ASSET PURCHASE AGREEMENT
AND
AMENDMENT TO PROGRAM SERVICE AGREEMENT dated as of February 12, 1996
by and among
GREAT AMERICAN EAST, INC.
(Seller),
XXXXXX COMMUNICATIONS CORPORATION
(Guarantor),
WFXC AND WDUR, INC.
(Programmer)
and
PINNACLE MYRTLE CORP.
(Buyer)
TABLE OF CONTENTS
Page
ARTICLE I - ASSIGNMENT AND PURCHASE OF ASSETS
1.1 Assignment of Assets 2
1.2 Excluded Assets 4
1.3 Liabilities to be Assumed 5
1.4 Purchase Price 5
1.5 Proration of Income and Expenses 6
1.6 Allocation of Purchase Price 7
ARTICLE II - CLOSING, TERMINATION, AND RISK OF LOSS
2.1 Closing 7
2.2 Transactions at the Closing 7
2.3 Termination 10
2.4 Breach by Buyer 12
2.5 Risk of Loss 12
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF SELLER
3.1 Due Incorporation 13
3.2 Authority; No Conflict 13
3.3 Government Authorizations 13
3.4 Taxes and Regulatory Fees 14
3.5 Personal Property 14
3.6 Real Property 15
3.7 Consents 17
3.8 Contracts 17
3.9 Environmental 18
3.10 Intangibles 20
3.11 Personnel Information; Labor Contracts 21
3.12 Employee Benefit Plans 21
3.13 Litigation 21
3.14 Compliance with Laws 22
3.15 Insurance 22
3.16 Instruments of Conveyance; Good Title 22
3.17 Insolvency Proceedings 23
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Due Incorporation 23
4.2 Authority; No Conflict 23
4.3 Consents 24
4.4 Litigation 24
4.5 Compliance with Laws 24
4.6 Qualification 24
ARTICLE V - COVENANTS OF SELLER
5.1 Continued Operation of Station 25
5.2 Reasonable Access 25
5.3 Notification of Developments 25
5.4 Payment of Taxes 25
5.5 Third Party Consents 25
5.6 Encumbrances 25
5.7 Assignment of Assets 26
5.8 Commission Licenses and Authorizations 26
5.9 Insurance 26
5.10 Negotiations with Third Parties 26
ARTICLE VI - JOINT COVENANTS OF BUYER AND SELLER
6.1 Assignment Application 26
6.2 Performance 27
6.3 Conditions 27
6.4 Confidentiality 27
6.5 Cooperation 27
6.6 Escrow Agreement 28
ARTICLE VII - CONDITIONS TO OBLIGATIONS OF BUYER
7.1 Commission Approvals 28
7.2 Performance 28
7.3 Representations and Warranties 28
7.4 Consents 28
7.5 No Litigation 29
7.6 Documents 29
7.7 Opinions of Counsel 29
7.8 Title Insurance Policies 29
7.9 Surveys 29
ARTICLE VIII - CONDITIONS TO OBLIGATIONS OF SELLER
8.1 Performance 30
8.2 Representations and Warranties 30
8.3 Government Approvals 30
8.4 Documents 30
8.5 Opinion of Counsel 30
8.6 No Litigation 30
ARTICLE IX - INDEMNIFICATION
9.1 Indemnification by Seller 31
9.2 Guarantee 32
9.3 Indemnification by Buyer 33
9.4 Notification of Claims 33
ARTICLE X - MISCELLANEOUS
10.1 Assignment 34
10.2 Survival of Representations and Warranties 35
10.3 Brokerage 35
10.4 Expenses of the Parties 35
10.5 Entire Agreement 35
10.6 Headings 36
10.7 Governing Law 36
10.8 Counterparts 36
10.9 Notices 36
10.10 Specific Performance 37
10.11 Consent to Jurisdiction 37
10.12 Further Assurances 38
10.13 Public Announcements 38
10.14 Severability 38
DISCLOSURE SCHEDULE
1.1(a) Licenses
1.1(b) Personal Property
1.1(d) Leased Real Property and Owned Real Property
1.1(e) Intellectual Property
1.1(f) Contracts
1.1(h) Future Contracts
1.2(h) Other Excluded Assets
3.6(a) Title Defects
3.6(d) Real Property Permits
3.7 Seller's Consents
3.9 Hazardous Substances
3.11 Personnel Information
3.12 Employee Benefit Plans
3.13 Litigation
3.15 Insurance
4.3 Consents Required for Buyer's Performance
EXHIBITS
A Assignment and Assumption of Contracts and Leases
B Non-Compete Agreement
C Escrow Agreement
D Form of Opinion of Seller's Counsel
E Form of Opinion of Seller's FCC Counsel
F Form of Opinion of Buyer's Counsel
This ASSET PURCHASE AGREEMENT AND AMENDMENT
TO PROGRAM SERVICE AGREEMENT is entered into this 12th day of February, 1996 by
and among Great American East, Inc., a corporation formed under the laws of the
State of North Carolina ("Seller"), Xxxxxx Communications
Corporation ("Guarantor"), WFXC and WDUR, Inc., a corporation formed under the
laws of the State of Delaware ("Programmer"), and Pinnacle Myrtle Corp., a
corporation formed under the laws of the State of Delaware ("Buyer") (Seller and
Buyer sometimes being referred to herein individually as a "Party" and jointly
as "Parties").
R E C I T A L S
WHEREAS, Seller owns and operates and has been duly licensed by the
Federal Communications Commission (the "FCC" or the "Commission") to operate
radio station WFXK-FM, Tarboro, North Carolina (the "Station");
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase,
the assets utilized or held for use in connection with the operation of the
Station, and Seller and Buyer further desire that Seller assign to Buyer the
licenses and other authorizations issued to Seller by the Commission for the
purpose of operating the Station;
WHEREAS, Guarantor, which is the corporate parent of Seller, wishes to
guarantee certain of Seller's obligations hereunder as an inducement to Buyer
and Programmer to enter into this Agreement;
WHEREAS, pursuant to that certain Program Service Agreement of April 3,
1992 ("Program Service Agreement"), Programmer has the right to provide
programming over the Station, holds a right of first refusal with respect to the
sale of the Station and has deposited the sum of Thirty-Three Thousand Dollars
($33,000.00) with Seller (the "Deposit"); and
WHEREAS, Programmer wishes to amend the Program Service Agreement in
accordance herewith as an inducement to Seller and Guarantor to enter into this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
ARTICLE I
ASSIGNMENT AND PURCHASE OF ASSETS
1.1 Assignment of Assets. Seller agrees to assign, transfer, convey and
deliver to Buyer and Buyer agrees to acquire, accept and receive from Seller, on
the Closing Date (as defined herein), all of Seller's right, title and
interest in and to all of the assets used or held for use in connection with the
Station including, but not limited to, the following assets relating to the
Station (the "Station Assets") free and clear of all liens and encumbrances:
(a) Licenses and Authorizations. All licenses, permits and other
authorizations issued by the FCC or any other state or federal regulatory agency
pertaining to the Station, including, without limitation, those licenses,
permits or authorizations listed in Section 1.1(a) of the Disclosure Schedule
delivered by Seller to Buyer and dated of even date herewith (the "Disclosure
Schedule"), together with any renewals, extensions or modifications thereof and
additions thereto made between the date of this Agreement and the Closing Date
(the "Licenses").
(b) Tangible Personal Property. All of the tangible personal property
owned by Seller and used or usable in the operation of the Station, including
but not limited to the items of personal property listed in Section 1.1(b) of
the Disclosure Schedule, together with all additions, modifications or
replacements thereto made in the ordinary course of business between the date of
this Agreement and the Closing Date, as hereafter defined (the "Personal
Property").
(c) Real Estate Contracts. All of the leasehold interests and licenses
in real property leased or licensed by Seller and used or held for use in the
business and operations of the Station (the "Real Estate Contracts"), which Real
Estate Contracts are described in Section 1.1(d) of the Disclosure Schedule (the
land, buildings, structures, transmitter sites, towers, antennae and other
improvements covered by the Real Estate Contracts being herein called the
"Leased Real Property"). The Buyer shall assume, pay and perform all obligations
under such Real Estate Contracts accruing after the Closing Date to the extent
such obligations relate to the period after the Closing Date.
(d) Real Estate Assets. All of Seller's interest in the real property
owned by Seller and listed in Section 1.1(d) of the Disclosure Schedule and all
of the buildings, structures, transmitter sites, towers, antennae and other
improvements located thereon (collectively, the "Owned Real Property"). The
Owned Real Property and the Leased Real Property are collectively referred to
herein as the Real Property.
(e) Intangibles. The good will of the Station and other intangible
assets used or useful in the operation of the Station, including all of Seller's
rights in the trade names, copyrights, trademarks, service marks, patents,
patent applications, slogans, jingles, logos or other similar rights relating to
the operation of the Station including, but not limited to, those listed in
Section 1.1(e) of the Disclosure Schedule, together with any necessary additions
or modifications thereto between the date hereof and the Closing Date (the
"Intangibles").
(f) Leases and Contracts. All leases, contracts, agreements and
franchises relating to the operation of the Station (other than contracts for
real property) listed and identified in Section 1.1(f) of the Disclosure
Schedule and those leases, contracts, agreements and franchises described in
Section 1.1(h) of this Agreement (the "Contracts"). Buyer shall assume, pay and
perform all obligations under such Contracts accruing after the Closing Date to
the extent such obligations relate to the period after the Closing Date.
(g) Operating and Business Records. All files, records, logs and program
materials pertaining to the operation of the Station required to be maintained
and kept under the rules of the Commission and such other files and records as
Buyer shall reasonably require for the continuing business and operation of the
Station. Seller shall have the right to reasonable access to such business
records that Seller delivers to Buyer under this Section 1.1(g) upon Seller's
request for five years after the Closing Date.
(h) Future Contracts. All leases, contracts, agreements and franchises
entered into between the date hereof and the Closing Date in the usual and
ordinary course of business, except that those exceeding two months in duration
or $5,000.00 in amount will not be assumed by Buyer unless consented to by Buyer
in advance in writing and set forth in Section 1.1(h) of the Disclosure
Schedule.
(i) Inventory and Computer Software. All of Seller's items of inventory
related to the business of the Station, including, without limitation, broadcast
programs, as well as all computer software used or usable by the Station.
(j) Other Rights and Privileges. Any and all other franchises,
materials, supplies, easements, rights-of-way, licenses, and other rights and
privileges of Seller relating to and used, usable or necessary in the operation
of the Station.
1.2 Excluded Assets. There shall be excluded from the sale transaction
described herein the following assets relating to the Station:
(a) Cash and Deposits. Cash-on-hand or in banks (or their equivalents),
pre-paid and security deposits and other investments belonging to Seller and
relating to the operation of the Station as of the Closing Date.
(b) Accounts Receivable. All accounts receivable of the Seller with
regard to the operation of the Station prior to the Closing Date (as that term
is defined therein).
(c) Property Consumed. All property of the Station disposed of or
consumed (including ordinary wear and tear) in the ordinary course of business
between the date hereof and the Closing Date.
(d) Expired Leases, Contracts and Agreements. All contracts described in
Sections 1.1(d) and (f) to the Disclosure Schedule that are terminated or will
have expired prior to the Closing Date in the ordinary course of business.
(e) Pension and Profit-Sharing Plans. All pension and profit-sharing
plans, trusts established thereunder and assets thereof, if any, of Seller.
(f) Other Employee Benefit Plans. All other employee benefit plans
(including health insurance) of Seller and the assets thereof.
(g) Employment and Collective Bargaining Agreements. All employment
agreements and collective bargaining agreements of Seller.
(h) Other Excluded Assets. Those assets, if any, listed in Section
1.2(h) of the Disclosure Schedule.
1.3 Liabilities to be Assumed. Except as otherwise expressly provided in
an assumption agreement, in the form of Exhibit A, setting forth the obligations
being assumed by Buyer and to be executed at Closing (the "Assumed Contracts"),
Buyer assumes no liabilities or obligations of Seller of any nature whatsoever,
contingent or otherwise. Without limiting the generality of the foregoing, the
Parties particularly agree that Buyer should have no responsibility or liability
regarding (i) federal, state or local tax liability of any kind whatsoever
incurred by Seller, (ii) any employee benefit plan maintained by Seller or (iii)
severance payments, and Seller expressly agrees to defend and indemnify Buyer
against same. On or prior to the Closing Date, Seller shall pay or else have
made arrangements, satisfactory to Buyer, to assume all liabilities, debts and
other obligations of the Station arising prior to the Closing Date or otherwise
not assigned to and specifically assumed by Buyer.
1.4 Purchase Price. In consideration of Seller's performance of this
Agreement, Buyer shall pay to Seller the sum of Five Million, Nine Hundred
Thousand Dollars ($5,900,000.00) (the "Purchase Price"), plus the Deposit of
Thirty-Three Thousand Dollars ($33,000.00) under the Program Service Agreement
and any accrued interest on the Deposit shall be remitted to Seller, as follows:
(a) Escrow Deposit. As security for Buyer's failure to
close, and as an inducement for Seller to perform its obligations under this
Agreement, Buyer, upon execution of this Agreement, shall deposit with Star
Media Group, Inc. (the "Escrow Agent") the sum of Three Hundred Thousand Dollars
($300,000.00) (the "Escrow Deposit") to be invested in accordance with the terms
of the Escrow Agreement into which the Parties are entering concurrently
herewith. At the Closing, the Escrow Deposit shall be delivered to Seller and
credited against the Purchase Price and any interest that has accrued on the
Escrow Deposit shall be remitted to Buyer. If the Closing fails to occur because
Buyer is in material breach of this Agreement, the Escrow Deposit and any
interest that has accrued thereon shall be paid to Seller. If the Closing fails
to occur for any other reason, the Escrow Deposit and any interest that has
accrued thereon shall be paid to Buyer.
(b) On the Closing Date at the Closing, Buyer shall pay the Purchase
Price, minus any sums that have been credited against the Purchase Price
pursuant to Section 1.4(a), above, by wire transfer of federal funds. In
addition, the Deposit of Thirty-Three Thousand Dollars ($33,000.00) plus any
interest that has accrued thereon, will be released to Seller free of any claim
by Buyer thereto and the Program Service Agreement will be deemed to be amended
to provide for such payment of the Deposit, plus accrued interest, to Seller. In
consideration for the receipt of the Deposit, and the interest accrued thereon,
Seller relinquishes any rights it may have to, and releases Programmer in
respect of, any additional fees that may have been payable to Seller by
Programmer under paragraph A.4 of Schedule A to the Program Service Agreement.
1.5 Proration of Income and Expenses. Except as otherwise provided
herein or in the Program Service Agreement, all income and expenses arising from
the conduct of the business and operations of the Station shall be prorated
between Buyer and Seller in accordance with generally accepted accounting
principles as of 11:59 p.m., Eastern time, on the date immediately preceding the
Closing Date. Such prorations shall include, without limitation, all ad valorem
and other property taxes (but excluding taxes arising by reason of the transfer
of Station Assets as contemplated hereby, which shall be paid as set forth in
Section 10.4 of this Agreement), business and license fees, music and other
license fees (including any retroactive adjustments thereof, which retroactive
adjustments shall not be subject to the ninety day limitation set forth in
Section 1.5(a)), wages and salaries of employees hired by Buyer, including
accruals up to the Closing Date for bonuses, commissions, vacation and sick pay,
and related payroll taxes, utility expenses, time sales agreements, trade
agreements, rents and similar prepaid deferred items attributable to the
ownership and operation of the Station.
(a) Time for Payment. The prorations and adjustments contemplated by
this Section 1.5, to the extent practicable, shall be made on the
Closing Date. As to those prorations and adjustments not capable of being
ascertained on the Closing Date, an adjustment and proration shall be made
within 90 days of the Closing Date.
(b) Dispute Resolution. In the event of any disputes between the Parties
as to such adjustments, the amounts not in dispute shall nonetheless be paid at
the time provided in Section 1.5(a) and such disputes shall be determined by an
independent certified public accountant mutually acceptable to the Parties whose
determination shall be final, and the fees and expenses of such accountant shall
be paid one-half by Seller and one-half by Buyer.
1.6 Allocation of Purchase Price. Buyer and Seller agree that the
Purchase Price shall be allocated among the Station Assets in a manner to be
jointly determined by Buyer and Seller. Buyer and Seller agree to use such
allocation in completing and filing Internal Revenue Service Form 8594 for
federal income tax purposes. Buyer and Seller further agree that they shall not
take any position inconsistent with such allocation upon examination of any
return, in any refund claim, in any litigation, or otherwise.
ARTICLE II
CLOSING, TERMINATION, AND RISK OF LOSS
2.1 Closing. Unless otherwise agreed upon by the Parties, the purchase
and sale of the Station Assets contemplated by this Agreement (the "Closing")
shall take place at the offices of Xxxxx Xxxxx & Xxxxx P.L.C., 0000 Xxxxx
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX at 10:00 a.m. on the fifth business day
after the Commission's approval of the Assignment Application, as defined in
Section 6.1 below, becomes a Final Order (the "Closing Date"). For purposes of
this Agreement, a "Final Order" shall mean any action of the Commission which
has not been reversed, stayed, enjoined, set aside, annulled or suspended and
with respect to which no requests are pending for administrative or judicial
review, reconsideration, appeal or stay, and the time for filing any such
requests and the time for the Commission to set aside the action on its own
motion shall have expired.
2.2 Transactions at the Closing.
(a) At the Closing, Seller shall deliver to Buyer the following:
(i) assignments of the Licenses and other pertinent authorizations transferring
the same to the Buyer in customary form
and substance;
(ii) the certificates contemplated by Sections 7.2 and 7.3;
(iii) a copy of the resolutions of the board of directors of Seller authorizing
the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby, together with a certificate of the
Secretary of Seller, dated as of the Closing Date, that such resolutions were
duly adopted and are in full force and effect;
(iv) a warranty deed (or its equivalent in the State of North Carolina), in
proper statutory form for recording, and otherwise reasonably satisfactory in
form and substance to Buyer's counsel, sufficient to vest in Buyer good,
marketable and insurable title to each parcel of Owned Real Property;
(v) all real property transfer tax returns and other similar filings required by
law in connection with the transactions contemplated hereby, all duly executed
and acknowledged by Seller. Seller shall also have executed such affidavits in
connection with such filings as shall have been required by law or reasonably
requested by Buyer;
(vi) affidavit of an officer of Seller, sworn to under penalty of perjury,
setting forth Seller's name, address and Federal tax identification number and
stating that Seller is not a "foreign person" within the meaning of Section 1445
of the Internal Revenue Code of 1986 (the "Code"). If, on or before the Closing
Date, Buyer shall not have received such affidavit, Buyer may withhold from the
Purchase Price payable at Closing to Seller pursuant hereto such sums as are
required to be withheld therefrom under Section 1445 of the Code.
(vii) a xxxx of sale and all other appropriate documents and instruments
assigning to Buyer good and marketable title to the Station Assets free and
clear of any security interests, mortgages, liens, pledges, attachments,
conditional sales contracts, claims, charges or encumbrances of any kind
whatsoever;
(viii) written consents of the respective lessors, landowners, and any other
persons or entities whose consents may be required to permit Seller to assign
and Buyer to assume the Assumed Contracts;
(ix) evidence satisfactory to Buyer's counsel that no financing statements are
outstanding on the Station Assets;
(x) all files, records, logs, and program materials relating to the Station; and
all other records required to be maintained by the FCC with respect to the
Station, including the
Station's local public inspection file, which shall be left at the station and
thereby delivered to Buyer.
(xi) the opinion of counsel for Seller, dated the Closing Date, as described in
Section 7.7;
(xii) assignments to Buyer of all the Contracts and Real Estate Contracts in
form satisfactory to Buyer;
(xiii) certificates from each of the lessors of the Leased Real Property, dated
not more than thirty (30) days prior to the Closing, certifying (1) that the
lease is in good standing and in full force and effect in accordance with its
terms and has not been modified (except for modifications set forth therein),
(2) the date(s) to which rent and all other charges thereunder have been paid,
(3) that there is no default thereunder on the part of any party thereto, and
(4) to such other matters as Buyer shall reasonably request;
(xiv) such documentation as may be necessary to release to Buyer the escrow
deposit, including any accrued interest, that has been deposited with the Bank
of New York pursuant to paragraph A.5 to Schedule A to the Program Service
Agreement to secure Programmer's performance under the Program Service
Agreement;
(xv) a Non-Compete Agreement substantially in the form of Exhibit B hereto; and
(xvi) such other documents and instruments as Buyer may reasonably request to
consummate the transactions contemplated hereby, including, without limitation,
title affidavits and such evidence as may be required by Buyer or its title
insurer of the due authorization, execution and delivery of this Agreement and
the consummation of the transfers of Real Property contemplated hereunder.
(b) At the Closing, Buyer shall deliver or cause to be delivered to
Seller the following:
(i) the Purchase Price less any sums that have been credited against the
Purchase Price pursuant to Section 1.4(a) of this Agreement;
(ii) a copy of the resolutions of the board of directors of Buyer authorizing
the execution, delivery and performance of this Agreement, and the consummation
of the transactions contemplated hereby, together with a certificate of the
Secretary of Buyer dated as of the Closing Date, that such resolutions were duly
adopted and are in full force and effect;
(iii) the certificates contemplated by Sections 8.1 and 8.2;
(iv) the opinion of counsel for Buyer, dated the Closing Date, as described in
Section 8.5; and
(v) such other documents and instruments as Seller may reasonably request to
consummate the transactions contemplated hereby.
2.3 Termination.
(a) Notwithstanding anything to the contrary contained in this
Agreement, this Agreement may be terminated at any time by:
(i) the mutual written consent of the Parties hereto;
(ii) either Buyer or Seller if the Closing does not occur before December 1,
1996, provided, however, that the Party seeking termination under this Section
2.3(a)(ii) shall not be in breach of this Agreement in any material respect;
(iii) either Buyer or Seller if the Assignment Application (as that term is
defined herein) is not granted within nine (9) months from the date the Form 314
is placed on the Commission's public notice (through no fault of the terminating
Party) or is denied by the Commission by a Final Order;
(iv) Buyer, if any of the conditions set forth in Article VII shall have become
incapable of fulfillment, and shall not have been waived by Buyer, or if Seller
shall have breached in any material respect any of its representations,
warranties or obligations hereunder and such breach shall not have been cured in
all material respects or waived prior to the Closing; or
(v) Seller, if any of the conditions set forth in Article VIII shall have become
incapable of fulfillment, and shall not have been waived by Seller, or if Buyer
shall have breached in any material respect any of its representations,
warranties or obligations hereunder and such breach shall not have been cured in
all material respects or waived prior to the Closing.
(b) In the event of the termination of this Agreement by Buyer or Seller
pursuant to this Section 2.3, written notice thereof shall promptly be given (as
provided for in Section 10.9 herein) to the other Party and, except as otherwise
provided herein, the transactions contemplated by this Agreement shall be
terminated, without further action by any Party. Subject to Section 2.4, nothing
in this Section 2.3 shall be deemed to release any Party from any liability for
any breach by such Party of the terms and provisions of this Agreement or to
impair the right of Buyer to compel specific performance of Seller of its
obligations under this Agreement.
(c) The time for Commission approval provided in Section 2.3(a)(iii)
notwithstanding, either Party may terminate this Agreement upon written notice
to the other, if, for any reason, the Assignment Application is designated for
hearing by the Commission ("Hearing Designation Order"), provided, however, that
written notice of termination must be given within twenty (20) days after
release of the Hearing Designation Order and that the Party giving such notice
is not in default and has otherwise complied with its obligations under this
Agreement. Upon termination pursuant to this Section, the Parties shall be
released and discharged from any further obligation to consummate the Closing
hereunder and the Escrow Deposit and all accrued interest shall be returned to
the Buyer.
(d) It is further provided, however, that no Party may terminate this
Agreement if such Party is in default hereunder.
(e) A Party shall be deemed to be in default under this Agreement only
if such Party has materially breached or failed to perform its obligations
hereunder, and non-material breaches or failures shall not be grounds for
declaring a Party to be in default, postponing the Closing, or terminating this
Agreement.
2.4 Breach by Buyer. If the Closing shall fail to occur due to a breach
in any material respect by Buyer of its representations, warranties or
obligations and Seller terminates this Agreement pursuant to Section 2.3(a)(v),
the right of first refusal granted to Buyer in the Program Service Agreement
will automatically terminate and Seller may, at its option, terminate the
Program Service Agreement. In the event of such termination of the Program
Service Agreement by Seller, the Deposit of Thirty-Three Thousand Dollars
($33,000.00) that has been established pursuant to Schedule A of the Program
Service Agreement, along with any interest that has accrued thereon, will be
released to Seller, free of any claim by Buyer thereto. The release of the
Escrow Deposit (plus the interest that has accrued thereon) and the relief
afforded by this Section 2.4 shall constitute Seller's exclusive remedy, and
Buyer's sole liability, for Buyer's breach, on or before the Closing, of its
representations, warranties or obligations hereunder.
2.5 Risk of Loss. The risk of any loss, damage or destruction to any of
the Station Assets from fire or other casualty or cause shall be borne by Seller
at all times prior to the Closing Date hereunder. Upon the occurrence of any
loss or damage to any of the Station Assets as a result of fire, casualty,
accident or other causes prior to the Closing Date, Seller shall notify Buyer of
same in writing immediately stating with particularity the extent of loss or
damage incurred, the cause thereof if known and the extent to which restoration,
replacement and repair of the Station Assets lost or destroyed will be
reimbursed under any insurance policy with respect thereto. In the event the
loss is less than Fifty-Thousand Dollars ($50,000.00), Seller shall repair or
replace the property on or before the Closing, or shall grant Buyer an
adjustment to the Purchase Price to compensate Buyer for such loss. In the event
the loss exceeds Fifty Thousand Dollars ($50,000.00) and the Station Assets
cannot be substantially repaired or restored within forty-five (45) days after
such loss, Buyer shall have the option, exercisable within ten (10) days after
receipt of written notice from Seller, to: (i) terminate this Agreement; (ii)
postpone the Closing until such time as the property has been completely
repaired, replaced or restored to the satisfaction of Buyer, unless the same
cannot be reasonably effected within thirty (30) days of notification; or (iii)
elect to consummate the Closing and accept the property in its damaged
condition, in which event Seller shall assign to Buyer all rights under any
insurance claim covering the loss and pay over to Buyer any proceeds under any
such insurance policy thereto received by Seller with respect thereto. Anything
to the contrary in this section notwithstanding, however, if any loss, damage or
destruction to any of the Station Assets is caused prior to the Closing Date by
Buyer or its agents, Buyer may not terminate this Agreement but shall proceed to
Closing at the time and on the date prescribed in Section 2.1 of this Agreement
and shall accept the property in its damaged condition and receive an assignment
of any insurance proceeds.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Due Incorporation. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of North Carolina, and
is duly qualified to do business in the State of North Carolina. Seller has the
corporate power and authority to own and to operate the Station and the Station
Assets.
3.2 Authority; No Conflict. The execution and delivery of this
Agreement, the Non-Compete Agreement, the Escrow Agreement, the xxxx of sale,
the deed and the assignment agreements (the "Transaction Documents") have been
duly and validly authorized and approved by the board of directors of Seller,
and Seller has the corporate power and authority to execute, deliver and perform
the Transaction Documents and to consummate the transactions contemplated hereby
and thereby. Neither such execution, delivery or performance nor compliance by
Seller with the terms and provisions hereof or thereof will (assuming receipt of
all necessary approvals from the Commission) conflict with or result in a breach
of any of the terms, conditions or provisions of
(a) the Certificate of Incorporation or Bylaws of Seller, (b) any judgment,
order, injunction, decree, regulation or ruling of any court or other
governmental authority to which Seller is subject, or (c) any material
agreement, mortgage, deed of trust, permit, easement, license, lease or
contract, written or oral, to which Seller is subject. This Agreement shall
constitute the valid and binding obligation of Seller with respect to the terms
hereof, subject to Commission approval of the transactions contemplated hereby.
Each of the Transaction Documents has been, or will be, duly executed and is
enforceable in accordance with its terms.
3.3 Government Authorizations. Section 1.1(a) of the Disclosure Schedule
contains a true and complete list of all the Licenses, which Licenses are those
permits, licenses and authorizations necessary for the lawful conduct of the
business and operation of the Station in the manner and to the full extent they
are currently conducted. Seller is the authorized legal holder of the Licenses,
none of which is subject to any restriction or condition which would limit in
any material respect the full operation of the Station as now operated. There
are no applications, complaints or proceedings pending or, to the best of
Seller's knowledge, threatened as of the date hereof before the Commission or
any other governmental authority relating to the business or operations of the
Station, other than applications, complaints or proceedings which generally
affect the broadcasting industry as a whole. The Licenses are in good standing
and are in full force and effect and have been renewed by Final Order without
condition for a license term expiring no earlier than December 1, 2002. Seller
is in material compliance with the terms and conditions of the Licenses. To the
knowledge of Seller, there are no facts which, under the Communications Act of
1934, as amended, or the rules and regulations of the Commission, in each case
as in effect on the date hereof, would disqualify Seller as assignor, and Buyer
as assignee, in connection with the Assignment Application.
3.4 Taxes and Regulatory Fees. Seller has timely filed all federal,
state, local and foreign income, franchise, sales, use, property, excise,
payroll and other tax returns required by law and has paid in full all
regulatory fees, taxes, estimated taxes, interest, assessments, and penalties
due and payable as shown thereon. All returns and forms which have been filed
have been true and correct in all material respects and no tax or other payment
in a material amount other than as shown on such returns and forms are required
to be paid or have been paid by Seller. There are no present disputes as to
regulatory fees or taxes of any nature payable by Seller which in any event
could materially adversely affect the Station Assets or operation of the
Station.
3.5 Personal Property. Section 1.1(b) of the Disclosure Schedule
contains a true and complete list of all the Personal Property. Except for those
assets designated on Section 1.1(f) of the Disclosure Schedule as being subject
to
lease agreements, Seller owns and has, and will have on the Closing Date, good
and marketable title to such Personal Property, and none of such Personal
Property on the Closing Date will be subject to any security interest, mortgage,
pledge, conditional sales agreement or other lien or encumbrance. The Personal
Property shall be in good operating condition, normal wear and tear excepted, on
the Closing Date.
3.6 Real Property.
(a) Seller is the owner of good, marketable and insurable fee title to
the real property described on Section 1.1(d) of the Disclosure Schedule and to
all of the buildings, structures, transmitter sites, towers, antennae and other
improvements located thereon (collectively, the "Owned Real Property") free and
clear of all Title Defects (as hereinafter defined) except for (i) the matters
listed on Section 3.6(a) of the Disclosure Schedule and (ii) encumbrances on
real estate for real estate taxes, assessments, governmental charges or levies
not yet delinquent (collectively, the "Permitted Owned Real Property
Exceptions"). Section 1.1(d) of the Disclosure Schedule sets forth complete and
correct legal descriptions (including lot and block number, if any) of the Owned
Real Property. The Owned Real Property constitutes all of the real property
owned by Seller, or held for the benefit of Seller under a title-holding
agreement, on the date hereof in connection with the operation of the Station.
Other than as set forth in Section 1.1(f) of the Disclosure Schedule, there are
no leases/subleases, licenses or other agreements or instruments granting to any
person other than Seller any right to the possession, use or occupancy of the
Owned Real Property. As used in this Agreement, "Title Defects" shall mean and
include any mortgage, deed of trust, lien, pledge, security interest, claim,
lease, charge, option, right of first refusal, easement, restrictive covenant,
encroachment or other survey defect, encumbrance or other restriction or
limitation whatsoever.
(b) Section 1.1(d) of the Disclosure Schedule contains a true and
complete list and summary of all the Real Estate Contracts. Seller holds the
leasehold interest under each Real Estate Contract free and clear of all Title
Defects. The Real Estate Contracts constitute valid and binding obligations of
Seller and, to the best of Seller's knowledge, of all other persons purported to
be parties thereto, and are in full force and effect as of the date hereof, and
will on the Closing Date constitute valid and binding obligations of Buyer and,
to the best of Seller's knowledge, of all other persons purported to be parties
thereto. As of the date hereof, Seller is not in default under any of the Real
Estate Contracts and has not received or given written notice of any default
thereunder from or to any of the other parties thereto and will not have
received any such notice at or prior to the Closing Date. Seller shall use
reasonable efforts to obtain (i) valid and binding third-party consents, if any
are necessary, from all required third parties to the Real Estate Contracts to
be conveyed and assigned to Buyer
as part of the Station Assets and (ii) estoppel certificates in the form
described in Section 2.2(a)(xiii) hereof. Subject to any required third-party
consents, Seller will have full legal power and authority to assign its rights
under the Real Estate Contracts to Buyer in accordance with this Agreement on
terms and conditions no less favorable than those in effect on the date hereof,
and such assignment shall not affect the validity, enforceability and continuity
of any of the Real Estate Contracts.
(c) Entire Premise. All of the land, buildings, structures, transmitter
sites, towers, and antennae and other improvements used by Seller in the conduct
of the Business or involved in the Real Property are listed in Section 1.1(d) of
the Disclosure Schedule.
(d) Real Property Permits and Insurance. All certificates of occupancy,
permits, licenses, franchises, approvals and authorizations including, without
limitation, those required pursuant to environmental laws (collectively, "Real
Property Permits") of all governmental authorities having jurisdiction over the
Real Property, required or appropriate to have been issued to Seller to enable
the Real Property to be lawfully occupied and used for all of the purposes for
which it is currently occupied and used have been lawfully issued and are, as of
the date hereof, and shall be on the Closing Date, in full force and effect, no
appeal or any other action is pending to revoke any such Real Property Permits,
and Seller is in full compliance with all terms and conditions of all such Real
Property Permits. Section 3.6(d) of the Disclosure Schedule sets forth all Real
Property Permits and all reports of inspection of the Station Assets to the date
hereof under all applicable laws. Seller has heretofore delivered to Buyer
complete and correct copies of all of the foregoing and applications relating
thereto.
(e) Condemnation. Seller has not received notice and has no knowledge of
any pending, threatened or contemplated appropriation or condemnation proceeding
affecting the Real Property or any part thereof or of any sale or other
disposition of the Owned Real Property or any part thereof in lieu of
condemnation.
(f) Seller has complete and good and valid rights of ingress and egress
to and from the Real Property from and to the public street systems for all
usual street, road and utility purposes. Seller has not received and does not
know of any non-conformance or violation of any applicable zoning law,
regulation or other law, order, regulation or requirement relating to or
affecting any of the operations and business of the Station and the Real
Property. All of the buildings, structures, transmitter sites, towers, antennae
and other improvements which constitute part of the Real Property (i) are
located within the boundary lines and applicable set back lines of the
respective properties, (ii) do not encroach on any easements or on any real
property not
constituting Real Property, and (iii) comply with all local zoning requirements
and conform with the uses permitted thereunder and do not constitute "non-
conforming uses". All parcels of Real Property used by Seller as units are
contiguous to one another and no strips or gores intervene between any such
parcels.
(g) All of the buildings, structures, transmitter sites, towers,
antennae and other improvements which constitute part of the Real Property are
in a good state of repair, maintenance and operating condition, ordinary wear
and tear excepted, and there are no defects with respect thereto which would
impair the day-to-day use of any such buildings, structures, transmitter sites,
towers, antennae and other improvements or which would subject Buyer to
liability under applicable law.
(h) Seller has delivered to Buyer complete and correct copies of each
and every of the following in possession of Seller: (i) title report, title
binder, survey document and datum affording information or opinions with respect
to, certifying to, or evidencing the extent of, current title, title history,
title marketability, use, possession, restriction or regulation, if any
(governmental or otherwise), conformance to and compliance with applicable laws
of the Real Property, (ii) deed or title-holding or trust agreement, if any,
under which any of the Real Property may have been conveyed to Seller or under
which the same may be held for the benefit of Seller, (iii) Real Estate
Contracts, and (iv) certificates of occupancies.
3.7 Consents. No consent, approval, authorization or order of, or
registration, qualification or filing with, any court, regulatory authority or
other governmental body is required for the execution, delivery and performance
by Seller of this Agreement other than approval by the Commission of the
Assignment Application as contemplated hereby. Except as set forth in Section
3.7 of the Disclosure Schedule, no consent of any other party (including,
without limitation, any party to any Real Estate Contract or Contract) is
required for the execution, delivery and performance by Seller of this Agreement
or the Non-Compete Agreement.
3.8 Contracts. Section 1.1(f) of the Disclosure Schedule contains a true
and complete list of all Contracts. Seller has delivered to Buyer true and
complete copies of all written Contracts and descriptions of terms of any oral
Contracts, including any and all amendments and other modifications to same. All
such Contracts are valid, binding and enforceable by Seller in accordance with
their respective terms, except as limited by laws affecting creditors' rights or
equitable principles generally. Seller has complied in all material respects
with all such Contracts and Seller is not in default beyond any applicable grace
periods under any of same, and no other contracting party is in material default
under any of same. Seller has full legal power and authority to assign its
respective rights under such Contracts to Buyer in accordance with this
Agreement on terms and conditions no less favorable than those in effect on the
date hereof, and such assignment will not materially affect the validity,
enforceability and continuity of any such Contracts.
3.9 Environmental.
(a) Except as disclosed in Section 3.9 of the Disclosure Schedule,
Seller has not, and to Seller's best knowledge, no other person has, released,
placed, stored, buried or dumped any Hazardous Substances or other wastes
produced by, or resulting from any business, commercial or industrial activity,
operation or process, on, beneath, or adjacent to the Real Property (or any
other property or facility formerly owned, operated or leased by Seller) except
for Hazardous Substances and inventories or such substances to be used or
generated therefrom in the ordinary course of business of Seller (which
Hazardous Substances, inventories and wastes, if any, were and are stored or
disposed of in accordance with applicable laws and regulations and in a manner
that there has been no release of any such substances into the environment).
(b) The technical equipment included in the Personal Property does not
contain any Hazardous Substances, including any Polychlorinated Biphenyls
("PCBs") that are required by law to be removed, and if any equipment does
contain Hazardous Substances that are not required by law to be removed,
including any PCBs, that such equipment is stored and maintained in compliance
with applicable law.
(c) Seller has complied, and is in compliance, in all material respects
with all federal, state and local environmental laws, rules and regulations
applicable to the Station and its operations, and the Station Assets, including
but not limited to (i) all orders, decrees, judgments, plan, notice or demand
letter issued, entered, promulgated or approved thereunder, and (ii) the
Commission's guidelines regarding radio frequency radiation.
(d) Except as disclosed in Section 3.9 of the Disclosure Schedule, the
operations and activities of the Station and the Station Assets have complied
and are in compliance in all material respects with all applicable federal,
state and local laws and regulations.
(e) Except as disclosed in Section 3.9 of the Disclosure Schedule, no
release or cleanup has occurred at the Real Property (or any other property or
facility formerly owned, operated or leased by Seller) which could result in the
assertion or creation of a lien on the Station Assets by any governmental body
or agency with respect thereto, nor to the Seller's best knowledge has any
assertion of a lien been made by any governmental body or agency with respect
thereto.
(f) Except as disclosed in Section 3.9 of the Disclosure Schedule, no
employee of Seller in the course of his or her employment with Seller has been
exposed to any Hazardous Substances or other substances generated, produced or
used by Seller which could give rise to any claim against the Station Assets.
(g) To the extent within Seller's possession or control, Seller has
heretofore delivered to Buyer true and complete copies of all (i) environmental
studies relating to the Real Property, and (ii) all material reports of
inspection of the Station and/or the Station Assets pursuant to applicable
federal, state and local laws and regulations.
(h) Except as disclosed in Section 3.9 of the Disclosure Schedule, the
Real Property does not contain any: (i) underground storage tanks, (ii)
asbestos, (iii) PCBs, (iv) underground injection xxxxx, or (v) septic tanks in
which process waste water or any Hazardous Substances have been disposed and no
such tanks, asbestos, equipment, xxxxx or septic tanks have been removed from
any of the Real Property.
(i) Except as disclosed in Section 3.9 of the Disclosure Schedule, with
respect to Seller and the Real Property (or any other property or facility
formerly owned, operated or leased by Seller), there are no past or present (or,
to Seller's best knowledge, future) events, conditions, circumstances,
activities, practices, incidents, actions or plans which may interfere with or
prevent compliance with any environmental laws as in effect on the date hereof
or with any regulation, code, plan, order, decree, judgment, injunction, notice
or demand letter issued, entered, promulgated or approved thereunder, or which
may give rise to any common law or legal liability under any environmental laws,
or otherwise form the basis of any claim, action, demand, suit, proceeding,
hearing, notice of violation, study or investigation, based on or related to the
manufacture, generation, processing, distribution, use, treatment, storage,
place of disposal, transport or handling, or the release or threatened release
into the indoor or outdoor environment at or from the Real Property, or any
Hazardous Substances.
(j) Except as set forth in Section 3.9 of the Disclosure Schedule,
Seller has not received any notice or order from any governmental agency or
private or public entity advising it that Seller is responsible for or
potentially responsible for cleanup or paying for the cost of cleanup of any
Hazardous Substances or any other wastes or substances, and Seller has not
entered into any agreements concerning such cleanup, nor is Seller aware of any
facts which might reasonably give rise to such notice, order or agreement.
(k) Seller has not entered into any agreement that may
require it to pay, reimburse, guarantee, pledge, defer, indemnify or hold
harmless any person for or against liabilities and costs relating to
environmental matters concerning the Station Assets.
(l) As used herein, the term "Hazardous Substances" shall mean all
materials, substances, oils, pollutants, contaminants and wastes regulated by
any applicable federal, state, local or foreign laws relating to pollution or
protection of human health or the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata).
(m) If Seller learns between the date of this Agreement and the Closing
Date that Seller is in breach of the representation and warranty set forth in
this Section 3.9, Seller shall, unless such breach is caused by Buyer, begin
remedial action promptly and shall use reasonable efforts to complete such
remedial action to the satisfaction of Buyer and applicable governmental
authorities before the Closing Date. In the event that such breach is caused by
Buyer, Buyer shall be responsible for the costs of any such remediation and the
fact of such breach shall not excuse Buyer from closing on the sale of the
Station Assets as provided for in this Agreement.
3.10 Intangibles. Section 1.1(e) of the Disclosure Schedule is a true
and complete list of all trade names, copyrights, trademarks, service marks,
patents or applications therefor (the "Intellectual Property") that have been
duly registered by, filed by, or issued to the Seller. Seller has not granted
any license or other rights with respect to the Intangibles (including the
Intellectual Property). Seller has not received any written notice of any
infringement or unlawful use of the Intangibles and Seller has not violated or
infringed any patent, trademark, trade secret or copyright held by others or any
license, authorization or permit held by it.
3.11 Personnel Information; Labor Contracts.
(a) Section 3.11 of the Disclosure Schedule contains a true and complete
list of all persons employed at the Station, including the date of hire, a
description of material compensation arrangements (other than employee benefit
plans set forth in Section 3.12 of the Disclosure Schedule) and a list of other
terms of any and all material agreements affecting such persons.
(b) Seller is not a party to any contract with any labor organization,
nor has Seller agreed to recognize any union or other collective bargaining
unit, nor has any union or other collective bargaining unit been certified as
representing any of Seller's employees. Seller has no knowledge of any
organizational effort currently being made or threatened by or on behalf of any
labor union with respect to employees of the Station. During the past two
years, Seller has not experienced any strikes, work stoppages, grievance
proceedings, claims of unfair labor practices filed, or other significant labor
difficulties of any nature.
(c) Seller has complied in all material respects with all laws relating
to the employment of labor, including, without limitation, the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and those laws
relating to wages, hours, collective bargaining, unemployment insurance,
workers' compensation, equal employment opportunity and the payment and
withholding of taxes.
3.12 Employee Benefit Plans. Section 3.12 of the Disclosure Schedule
contains a true and complete list and summary, as of the date of this Agreement,
of all employee benefit plans (as that term is defined in Section 3(3) of ERISA)
applicable to the employees of Seller. Seller maintains no other employee
benefit plan. Each of Seller's employee benefit plans has been operated and
administered in all material respects in accordance with its terms and
applicable law, including, without limitation, ERISA and the Internal Revenue
Code.
3.13 Litigation. Except as set forth in Section 3.13 of the Disclosure
Schedule, Seller is not subject to any judgment, award, order, writ, injunction,
arbitration decision or decree, and there is no litigation, proceeding or
investigation pending or, to the best of Seller's knowledge, threatened against
Seller or the Station in any federal, state or local court, or before any
administrative agency or arbitrator (including, without limitation, any
proceeding which seeks the forfeiture of, or opposes the renewal of, any of the
Licenses), or before any other tribunal duly authorized to resolve disputes,
which would reasonably be expected to have any material adverse effect upon the
business, property, assets or condition (financial or otherwise) of the Station
or which seeks to enjoin or prohibit, or otherwise questions the validity of,
any action taken or to be taken pursuant to or in connection with this
Agreement.
3.14 Compliance with Laws. Seller has not received any notice asserting
any non-compliance with, or any non-conformance to, any applicable statute, rule
or regulation (federal, state or local) whether or not related to the business
or operation of the Station or the Real Property. Seller is not in default with
respect to any judgment, order, injunction or decree of any court,
administrative agency or other governmental authority or to any other tribunal
duly authorized to resolve disputes in any respect material to the transactions
contemplated hereby. The Real Property is in full compliance with, and conforms
to, all applicable building, zoning, subdivision, environmental and other land
use and similar laws, codes, ordinances, rules, regulations and orders of
governmental authorities (collectively, "Real Property Laws"), and Seller has
not received any notice of (i) violation, claimed violation, or non-conformance
or
claimed non-conformance with any Real Property Law or (ii) remediation required
to be performed pursuant to environmental laws with respect to any of the Real
Property. To the best knowledge of Seller, Seller is in compliance with all
applicable laws.
3.15 Insurance. Seller has in full force and effect insurance on all of
the Real Property, Personal Property, and all other Station Assets pursuant to
insurance policies, summaries of which are contained in Section 3.15 of the
Disclosure Schedule. Seller shall continue to maintain such insurance in full
force and effect up to the Closing Date or shall have obtained prior to the
Closing Date other insurance policies with limits and coverage comparable to the
current policies after prior notice to, and upon written consent of the Buyer,
which consent shall not be unreasonably withheld.
3.16 Instruments of Conveyance; Good Title. The instruments to be
executed by Seller and delivered to Buyer at Closing, conveying the Station
Assets, including without limitation the Owned Real Property, to Buyer, will be
in a form sufficient to transfer good, marketable, and with respect to the Real
Property, insurable title to the Station Assets, including without limitation
the Owned Real Property, free and clear of all liabilities, obligations and
encumbrances, except as provided herein and otherwise reasonably satisfactory in
form and substance to Buyer's counsel.
3.17 Insolvency Proceedings. No insolvency proceedings of any character
including, without limitation, bankruptcy, receivership, reorganization,
composition or arrangement with creditors, voluntary or involuntary, affecting
Seller or the Station Assets are pending or, to Seller's knowledge, threatened,
and Seller has made no assignment for the benefit of creditors, nor taken any
action with a view to, or which would constitute the basis for, the institution
of any such insolvency proceedings.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Due Incorporation. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and as of
the Closing Date shall be duly qualified to do business in and be in good
standing in the State of North Carolina.
4.2 Authority; No Conflict. The execution and delivery of this Agreement
has been duly and validly authorized and approved by the board of
directors of Buyer, and Buyer has the corporate power and authority to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery, performance hereof, and compliance
by Buyer with the terms and provisions hereof will not (assuming receipt of all
necessary approvals from the Commission) conflict with or result in a breach of
any of the terms, conditions or provisions of (a) the Certificate of
Incorporation or Bylaws of Buyer, (b) any judgment, order, injunction, decree,
regulation or ruling of any court or other governmental authority to which Buyer
is subject, or (c) any material agreement, lease or contract, written or oral,
to which Buyer is subject. This Agreement will constitute the valid and binding
obligation of Buyer with respect to the terms hereof, subject to Commission
approval of the transactions contemplated hereby.
4.3 Consents. No consent, approval, authorization or order of, or
registration, qualification or filing with, any court, regulatory authority or
other governmental body is required for the execution, delivery and performance
by Buyer of this Agreement, other than the approval by the Commission of the
Assignment Application as contemplated hereby. Except as set forth in Section
4.3 of the Disclosure Schedule, no consent of any other party is required for
the execution, delivery and performance by Buyer of this Agreement or the
Non-Compete Agreement.
4.4 Litigation. There is no litigation, proceeding or investigation
pending or, to the best of Buyer's knowledge, threatened against Buyer in any
federal, state or local court, or before any administrative agency or
arbitrator, or before any other tribunal duly authorized to resolve disputes,
that would reasonably be expected to have any material adverse effect upon the
ability of Buyer to perform its obligations hereunder, or that seeks to enjoin
or prohibit, or otherwise questions the validity of, any action taken or to be
taken pursuant to or in connection with this Agreement.
4.5 Compliance with Laws. Buyer is not in default with respect to any
judgment, order, injunction or decree of any court, administrative agency or
other governmental authority or of any other tribunal duly authorized to resolve
disputes in any respect material to the transactions contemplated hereby. Buyer
is not in violation of any law, regulation or governmental order, the violation
of which would have a material adverse effect on Buyer or its ability to perform
its obligations pursuant to this Agreement.
4.6 Qualification. To the best of Buyer's knowledge, Buyer is legally
and financially qualified to be the assignee of the Licenses and the other
Station Assets under the Communications Act of 1934, as amended, and the FCC's
rules, regulations and policies, in each case as in effect on the date hereof,
and, prior to the Closing Date, Buyer will exercise its reasonable efforts to
refrain from doing any act which would disqualify Buyer under such Act, rules,
regulation or policies from being the assignee of the Licenses and the other
Station Assets.
ARTICLE V
COVENANTS OF SELLER
Between the date of this Agreement and the Closing Date, Seller shall
have complete control of the Station and its operations, and Seller covenants as
follows with respect to such period:
5.1 Continued Operation of Station. Seller shall file with the
Commission and any other applicable governmental authority all applications and
other documents required to be filed in connection with the continued operation
of the Station.
5.2 Reasonable Access. Seller shall provide Buyer, and representatives
of Buyer, with reasonable access during normal business hours to the Station and
shall furnish such additional information concerning the Station as Buyer from
time to time may reasonably request.
5.3 Notification of Developments. Seller shall provide Buyer with prompt
written notice of any change in any of the information contained in the
representations and warranties made herein or in the Disclosure Schedule or any
other documents delivered in connection with this Agreement.
5.4 Payment of Taxes. Seller shall pay or cause to be paid all property
and all other taxes relating to the Station, the Real Property and the assets
and employees of the Station required to be paid to city, county, state, federal
and other governmental units through the Closing Date.
5.5 Third Party Consents. Seller shall use commercially reasonable
efforts to obtain from any third party waivers, permits, licenses, approvals,
authorizations, qualifications, orders and consents necessary for the
consummation of the transactions contemplated by this Agreement, including,
without limitation, approval from the Commission of the Assignment Application
contemplated hereby.
5.6 Encumbrances. Seller shall not suffer or permit the creation of any
mortgage, conditional sales agreement, security interest, lease, license, lien,
hypothecation, deed of trust or pledge, encumbrance, restriction, liability,
charge, or imperfection of title with respect to the Station Assets.
5.7 Assignment of Assets. Seller shall not sell, assign, lease or
otherwise transfer or dispose of any Station Assets, whether now owned or
hereafter acquired, except for retirements in the normal and usual course of
business or in connection with the acquisition of similar property or assets, as
provided for herein.
5.8 Commission Licenses and Authorizations. Seller shall not by any act
or omission surrender, modify adversely, forfeit or fail to renew under regular
terms the Licenses, cause the Commission or any other governmental authority to
institute any proceeding for the revocation, suspension or modification of any
such License, or fail to prosecute with due diligence any pending applications
with respect to the Licenses at the Commission or any other applicable
governmental authority.
5.9 Insurance. Seller shall maintain at all times between the date
hereof and the Closing Date, those insurance policies listed in Section 3.15 of
the Disclosure Schedule.
5.10 Negotiations with Third Parties. Seller shall not, before Closing
or the termination of this Agreement, enter into discussions with respect to any
sale or offer of the Station, any Station Assets or any stock of Seller to any
third party, nor shall Seller offer the Station, any Station Assets or any stock
of Seller to any third party.
ARTICLE VI
JOINT COVENANTS OF BUYER AND SELLER
Buyer and Seller covenant and agree that between the date hereof and the
Closing Date, they shall act in accordance with the following:
6.1 Assignment Application. As promptly as practicable after the date of
this Agreement, and in no event later than ten (10) days after execution of this
Agreement, Seller and Buyer shall join in and file an application on FCC Form
314 with the Commission requesting its consent to the assignment of the Licenses
from Seller to Buyer (the "Assignment Application"). Seller and Buyer agree to
prosecute the Assignment Application with all reasonable diligence and to use
reasonable efforts to obtain prompt Commission grant of the Assignment
Application filed at the Commission. Without in any way limiting the foregoing,
the Parties agree to promptly furnish, file and make available to the Commission
such information as the Commission may request and not to take action for the
purpose of delaying the Commission's decision or determination respecting the
Assignment Application.
6.2 Performance. Buyer and Seller shall perform all acts required of
them under this Agreement and shall refrain from taking or omitting
to take any action that would violate their representations and warranties
hereunder or render those representations and warranties inaccurate as of the
Closing Date.
6.3 Conditions. If any event should occur, either within or without the
control of any Party hereto, which would prevent fulfillment of the conditions
placed upon the obligations of any Party hereto to consummate the transactions
contemplated by this Agreement, the Parties hereto shall use reasonable efforts
to cure the event as expeditiously as possible.
6.4 Confidentiality. Buyer and Seller shall each keep confidential all
information they obtain with respect to any other Party hereto in connection
with this Agreement and the negotiations preceding this Agreement, and will use
such information solely in connection with the transactions con- templated by
this Agreement. If the transactions contemplated hereby are not consummated for
any reason, each Party hereto shall return to the Party so providing, without
retaining a copy thereof, any schedules, documents or other written information
obtained from the Party so providing such information in connection with this
Agreement and the transactions contemplated hereby. Notwithstanding the
foregoing, no Party shall be required to keep confidential or return any
information which (i) is known or available through other lawful sources, (ii)
is or becomes publicly known through no fault of the receiving Party or its
agents, (iii) is required to be disclosed pursuant to law or regulation or an
order or request of a judicial or governmental authority (provided the
disclosing Party is given reasonable prior notice), or (iv) is developed by the
receiving Party independently of the disclosure by the disclosing Party.
6.5 Cooperation. Buyer and Seller shall cooperate fully and with each
other in taking any actions to obtain the required consent of any governmental
instrumentality or any third party necessary or helpful to accomplish the
transactions contemplated by this Agreement provided, however, that no Party
shall be required to take any action which would have a material adverse effect
upon it or any entity affiliated with it.
6.6 Escrow Agreement. Seller and Buyer shall enter into an Escrow
Agreement substantially in the form attached hereto as Exhibit C.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF BUYER
The performance of the obligations of the Buyer hereunder is subject, at
the election of the Buyer, to the following conditions precedent:
7.1 Commission Approvals. Notwithstanding anything herein to the
contrary, the consummation of this Agreement is conditioned upon (a) a grant by
the Commission of the Assignment Application, and (b) compliance by the Parties
with the conditions, if any, imposed by the Commission in connection with the
grant of the Assignment Application (provided that neither Party shall be
required to accept or comply with any condition which would be unreasonably
burdensome or which would have a materially adverse effect upon it). All
required governmental filings shall have been made, and all requisite
governmental approvals for the consummation of the transactions contemplated
hereby shall have been granted and become Final Orders. The Licenses shall be in
unconditional full force and effect and shall be valid for the balance of the
current license term applicable generally to radio stations licensed to
communities located in the State of North Carolina.
7.2 Performance. The Station Assets shall have been transferred to Buyer
by Seller, and all of the terms, conditions and covenants to be complied with or
performed by Seller on or before the Closing Date shall have been duly complied
with and performed in all material respects, and Buyer shall have received from
Seller a certificate or certificates to such effect, in form and substance
reasonably satisfactory to Buyer.
7.3 Representations and Warranties. The representations and warranties
of Seller to Buyer shall be true, complete and correct in all material respects
as of the Closing Date with the same force and effect as if then made, and Buyer
shall have received from Seller a certificate or certificates to such effect, in
form and substance reasonably satisfactory to Buyer.
7.4 Consents. Seller shall have received all consents specified in
Section 3.7 of the Disclosure Schedule.
7.5 No Litigation. No litigation, proceeding, or investigation of any
kind shall have been instituted or, to Seller's knowledge, threatened which
would materially adversely affect the ability of Seller to comply with the
provisions of this Agreement or would materially adversely affect the operation
of the Station.
7.6 Documents. Seller shall have obtained, executed, where necessary,
and delivered, to Buyer, where applicable, all of the documents, reports, orders
and statements required of it herein.
7.7 Opinions of Counsel. Seller shall have delivered to Buyer an opinion
of counsel to Seller, addressed to Buyer and in the form attached hereto as
Exhibit D. In addition, Seller shall have delivered to Buyer a written opinion
of Seller's FCC counsel, dated as of the Closing Date, addressed to Buyer and in
the form attached hereto as Exhibit E.
7.8 Title Insurance Policies. Buyer shall have obtained, at its expense,
binding commitments for owner's and mortgagee's title insurance policies (fee
and leasehold) with respect to the Real Property, in form reasonably acceptable
to Buyer, at standard rates, together with copies of all documents affecting
title. The policies shall be issued and/or reinsured by companies reasonably
acceptable to Buyer and Buyer's lender, in an amount not less than the full
replacement value of each of the Real Property, insuring that title to the Real
Property is good and marketable and free and clear of all Title Defects except
for the matters listed on Section 3.6(a) of the Disclosure Schedule. The
policies shall contain extended coverage and, if required by Buyer, contain
zoning, contiguity, access, encroachment, easement and comprehensive
endorsements and such other affirmative insurance as Buyer shall reasonably
require and shall insure all appurtenant easements or servitudes.
7.9 Surveys. Buyer and Seller shall have obtained, at Buyer's expense,
an "As Built" survey of each of the Real Property certified to Buyer, Buyer's
lender and the title insurance company issuing the applicable policy in a manner
reasonably acceptable to Buyer, Buyer's lender and the title insurance company
by a registered land surveyor, dated not more than forty-five (45) days prior to
the Closing, and complying with the minimum detail requirements for land title
surveys as adopted by the American Land Title Association and American Congress
on Surveying and Mapping. The "As Built" surveys received by Buyer hereto shall
have indicated that the radio transmitter sites, towers and antennae used or
held for use in the business and operation of the Station are located on real
property constituting Owned Real Property.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF SELLER
The performance of the obligations of Seller hereunder is subject, at
the election of Seller, to the following conditions precedent:
8.1 Performance. All of the terms, conditions and covenants to be
complied with or performed by Buyer on or before the Closing Date shall have
been duly complied with and performed in all material respects, and Seller shall
have received from Buyer a certificate or certificates to such effect, in form
and substance reasonably satisfactory to Seller.
8.2 Representations and Warranties. The representations and warranties
of Buyer to Seller shall be true, complete and correct in all material respects
as of the Closing Date with the same force and effect as if then made, and
Seller shall have received from Buyer a certificate or certificates to such
effect, in form and substance reasonably satisfactory to Seller.
8.3 Government Approvals. All required governmental filings shall have
been made and all requisite governmental approvals for the consummation of the
transactions contemplated hereby shall have been granted.
8.4 Documents. Buyer shall have obtained, executed, where necessary, and
delivered to Seller where applicable, all of the documents, reports, orders and
statements required of it herein.
8.5 Opinion of Counsel. Buyer shall have delivered to Seller an opinion
of counsel to Buyer, addressed to Seller and in the form attached hereto as
Exhibit F.
8.6 No Litigation. No litigation, proceeding, or investigation of any
kind shall have been instituted or, to Buyer's knowledge, threatened which would
materially adversely affect the ability of Buyer to comply with the provisions
of this Agreement.
ARTICLE IX
INDEMNIFICATION
9.1 Indemnification by Seller. From and after the Closing Date, Seller
agrees to and shall jointly and severally indemnify, defend and hold Buyer, its
affiliates and their respective successors and assigns harmless, and shall
reimburse Buyer for and against any and all actions, losses, expenses, damages,
liabilities, taxes, penalties or assessments, judgments and costs (including
reasonable legal expenses related thereto) resulting from or arising out of:
(a) Any breach by Seller of any representation, or warranty contained in
this Agreement, the Non-Compete Agreement, or in any certificate, exhibit,
schedule, or other document furnished to or to be furnished pursuant hereto or
in connection with the transactions contemplated hereby;
(b) Any non-fulfillment or breach by Seller of any covenant, agreement,
term or condition contained in this Agreement or in any certificate, exhibit,
schedule, or other document furnished or to be furnished pursuant hereto or in
connection with the transactions contemplated hereby;
(c) Any material inaccuracy in any covenant, representation, agreement
or warranty by Seller;
(d) Any liabilities of any kind or nature, absolute or contingent not
expressly assumed by Buyer pursuant to this Agreement including, without
limitation, any liabilities relating to or arising from the business and
operation of the Station by Seller prior to the Closing Date;
(e) The actual, alleged or threatened release, storage, transportation,
treatment or generation of Hazardous Substances generated, stored, used,
disposed of, treated, handled or shipped by Seller or any prior owner or lessee
of any of the Real Property on or before the Closing Date, but regardless of
whether discovered on, before or after the Closing Date;
(f) Any cleanup of Hazardous Substances released, disposed of or
discharged: (A) on, beneath or adjacent to any of the Real Property prior to or
on the Closing Date, but regardless of whether discovered on, before or after
the Closing Date; or (b) at any other location if such substances were
generated, used, stored, disposed of, treated, transported or released by Seller
or any prior owner of the Real Property prior to or on the Closing Date, but
regardless of whether discovered on, before or after the Closing Date; and
(g) The installation of any pollution control equipment or other
equipment to bring the Station and the Station Assets into compliance with any
environmental laws as of the Closing Date if such equipment was installed
because the Station or the Station Assets were not in compliance with any
then-current environmental laws as of the Closing Date.
(h) The enforcement of this Article IX.
Notwithstanding any other provision contained herein, Seller shall be
solely responsible for any fine or forfeiture imposed by the Commission relating
to the operation of the Station prior to the Closing Date.
9.2 Guarantee. Xxxxxx Communications Corporation hereby irrevocably and
unconditionally guarantees to Buyer the prompt and complete performance of the
obligations imposed upon Seller under Section 9.1. Guarantor consents and agrees
that Buyer and Seller may, at any time and from time to time, without notice or
demand, whether before or after any actual or purported termination, repudiation
or revocation of this Agreement by the Guarantor, and without affecting the
enforceability or continuing effectiveness hereof as to Guarantor:
(a) Supplement, restate, modify, amend, increase, decrease, extend,
renew or otherwise change the time for payment or the terms of this Agreement or
any part thereof;
(b) Supplement, restate, modify, amend, increase, decrease or waive, or
enter into or give any agreement, approval or consent with respect to, this
Agreement or any part thereof, or any of the Transaction Documents, or any
condition, covenant, default, remedy, right, representation or term thereof or
thereunder;
(c) Accept partial payments;
(d) Release any person from any personal liability with respect to this
Agreement or any part thereof; or
(e) Consent to the merger, change or any other restructuring or
termination of the corporate or partnership existence of Buyer or any other
person, and correspondingly restructure the obligations evidenced hereby, and
any such merger, change, restructuring or termination shall not affect the
liability of Guarantor or the continuing effectiveness hereof, or the
enforceability hereof with respect to all or any part of the obligations
evidenced hereby.
9.3 Indemnification by Buyer. From and after the Closing Date, Buyer
agrees to and shall indemnify, defend and hold Seller harmless, and shall
reimburse Seller for and against any and all actions, losses, expenses, damages,
liabilities, taxes, penalties or assessments, judgments and costs (including
reasonable legal expenses related thereto), resulting from or arising out of:
(a) Any breach by Buyer of any covenant, agreement, term, condition,
representation, or warranty contained in this Agreement or in any certificate,
exhibit, schedule, or any other document furnished or to be furnished pursuant
hereto or in connection with the transactions contemplated hereby;
(b) Any non-fulfillment by Buyer of any covenant contained in this
Agreement, or in any certificate, exhibit, schedule, or other document furnished
or to be furnished pursuant hereto or in connection with the transactions
contemplated hereby; and
(c) Any liabilities of any kind or nature, absolute or contingent,
relating to or arising from the business and operation of the Station subsequent
to the Closing Date.
(d) The enforcement of this Article IX.
9.4 Notification of Claims.
(a) A Party entitled to be indemnified pursuant to Sections 9.1 or 9.3
(the "Indemnified Party") shall notify the Party liable for such indemnification
(the "Indemnifying Party") in writing of any claim or demand which the
Indemnified Party has determined has given or could give rise to a right of
indemnification under this Agreement. Subject to the Indemnifying Party's right
to defend in good faith third party claims as hereinafter provided, the
Indemnifying Party shall satisfy its obligations under this Article IX within
thirty (30) days after the receipt of a written notice thereof from the
Indemnified Party. The failure of the Indemnified Party to provide notice as
required under this Section 9.4(a) shall not affect the liability of the
Indemnifying Party under this Article IX unless the failure to give such notice
materially adversely affects the Indemnifying Party's ability to defend against
the claim giving rise to the Indemnified Party's claim.
(b) If the Indemnified Party shall notify the Indemnifying Party of any
claim or demand pursuant to Section 9.4(a), and if such claim or demand relates
to a claim or demand asserted by a third party against the Indemnified Party
which the Indemnifying Party acknowledges is a claim or demand for which it must
indemnify or hold harmless the Indemnified Party under Sections 9.1 or 9.3, the
Indemnifying Party shall have the right to employ counsel acceptable to the
Indemnified Party to defend any such claim or demand asserted against the
Indemnified Party. The Indemnified Party shall have the right to participate in
the defense of any such claim or demand. The Indemnifying Party shall notify the
Indemnified Party in writing, as promptly as possible (but in any case before
the due date for the answer or response to a claim) after the date of the notice
of claim given by the Indemnified Party to the Indemnifying Party under Section
9.4(a) of its election to defend in good faith any such third party claim or
demand. So long as the Indemnifying Party is defending in good faith any such
claim or demand asserted by a third party against the Indemnified Party, the
Indemnified Party shall not settle or compromise such claim or demand. The
Indemnified Party shall make available to the Indemnifying Party or its agents
all records and other materials in the Indemnified Party's possession reasonably
required by it for its use in contesting any third party claim or demand.
Whether or not the Indemnifying Party elects to defend any such claim or demand,
the Indemnified Party shall have no obligations to do so. Upon payment of any
claim or demand pursuant to this Article IX, the Indemnifying Party shall, to
the extent of payment, be subrogated to all rights of the Indemnified Party.
ARTICLE X
MISCELLANEOUS
10.1 Assignment. This Agreement shall not be assigned or
conveyed by either Party hereto to any other person or entity without the prior
written consent of the other Party hereto; provided, however, that Buyer may
assign this Agreement without Seller's prior consent (i) to one or more
corporations or other entities affiliated with Buyer if such assignment does not
delay the Closing Date, and (ii) to Buyer's lender for security purposes.
Subject to the foregoing, this Agreement shall be binding and shall inure to the
benefit of the Parties hereto, their successors and assigns.
10.2 Survival of Representations and Warranties. The representations and
warranties made by the Parties herein or pursuant hereto shall survive the
Closing Date for a period of twelve (12) months notwithstanding any
investigation made by Buyer with respect thereto.
10.3 Brokerage. Seller and Buyer warrant and represent to one another
that, with the exception of Star Media Group, Inc., broker for the Buyer, there
has been no broker in any way involved in the transactions contemplated hereby
and that no one other than Star Media Group, Inc. is or will be entitled to any
fee or other compensation in the nature of a brokerage fee or finder's fee as a
result of the Closing hereunder. Buyer shall be wholly responsible for any
brokerage or other fee due to Star Media Group, Inc.
10.4 Expenses of the Parties. It is expressly understood and agreed that
all expenses of preparing this Agreement and of preparing and prosecuting the
Assignment Application with the Commission, and all other expenses, whether or
not the transactions contemplated hereby are consummated, shall be borne solely
by the Party who shall have incurred the same and the other Party shall have no
liability in respect thereto, except as otherwise provided herein. All costs of
transferring the Station Assets in accordance with this Agreement, including
recordation, transfer and documentary taxes and fees, and any excise, sales or
use taxes, shall be borne equally by Seller and Buyer. Any filing or grant 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.
10.5 Entire Agreement. This Agreement, together with any related
disclosure schedule or exhibits, contains all the terms agreed upon by the
Parties with respect to the subject matter herein, and supersedes all prior
agreements and understandings among the Parties and may not be changed or
terminated orally. No attempted change, termination or waiver of any of the
provisions hereof shall be binding unless in writing and signed by the Party
against whom the same is sought to be enforced.
10.6 Headings. The headings set forth in this Agreement have been
inserted for reference only and shall not be deemed to limit or otherwise
affect, in any manner, or be deemed to interpret in whole or in part, any of the
terms or provisions of this Agreement. Unless otherwise specified herein, the
section references contained herein refer to sections of this Agreement.
10.7 Governing Law. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of New York.
10.8 Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all of
such shall constitute one and the same instrument.
10.9 Notices. Any notices or other communications shall be in writing
and shall be considered to have been duly given when deposited into first class,
certified mail, postage prepaid, return receipt requested, delivered personally
(which shall include delivery by Federal Express or other recognized overnight
courier service that issues a receipt or other confirmation of delivery) or
delivered via facsimile machine;
If to Seller or Guarantor:
Xxxxxx Communications Corporation
Attn: Xxxxx X. Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxx X. Xxxxxx
Xxxxx Xxxxx & Xxxxx P.L.C.
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Phone: (000) 000-0000
If to Buyer or Programmer:
Pinnacle Broadcasting Company, Inc.
Attn: Xxxxxx X. Xxxxxxx
0000 X. Xxxxxxx 000
Xxxxx 000
Xxxxx Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Phone: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxx Xxxxxxxx, Esq.
Winthrop, Stimson, Xxxxxx & Xxxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Phone: (000) 000-0000
Any Party may at any time change the place of receiving notice by giving
notice of such change to the other as provided herein.
10.10 Specific Performance. Seller acknowledges that the Station is of a
special, unique and extraordinary character and that damages are inadequate to
compensate Buyer for Seller's breach of this Agreement. Accordingly, in the
event of a material breach by Seller of its representations, warranties,
covenants and agreements under this Agreement, Buyer may xxx at law for damages
or, at Buyer's sole election and in lieu of any other remedy available to it,
Buyer may seek a decree of specific performance requiring Seller to fulfill its
obligations under this Agreement, and Seller agrees to waive its defense that an
adequate remedy at law exists.
10.11 Consent to Jurisdiction. Seller and Buyer hereby submit to the
nonexclusive jurisdiction of the courts of the State of New York and the federal
courts of the United States of America located in such state solely in respect
of the interpretation and enforcement of the provisions hereof and of the
documents referred to herein, and hereby waive, and agree not to assert, as a
defense in any action, suit or proceeding for the interpretation or enforcement
hereof or of any such document, that they are not subject thereto or that such
action, suit or proceeding may not be brought or is not maintainable in said
courts or that this Agreement or any of such documents may not be enforced in or
by said courts or that the Station property is exempt or immune from execution,
that the suit, action or proceeding is brought in an inconvenient forum, or that
the venue of the suit, action or proceeding is improper.
10.12 Further Assurances. Seller and Buyer agree to execute all such
documents and take all such actions after the Closing Date as the other Party
shall reasonably request in connection with carrying out and effectuating the
intent and purpose hereof and all transactions and things contemplated by this
Agreement, including, without limitation, the execution and delivery of any and
all confirmatory and other documents in addition to those to be delivered on the
Closing Date and all actions which may reasonably be necessary or desirable to
complete the transactions contemplated hereby.
10.13 Public Announcements. No public announcement (including an
announcement to employees) or press release concerning the transactions provided
for herein shall be made by either Party without the prior approval of the other
Party, except as required by law.
10.14 Severability. In case any one or more of the provisions contained
in this Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality, and enforceability of the remaining provisions
will not in any way be affected or impaired.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Parties hereto have executed or have caused this
Agreement to be executed by a duly authorized officer on the day and year first
above written.
SELLER
GREAT AMERICAN EAST, INC.
By:
Title:
BUYER
PINNACLE MYRTLE CORP.
By:
Title: President
For purposes of Section 9.2 of this Asset Purchase Agreement
XXXXXX COMMUNICATIONS CORPORATION
By:
Title:
For purposes of Sections 1.4, 2.2 and 2.4 of this Asset Purchase Agreement
insofar as they amend the Program Service Agreement
WFXC AND WDUR, INC.
By:
Title:
