only to the extent that, Buyer's
aggregate Losses exceed $2,000,000, and the maximum liability of Seller under
clause (i) of this Section 7.2(a) shall be an amount equal to $20,000,000.
(b) Subject to Section 7.1 and the Local Marketing Agreement,
from and after the Effective Time, Operating shall defend, indemnify and hold
harmless Seller, its Affiliates and their respective employees, officers,
directors, shareholders and agents (collectively, the "Seller Indemnified
Parties") from and against any and all Losses incurred by such Seller
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Indemnified Party arising out of or resulting from (i) Buyer's breach of any of
its representations or warranties contained in this Agreement, any Buyer
Ancillary Agreement or in any other certificate or document delivered pursuant
hereto or thereto; (ii) any breach or nonfulfillment of any agreement or
covenant of Buyer under the terms of this Agreement or any Buyer Ancillary
Agreement; and (iii) the Assumed Obligations. Operating shall have no liability
to Seller under clause (i) of this Section 7.2(b) until, and only to the extent
that, Seller's aggregate Losses exceed $2,000,000, and the maximum liability of
Operating under clause (i) of this Section 7.2(b) shall be an amount equal to
$20,000,000.
7.3 Procedures. The indemnified party shall give prompt
written notice 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 (a "Claim"),
but a failure to give or a delay in giving 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, except to the extent the
indemnifying party's ability to remedy, contest, defend or settle with respect
to such Claim is thereby prejudiced. The obligations and liabilities of the
parties with respect to any Claim shall be subject to the following additional
terms and conditions:
(a) 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.
(b) In the event that the indemnifying party shall elect not
to undertake such defense or opposition, or, within twenty (20) days after
written notice (which shall include sufficient description of background
information explaining the basis for such Claim) of any such Claim from the
indemnified party, the indemnifying party shall fail to undertake 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).
(c) Anything herein to the contrary notwithstanding (i) 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,
(ii) the indemnifying party shall not, without the indemnified party's written
consent, settle or compromise any Claim or consent to entry of any judgment,
unless (x) the indemnifying party pays all amounts in full and (y) such
judgment, settlement or compromise includes the giving by the claimant to the
indemnified party of a release from all liability in respect of such Claim, and
(iii) 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 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.
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7.4 Sole Remedy. After the Closing, the right to indemnification under this
Article VII shall be the exclusive remedy of any party in connection with any
breach or default by another party under this Agreement, any Buyer Ancillary
Agreement or any Seller Ancillary Agreement, except that any action for fraud in
the inducement shall not be subject to the dollar threshold and caps set forth
in Sections 7.2(a) and 7.2(b). Neither party shall have any liability to the
other party under any circumstances for special, consequential, punitive or
exemplary damages, unless such special, consequential, punitive or exemplary
damages are included in any Governmental Order entered against the indemnified
party arising out of a claim by a third party against the indemnified party for
which the indemnified party may seek indemnification pursuant to this Article
VII.
ARTICLE VIII
TERMINATION RIGHTS
8.1 Termination.
(a) This Agreement may be terminated prior to Closing by
either Buyer or Seller upon written notice to the other following the occurrence
of any of the following:
(i) if the other party is in material breach or default of
this Agreement or does not perform in all material respects the
obligations to be performed by it under this Agreement on the Closing
Date such that the conditions set forth in Sections 5.1(a) and
5.2(a), as applicable, would not be satisfied and such breach or
default has not been waived by the party giving such termination
notice;
(ii) if there shall be any Law that prohibits consummation
of the sale of the Stations or if a Governmental Authority of
competent jurisdiction shall have issued a final, nonappealable
Government Order enjoining or otherwise prohibiting consummation of
the sale of the Stations;
(iii) if the FCC denies the FCC Application;
(iv) if the Closing has not occurred by June 30, 2006 (the
"Upset Date");
(v) as provided by Section 1.5 (Purchase Price) or Section
4.9 (Environmental); or
(vi) if the Local Marketing Agreement has been terminated,
other than as a result of a breach or default thereunder by the party
seeking to terminate this Agreement.
(b) This Agreement may be terminated prior to Closing by
mutual written consent of Buyer and Seller.
(c) If either party believes the other to be in breach or
default of this Agreement, the non-defaulting party shall, prior to exercising
its right to terminate under Section 8.1(a)(i), provide the defaulting party
with notice specifying in reasonable detail the nature of such breach or
default. Except for a failure to pay the Purchase Price, the defaulting party
27
shall have twenty (20) days from receipt of such notice to cure such default;
provided, however, that if the breach or default is incapable of cure within
such 20-day period, the cure period shall be extended as long as the defaulting
party is diligently and in good faith attempting to effectuate a cure. Nothing
in this Section 8.1(c) shall be interpreted to extend the Upset Date.
(d) If this Agreement is terminated under the provisions of
this Article VIII for any reason other than by Seller pursuant to Section 8.1(a)
due to Buyer's material default or breach of this Agreement, then the Letter of
Credit shall be returned to Buyer by the Escrow Agent and Seller shall cooperate
with Buyer in causing the Escrow Agent to deliver the Letter of Credit to Buyer.
(e) If this Agreement is terminated by Seller pursuant to
Section 8.1(a) due to Buyer's material default or breach of this Agreement, then
Seller shall be entitled to the Letter of Credit Proceeds as liquidated damages.
Seller shall, in addition, be entitled to prompt payment from Buyer of the
reasonable attorney's fees actually incurred by Seller in enforcing its rights
under this Agreement. The parties understand and agree that the amount of
liquidated damages represents Seller's and Buyer's reasonable estimate of actual
damages and does not constitute a penalty. Notwithstanding any other provision
of this Agreement to the contrary, in the event that Seller terminates this
Agreement pursuant to Section 8.1(a), the payment the Letter of Credit Proceeds,
together with any attorney's fees, pursuant to this Section 8.1(e), shall be
Seller's sole and exclusive remedy for damages of any nature or kind that Seller
may suffer as a result of Buyer's breach or default under this Agreement.
8.2 Effect of Termination. In the event of a valid termination
of this Agreement pursuant to Section 8.1, this Agreement (other than Sections
4.3(c) and (d), this Article VIII and Sections 11.1, 11.2, 11.3, 11.4, 11.5,
11.7 and 11.8, which shall remain in full force and effect) shall forthwith
become null and void, and no party hereto (nor any of their respective
Affiliates, directors, officers or employees) shall have any liability or
further obligation, except as provided in this Article VIII; provided, however,
that nothing in this Section 8.2 shall (subject to the limitations in Section
8.1(e)) relieve any party from liability for any breach of this Agreement prior
to termination. A termination of this Agreement shall not terminate the Local
Marketing Agreement nor affect the parties rights and obligations thereunder.
ARTICLE IX
TAX MATTERS
9.1 Bulk Sales. Buyer hereby, subject to the indemnification
obligation of Seller in Section 7.2(a)(iii), waives compliance with the
provisions of any applicable bulk sales law.
9.2 Transfer Taxes. All Transfer Taxes arising out of or in
connection with the transactions effected pursuant to this Agreement shall be
paid one half by Seller and one half by Buyer. The party that has the primary
responsibility under applicable Law for the payment of any particular Transfer
Tax shall prepare and file the relevant Tax Return and notify the other party in
writing of the Transfer Taxes shown on such Tax Return. The other party shall
pay the first party an amount equal to one-half of such Transfer Taxes in
immediately available funds no later than the date that is the later of (i) five
(5) Business Days after the date of such notice or (ii) two (2) Business Days
28
prior to the due date for such Transfer Taxes. The first party shall promptly
remit the Transfer Taxes to the proper Governmental Authority.
ARTICLE X
SPECIFIC PERFORMANCE
10.1 Specific Performance. In addition to any other remedies
that Buyer may have at Law or in equity, Seller hereby acknowledges that the
Station Assets are unique, and that the harm to Buyer resulting from a breach by
Seller of its obligations to sell the Station Assets to Buyer cannot be
adequately compensated by damages. Accordingly, Seller agrees that Buyer shall
have the right to have this Agreement specifically performed by Seller and
hereby agrees not to assert any objections to the imposition of the equitable
remedy of specific performance by any court of competent jurisdiction.
ARTICLE XI
OTHER PROVISIONS
11.1 Expenses. Except as otherwise provided herein or in the
Local Marketing Agreement, each party shall be solely responsible for and shall
pay all costs and expenses incurred by it in connection with the negotiation,
preparation and performance of and compliance with the terms of this Agreement.
11.2 Benefit and Assignment.
(a) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
Neither party may assign its rights under this Agreement without the other
party's prior written consent, which consent may not be unreasonably withheld or
delayed; provided that Seller may, at its option, assign this Agreement (in
whole or part) and assign and transfer the Station Assets (in whole or part) to
a trustee to hold and operate pursuant to a trust agreement, provided (i) such
trustee assumes Seller's duties and obligations hereunder, (ii) such assignment
shall not relieve Seller of its duties hereunder and (iii) Seller shall
guarantee each of the duties and obligations of such assignee.
(b) Notwithstanding anything above to the contrary, either
Buyer or Seller may, without the other party's consent, (i) assign any or all of
its rights and obligations under this Agreement to an Affiliate, provided that
such assignment does delay the receipt of the FCC Consent or the Closing and the
assigning party is not relieved of liability under this Agreement, or (ii)
assign any or all of its rights but not its obligations under this Agreement to
any "qualified intermediary" as defined in Treas. Reg. Sec. 1.1031(k)1(g)(4) or
to any exchange accommodation titleholder as described in Revenue Procedure
2000-37 ("EAT") (but any such assignment shall not relieve a party of its
obligations under this Agreement), provided that such assignment does not delay
the Closing. If Buyer or Seller gives notice of an assignment pursuant to this
Section 11.2(b), the other party shall cooperate with all reasonable requests of
Buyer or Seller, as the case may be, and the qualified intermediary or EAT in
arranging and effecting the deferred like-kind exchange as one which qualifies
under Section 1031 of the Code. Without limiting the generality of the
foregoing, Buyer or Seller, as the case may be, shall provide the other party
with a written acknowledgement of such notice prior to Closing, Buyer shall pay
the Purchase Price (or such portion thereof as is designated in writing by the
qualified intermediary) to or on behalf of the qualified intermediary at Closing
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and Seller shall convey the Station Assets (or such portion thereof as is
designated in writing by the qualified intermediary) to or on behalf of the
qualified intermediary at Closing.
11.3 No Third Party Beneficiaries. Except as set forth in
Section 7.2(a) and 7.2(b), nothing herein, express or implied, shall be
construed to confer upon or give to any other Person other than the parties
hereto or their permitted successors or assigns, any rights or remedies under or
by reason of this Agreement.
11.4 Entire Agreement; Waiver; Amendment. This Agreement, the
Confidentiality Agreement, the Buyer Ancillary Agreements, the Seller Ancillary
Agreements and the exhibits and schedules hereto and thereto constitute the
entire agreement of the parties hereto with respect to the subject matter hereof
and thereof and supersede all prior agreements and undertakings, both written
and oral, between Seller and Buyer with respect to the subject matter hereof and
thereof, except as otherwise expressly provided herein. Any matter that is
disclosed in a schedule hereto in such a way as to make its relevance to the
information called for by another schedule readily apparent shall be deemed to
have been included in such other schedule, notwithstanding the omission of an
appropriate cross reference. No amendment, waiver of compliance with any
provision or condition hereof, or consent pursuant to this Agreement shall be
effective unless evidenced by an instrument in writing signed by the party
against whom enforcement of any waiver, amendment, change, extension or
discharge is sought. No failure or delay on the part of Buyer or Seller in
exercising any right or power under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power.
11.5 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.
11.6 Computation of Time. If after making computations of time
provided for in this Agreement, a time for action or notice falls on Saturday,
Sunday or a Federal holiday, then such time shall be extended to the next
Business Day.
11.7 Governing Law; Waiver of Jury Trial. The construction and
performance of this Agreement shall be governed by the law of the State of New
York without regard to its principles of conflict of law. The exclusive forum
for the resolution of any disputes arising hereunder shall be the federal or
state courts located in New York County, New York, and each party irrevocably
waives the reference of an inconvenient forum to the maintenance of any such
action or proceeding. BUYER AND SELLER HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING IN ANY WAY TO
THIS AGREEMENT, INCLUDING ANY COUNTERCLAIM MADE IN SUCH ACTION OR PROCEEDING,
AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE DECIDED SOLELY BY A JUDGE.
Buyer and Seller hereby acknowledge that they have each been represented by
counsel in the negotiation, execution and delivery of this Agreement and that
their lawyers have fully explained the meaning of the Agreement, including in
particular the jury-trial waiver.
30
11.8 Construction. Any question of doubtful interpretation
shall not be resolved by any rule providing for interpretation against the party
who causes the uncertainty to exist or against the drafter of this Agreement.
11.9 Notices. Any notice, demand or request required or
permitted to be given under the provisions of this Agreement shall be in
writing, addressed to the following addresses, or to such other address as any
party may request in writing.
If to Seller:
Infinity Radio Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
With a copy, which shall not constitute notice, to:
Viacom Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
and
Xxxxxxxxx Xxxxxx & Xxxxxx PLLC 0000 X Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to Buyer:
NextMedia Operating, Inc.
0000 X. Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000X
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Facsimile: (000) 000-0000
With a copy, which shall not constitute notice, to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
31
Any such notice, demand or request shall be deemed to have been duly delivered
and received (i) on the date of personal delivery, or (ii) on the date of
transmission, if sent by facsimile and received prior to 5:00 p.m. in the place
of receipt (but only if a hard copy is also sent by overnight courier), or (iii)
on the date of receipt, if mailed by registered or certified mail, postage
prepaid and return receipt requested, or (iv) on the date of a signed receipt,
if sent by an overnight delivery service, but only if sent in the same manner to
all persons entitled to receive notice or a copy.
11.10 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced because of any Law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to either party hereto. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the greatest extent possible.
11.11 Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original and all of which
together will constitute one and the same instrument. Facsimile or other
electronically delivered copies of signature pages to this Agreement, any Buyer
Ancillary Agreement, any Seller Ancillary Agreement or any other document or
instrument delivered pursuant to this Agreement shall be treated as between the
parties as original signatures for all purposes.
ARTICLE XII
DEFINITIONS
12.1 Defined Terms. Unless otherwise stated in this Agreement,
the following terms when used herein shall have the meanings assigned to them
below (such meanings to be equally applicable to both the singular and plural
forms of the terms defined).
"Accounting Firm" means (a) an independent certified public
accounting firm in the United States of national recognition (other than a firm
that then serves as the independent auditor for Seller, Buyer or any of their
respective Affiliates) mutually acceptable to Seller and Buyer or (b) if Seller
and Buyer are unable to agree upon such a firm, then the regular independent
auditors for Seller and Buyer shall mutually agree upon a third independent
certified public accounting firm, in which event, "Accounting Firm" shall mean
such third firm.
"Accrued Vacation" shall have the meaning set forth in Section
4.7(d).
"Action" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
32
"Additional Financial Statements" shall have the meaning set
forth in Section 4.11.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly Controlling, Controlled by or under common Control
with such Person.
"Agreement" shall mean this Asset Purchase Agreement,
including the exhibits and schedules hereto.
"Assumed Obligations" shall have the meaning set forth in
Section 1.3.
"Auditor" shall have the meaning set forth in Section 4.11.
"Business Day," whether or not capitalized, shall mean every
day of the week excluding Saturdays, Sundays and Federal holidays.
"Buyer" shall have the meaning set forth in the Preamble to
this Agreement.77
"Buyer Ancillary Agreements" shall have the meaning set forth
in Section 2.2(a).
"Buyer Indemnified Parties" shall have the meaning set forth
in Section 7.2(a).
"Claim" shall have the meaning set forth in Section 7.3.
"Closing" shall have the meaning set forth in Section 1.6.
"Closing Date" shall have the meaning set forth in Section
1.6.
"Code" means the Internal Revenue Code of 1986, as amended.
"Communications Act" shall have the meaning set forth in
Section 2.6.
"Confidentiality Agreement" shall have the meaning set forth
in Section 4.3(c).
"Control" means, as to any Person, the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise. The terms "Controlled" and "Controlling" shall have a
correlative meaning.
"Damaged Asset" shall have the meaning set forth in Section
4.4.
"EAT" shall have the meaning set forth in Section 11.2.
"Effective Time" shall have the meaning set forth in Section
1.6.
"Employee Benefit Plans" shall have the meaning set forth in
Section 3.14(d).
33
"Employment Commencement Date" shall have the meaning set
forth in Section 4.7(a).
"Environmental Condition" shall have the meaning set forth in
Section 4.9.
"Environmental Costs and Liabilities" shall have the meaning
set forth in Section 3.13.
"Environmental Laws" shall have the meaning set forth in
Section 3.13.
"ERISA" shall have the meaning set forth in Section 3.14(d).
"Escrow Agent" shall have the meaning set forth in Section
1.5(b).
"Estoppel Certificates" shall have the meaning set forth in
Section 4.5.
"Excluded Assets" shall have the meaning set forth in Section
1.2.
"FCC" shall have the meaning set forth in the Recitals to this
Agreement.
"FCC Application" shall mean the application or applications
that Seller and Buyer must file with the FCC requesting its consent to the
assignment of the FCC Licenses.
"FCC Consent" shall mean the initial action by the FCC
granting the FCC Application.
"FCC Licenses" shall have the meaning set forth in Section
1.1(a).
"Final Order" means an action by the FCC (i) that has not been
vacated, reversed, stayed, enjoined, set aside, annulled or suspended, (ii) with
respect to which no request for stay, motion or petition for rehearing,
reconsideration or review, or application or request for review or notice of
appeal or sua sponte review by the FCC is pending, and (iii) as to which the
time for filing any such request, motion, petition, application, appeal or
notice, and for the entry of orders staying, reconsidering or reviewing on the
FCC's own motion has expired.
"FIRPTA" means a statement from the Seller that satisfies the
requirements set forth in Treasury Regulation Section 1.1445-2(b)(2).
"GAAP" means United States generally accepted accounting
principles as in effect as of the date hereof, consistently applied.
"Governmental Authority" means any federal, state or local or
any foreign government, legislature, governmental, regulatory or administrative
authority, agency or commission or any court, tribunal, or judicial or arbitral
body.
"Governmental Order" means any order, writ, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Authority.
34
"Group Contracts" means contracts that contemplate the
provision of the products and services to or by another station or business of
the Seller or any of its Affiliates other than or in addition to the Stations.
"HSRA" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended.
"Intangible Property" shall have the meaning set forth in
Section 1.1(d).
"Law" means any United States (federal, state, local) or
foreign statute, law, ordinance, regulation, rule, code, order, judgment,
injunction or decree.
"LC Issuance Notice" shall have the meaning set forth in
Section 1.5(b).
"Letter of Credit" shall have the meaning set forth in Section
1.5(b).
"Letter of Credit Proceeds" shall have the meaning set forth
in Section 1.5(b).
"Licensing" has the meaning set forth in Preamble to this
Agreement.
"Liens" shall have the meaning set forth in Section 1.1.
"Local Marketing Agreement" shall have the meaning set forth
in the Recitals to this Agreement.
"Losses" shall have the meaning set forth in Section 7.2(a).
"Notice of Disagreement" shall have the meaning set forth in
Section 1.7(g).
"Operating" has the meaning set forth in the Preamble to this
Agreement.
"Owned Real Property" shall have the meaning set forth in
Section 3.12.
"Permitted Liens" means, as to any property or asset or as to
the Stations, (a) Liens for Taxes, assessments and other governmental charges
not yet due and payable for which Buyer receives a credit under Section 1.7 for
the period prior to Closing; (b) zoning laws and ordinances and similar Laws
that are not violated by any existing improvement or that do not prohibit the
use of the Real Property as currently used in the operation of the Stations; (c)
any right reserved to any Governmental Authority to regulate the affected
property (including restrictions stated in the permits); (d) in the case of any
leased asset, (i) the rights of any lessor under the applicable lease agreement
or any Lien granted by any lessor and (ii) the rights of the grantor of any
easement or any Lien granted by such grantor on such easement property that is
not subordinate to the grant of easement; (e) easements, rights of way,
restrictive covenants and other encumbrances, encroachments or other similar
matters affecting title that do not materially adversely affect title to the
property subject thereto or impair the continued use of the property in the
ordinary course of business of the Stations; and (f) to the extent that Buyer
fails to obtain a survey for the Owned Real Property, any state of facts an
accurate survey would show, provided same does not render title unmarketable or
35
prevent the Owned Real Property from being utilized in substantially the same
manner currently used.
"Person" means any natural person, general or limited
partnership, corporation, limited liability company, firm, association, trust or
other legal entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Prorated Assumed Obligations" shall have the meaning set
forth in Section 1.7(a).
"Prorated Station Assets" shall have the meaning set forth in
Section 1.7(a).
"Purchase Price" shall have the meaning set forth in Section
1.5(a).
"Real Property" shall have the meaning set forth in Section
1.1(f).
"Real Property Leases" shall have the meaning set forth in
Section 3.12.
"Reference Financial Statements" shall have the meaning set
forth in Section 3.6.
"Retained Liabilities" shall have the meaning set forth in
Section 1.4.
"Seller" shall have the meaning set forth in the Preamble to
this Agreement.
"Seller Ancillary Agreements" shall have the meaning set forth
in Section 3.2.
"Seller Indemnified Parties" shall have the meaning set forth
in Section 7.2(b).
"Seller Material Adverse Effect" means a material adverse
effect on: (a) the ability of Seller to perform its obligations under this
Agreement or any Seller Ancillary Agreement or (b) the financial condition,
assets or results of operations of Station Assets, taken as a whole; provided,
however, that Seller Material Adverse Effect shall not include any material
adverse effect primarily attributable to (i) any change or development generally
applicable to the radio broadcast industry (including legislative or regulatory
matters), (ii) general economic conditions, including any downturn caused by
terrorist activity or earthquake, or (iii) any public announcement of the
transactions contemplated by this Agreement.
"Settlement Statement" shall have the meaning set forth in
Section 1.7(e).
"Station" or "Stations" shall have the meaning set forth in
the Recitals to this Agreement.
"Station Assets" shall have the meaning set forth in Section
1.1.
"Station Contracts" shall have the meaning set forth in
Section 1.1(c).
"Station Employees" shall have the meaning set forth in
Section 3.14(a).
36
"Tangible Personal Property" shall have the meaning set forth
in Section 1.1(b).
"Tax" or "Taxes" means all federal, state, local or foreign
income, excise, gross receipts, ad valorem, sales, use, employment, franchise,
profits, gains, property, transfer, use, payroll, intangible or other taxes,
fees, stamp taxes, duties, charges, levies or assessments of any kind whatsoever
(whether payable directly or by withholding), together with any interest and any
penalties, additions to tax or additional amounts imposed by any Tax authority
with respect thereto.
"Tax Returns" means all returns and reports (including
elections, declarations, disclosures, schedules, estimates and information
returns) required to be supplied to a Tax authority relating to Taxes.
"To Buyer's knowledge" or any variant thereof shall mean to
the actual knowledge, after due inquiry, of Xxxx Xxxxxx and Xxxxxx Xxxxxx.
"To Seller's knowledge" or any variant thereof shall mean to
the actual knowledge of Xxxx Xxxxxx and the actual knowledge, after due inquiry,
of Xxxxx Xxxxx and Xxxxxxx Xxxxxxxxx.
"Tradeout Agreement" means, as to a Station, any contract,
agreement or commitment, oral or written, pursuant to which Seller has agreed to
sell or trade commercial air time or commercial production services of such
Station in consideration for any property or service in lieu of or in addition
to cash.
"Transferred Employees" shall have the meaning set forth in
Section 4.7(a).
"Transfer Taxes" means all excise, sales, use, value added,
registration stamp, recording, documentary, conveyancing, franchise, property,
transfer and similar Taxes, levies, charges and fees.
"Upset Date" shall have the meaning set forth in Section
8.1(a)(iv).
12.2 Terms Generally. The term "or" is disjunctive; the term
"and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms apply to females; feminine terms apply to males. The
term "include," "includes" or "including" is by way of example and not
limitation.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
37
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
INFINITY RADIO INC.
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
NEXTMEDIA OPERATING, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
NM LICENSING LLC
By: /s/ Xxxx Xxxxxx
------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
SIGNATURE PAGE TO KEZR(FM)/KBAY(FM) ASSET PURCHASE AGREEMENT
LIST OF SCHEDULES
-----------------
Schedule 1.1(a) - FCC Licenses
Schedule 1.1(b) - Tangible Personal Property
Schedule 1.1(c) - Station Contracts
Schedule 1.1(d) - Intangible Property
Schedule 1.1(f) - Real Property
Schedule 1.2(j) - Excluded Marks
Schedule 1.2(s) - Excluded Contracts
Schedule 2.4 - Buyer Noncontravention
Schedule 3.4 - Seller Noncontravention
Schedule 3.5 - Litigation
Schedule 3.6 - Financial Statements
Schedule 3.8 - FCC Licenses
Schedule 3.8(a) - Conditions on FCC Licenses
Schedule 3.8(b) - Pending FCC Applications
Schedule 3.8(c) - Compliance with Communications Act and FCC Licenses
Schedule 3.8(d) - Pending Petitions, Complaints, Etc.
Schedule 3.14 -Employee Information
Schedule 3.14(a)
Schedule 3.14(b)
Schedule 3.14(d)
Schedule 4.7 - Employee Matters
Schedule 4.8 -Title Insurance; Surveys
Schedule 5.1(e) - Required Consents
