Exhibit 10.01
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), is made this 16/th/ day
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of August, 1999 by and among NextMedia Group, LLC, a Delaware limited liability
company ("Buyer") and Rambaldo Communications, Inc., a Pennsylvania corporation,
Rambaldo AM Communications, Inc., a Pennsylvania corporation and Rambaldo AM
Broadcasting Company, a Pennsylvania corporation (hereinafter individually and
collectively referred to as "Sellers").
W I T N E S S E T H:
WHEREAS, Rambaldo Communications, Inc. owns certain assets used in
connection with the operation of radio stations WRKT-FM, North East,
Pennsylvania ("WRKT ") and WRTS-FM, Erie, Pennsylvania ("WRTS");
WHEREAS, Rambaldo AM Broadcasting Company owns certain assets used in
connection with the operation of radio station WFLP(AM), Erie, Pennsylvania
("WFLP");
WHEREAS, Rambaldo AM Communications, Inc. owns certain assets used in
connection with the operation of radio station WLKK(AM), Erie, Pennsylvania
("WLKK");
WHEREAS, Sellers desire to sell the WRKT, WRTS, WFLP and WLKK (collectively
referred to as the "Stations") and Buyer desires to purchase substantially all
of the assets of Sellers used in or useful to the operation of the Stations in
accordance with the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto, intending to
be legally bound hereby agree as follows:
ARTICLE 1
PURCHASE OF ASSETS
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1.1 Transfer of Assets. On the terms and subject to the conditions hereof
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and subject to Section 1.2, on the Closing Date (as hereinafter defined),
Sellers shall assign, transfer, convey and deliver to Buyer and Buyer shall
acquire and assume from Sellers, all of the right, title and interest of Sellers
in and to all of the following assets, properties, interests and rights of
Sellers (collectively the "Stations Assets") free and clear of all liens,
claims, or encumbrances other than Permitted Liens (as defined in Section
6.1.10):
1.1.1 All of Sellers' rights in and to the licenses, permits and
other authorizations issued to Sellers by any governmental authority, including
those issued by the Federal Communications Commission (the "FCC") (hereafter
referred to as the "Stations Licenses"), used in connection with the operation
of the Stations, along with renewals or modifications of such items between the
date hereof and the Closing Date, including but not limited to those listed in
Schedule 1.1.1 hereto;
1.1.2 All equipment, office furniture and fixtures, office
materials and supplies, inventory, spare parts and all other tangible personal
property of every kind and description, and Sellers' rights therein, owned,
leased or held by Sellers and used in or useful to the operations of the
Stations, including but not limited to those items described or listed in
Schedule 1.1.2 hereto, together with any replacements thereof, improvements or
additions thereto made between the date hereof and the Closing Date, and less
any retirements or dispositions thereof made between the date hereof and the
Closing Date in the ordinary course of business of Sellers;
1.1.3 All of Sellers' rights in and under those contracts,
agreements, leases and legally binding contractual rights of any kind, written
or oral, relating to the operation of the
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Stations ("Contracts") that are listed in Schedule 1.1.3 hereto, and (i) those
Contracts entered into by Sellers between the date hereof and the Closing Date
in the ordinary course of business of Sellers, subject to Section 1.2.4 and
Section 8.1 hereto; (ii) all Contracts for the sale of advertising time for
cash, subject to Section 8.1 hereto; and (iii) all Contracts for consideration
other than cash, such as merchandise, services or promotional consideration
("Trade Agreements"), subject to Sections 8.1 and 17,10 hereto. Notwithstanding
Section 8.6 hereto, the Seller has the right to supplement Schedule 1.1.3 for a
period not to exceed ten (10) days from the date of execution of this Agreement.
However, Buyer shall not be required to assume any material contracts included
in the supplement and/or which contracts in the aggregate are considered
material by the Buyer.
1.1.4 All of Sellers' rights in and to all processes, patents, trade
secrets, proprietary information, call letters, trademarks, trade names, service
marks, franchises, copyrights, Internet domain names, including registrations
and applications for registration of any of them, computer software programs and
programming material of whatever form or nature, jingles, slogans, the Stations'
logos and all other logos or licenses to use same and all other intangible
property rights of Sellers, which are used in connection with the operation of
the Stations, including but not limited to those listed in Schedule 1.1.4 hereto
(collectively, the "Intellectual Property") together with any associated good
will and any additions thereto between the date hereof and the Closing Date;
1.1.5 All of Sellers' rights in and to all the files, documents,
records, and books of account relating to the operation of the Stations or to
the Stations Assets, including, without limitation, each Station's public files,
programming information and studies, technical information and engineering data,
news and advertising studies or consulting reports, marketing
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and demographic data, sales correspondence, lists of advertisers, promotional
materials, credit and sales reports and filings with the FCC, originals of all
written Contracts to be assigned hereunder, logs, software programs and books
and records relating to employees, financial, accounting, operation and
technical matters; but excluding records relating solely to any Excluded Asset
(as hereinafter defined);
1.1.6 All of Sellers' rights under manufacturers' and vendors'
warranties relating to items included in the Stations Assets and all similar
rights against third parties relating to items included in the Stations Assets;
1.1.7 All real property owned by Sellers together with all
appurtenant easements thereunto and all structure, fixtures and improvements
located thereon used in connection with the Stations operations as more fully
described in Schedule 1.1.7 hereto, together with any additions thereto between
the date hereof and the Closing Date ("Owned Real Estate");
1.1.8 All rights and interest of Sellers under any and all of the
leases of real property used in connection with the Stations operations (the
"Leased Real Estate") (collectively with the Owned Real Estate, the "Real
Estate") which Leased Real Estate is identified and described in Schedule 1.1.8.
1.1.9 All such other assets, properties, interests and rights owned
by Sellers that are used in connection with the business and operation of the
Stations or that are located as of the Closing Date on the Leased Real Estate,
except Excluded Assets.
1.1.10 All of Sellers' rights in and to all causes of action for any
past infringement of any of the Intellectual Property.
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1.2 Excluded Assets. Notwithstanding anything to the contrary contained
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herein, it is expressly understood and agreed that the Stations Assets shall not
include the following assets or any right, title or interest therein (the
"Excluded Assets"):
1.2.1 All cash, marketable securities, and cash equivalents of
Sellers on hand and/or in banks;
1.2.2 All accounts receivable or notes receivable of Sellers.
1.2.3 All tangible and intangible personal property of Sellers
disposed of or consumed in the ordinary course of business of Sellers between
the date hereof and the Closing Date, as permitted hereunder;
1.2.4 All Contracts that have terminated or expired on or prior to
the Closing Date in the ordinary course of business of Sellers;
1.2.5 Sellers' corporate seals, minute books, charter and/or
partnership documents, corporate stock record books and such other books and
records as pertain to the organization, existence, share capitalization or
partnership interests of Sellers and duplicate copies of such financial records
as are necessary to enable Sellers to file their tax returns and reports as well
as any other records or materials relating to Sellers generally;
1.2.6 Contracts of insurance and all insurance proceeds or claims
made by Sellers arising or related to the Stations' Assets prior to Closing
(except to the extent made after the date hereof with respect to Stations
Assets);
1.2.7 The Employee Benefit Plans (as defined hereinafter) and the
assets thereof;
1.2.8 Any right to use the names "Rambaldo Broadcasting" or "Rambaldo
Communications" and any variations thereof;
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1.2.9 All contracts entered into before this Agreement and not listed
in Schedule 1.1.3 except (i) contracts for the sale of advertising for cash and
(ii) subject to the requirements of Section 17.10, Trade Agreements;
1.2.10 Those specific assets identified on the Excluded Assets
Schedule attached to this Agreement as Schedule 1.2.10;
1.2.11 Except as described in Section 1.1.9, all of Sellers' rights
in and to all causes of action;
1.2.12 All tax refunds relating to the period prior to the Closing.
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
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2.1 Assumption of Obligations. Subject to the provisions of this Section
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2.1 and Section 2.2, on the Closing Date, Buyer shall assume the obligations of
Sellers arising or to be performed after the Closing Date under the Contracts
referred to in Section 1.1.3 hereto in effect on the Closing Date, and ail
liabilities and obligations that arise from the ownership or operation of the
Stations Assets after the Closing Date, including those listed on Schedule 2.1.
All of the foregoing liabilities and obligations shall be referred to herein
collectively as the "Assumed Liabilities."
2.2 Retained Liabilities. Notwithstanding anything contained in this
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Agreement to the contrary, Buyer does not assume or agree to pay, satisfy,
discharge or perform, and will not be deemed by virtue of the execution and
delivery of this Agreement or any document delivered at the execution of this
Agreement, or as a result of the consummation of the transactions contemplated
by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge
or
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perform, any liability or obligation of the Sellers other than the Assumed
Liabilities, including any of the following liabilities or obligations of the
Sellers (the "Retained Liabilities"):
(a) All obligations or liabilities of Sellers or any predecessor
or Affiliate of Sellers which relate to any of the Excluded Assets;
(b) Other than taxes expressly allocated pursuant to other
provisions of this Agreement, tax liabilities of any and all kinds (federal,
state, local, and foreign) of Sellers including, without limitation, any
liabilities for taxes on or measured by income, liabilities for withheld federal
and state income taxes and employee F.I.C.A. (Federal Insurance Contribution
Act) or employer F.I.C.A, and liabilities for income taxes arising as a result
of the transfer of the Stations Assets or otherwise by virtue of the
consummation of the transactions contemplated hereby;
(c) With the exception of Real Estate Leases, all liabilities or
obligations of Sellers owed to any of Sellers or its Affiliates (as hereinafter
defined);
(d) All liabilities or obligations arising out of any breach by
Sellers or any predecessor or Affiliate of any of the terms or conditions of any
provision of any Real Estate Lease or Contract;
(e) All liabilities and obligations of Sellers or any
predecessor or Affiliate of Sellers resulting from, caused by or arising out of,
any violation of law;
(f) Any claims, liabilities, and obligations of Sellers as an
employer, including, without limitation, liabilities for wages, supplemental
unemployment benefits, vacation benefits, severance benefits, retirement
benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or
any other employee benefits, withholding tax liabilities,
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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
Sellers or arising out of any labor matter involving Sellers as an employer, and
any claims, liabilities and obligations arising from or relating to the Employee
Benefit Plans;
(g) Any claims, liabilities, losses, damages, or expenses
relating to any litigation, proceeding, or investigation of any nature arising
out of the operations of the Stations on or prior to the Closing Date including,
without limitation, any claims against or any liabilities for injury to or death
of persons or damage to or destruction of property, any workers' compensation
claims, and any warranty claims;
(h) Except as provided in Section 3.3, any accounts payable,
other indebtedness, obligations or accrued liabilities of Sellers, except for
the Assumed Liabilities;
(i) Any liabilities or obligations resulting from the failure to
comply with or imposed pursuant to any environmental protection, health, or
safety laws or regulations or resulting from the generation, storage, treatment,
transportation, handling, disposal, release of hazardous substances, solid
wastes, and liquid and gaseous matters by Sellers and by any other person in
relation to Sellers or the Stations, including, without limitation, any
liability or obligation for cleaning up waste disposal sites from or related to
acts or omissions on or prior to the Closing Date;
(j) Any fees and expenses incurred by Sellers in connection with
negotiating, preparing, closing, and carrying out this Agreement and the
transactions contemplated by this Agreement, including, without limitation, the
fees and expenses of Sellers' attorneys, accountants, consultants and brokers.
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ARTICLE 3
CONSIDERATION
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3.1 Delivery of Consideration.
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3.1.1 In exchange for the Stations Assets, in addition to the
assumption of certain obligations of Sellers pursuant to Section 2.1 above,
Buyer shall, subject to Articles I 1 and 12 hereof, at the Closing (as
hereinafter defined) deliver to Sellers: Fifteen Million Dollars
($15,000,000.00) (subject to adjustment, the "Purchase Price"); consisting of
(i) Twelve Million Dollars ($12,000,000.00) by wire transfer of immediately
available funds, subject to adjustment pursuant to both the provisions of
Section 3.3 and the $500,000 Holdback Amount required by Section 8.10, below
(the "Cash Price") and (ii) Three Million Dollars ($3,000,000.00) in the form of
an equity interest in Buyer (the "Stock"). (For purposes of this Section,
references to the Buyer shall include its permitted assignees if Buyer assigns
this Agreement; however, Buyer acknowledges that Sellers shall receive an equity
interest in the "parent" company.) If the Stock is a certificated security, the
Buyer will deliver to Sellers at closing, certificate(s) representing the Stock.
Other than as provided in Section 3.3, there shall be no further Purchase Price
adjustments.
3.1.2 The Stock will be of the common variety (i. e. one-vote/one-
share, no mandatory dividend, no pre-emptive or anti-dilution rights, no
liquidation preferences, etc.) or approximations of the foregoing if the entity
is an LLC or partnership. The number of shares or the percentage of LLC or
partnership membership interests, as the case may be, comprising the Stock will
be determined on a pro rata basis as a similar size investment by the first
institutional investors in Buyer. (For illustration purposes only, if the first
institutional investor receives 50% of the Buyer's common stock in exchange for
$30,000,000, Sellers will receive 5% of the
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Buyer's common stock.) Sellers acknowledge that Buyer's institutional investors
may require additional terms and conditions, including, without limitation,
coupons, preferences, redemption rights, and warrants, which will provide them
with a distinct, senior, or preferred security. In such case, an independent
investment banker of Buyer's choosing shall determine what premium, if any, was
paid for the distinctions and what is the common stock equivalent purchase
price. The fees and expenses of the investment banker shall be paid by Buyer and
its determination shall be conclusive on the parties, absent manifest
mathematical error. Further, Sellers acknowledge that principals of Buyer shall
hold equity interests which will include additional terms and conditions which
will provide them with a distinct, senior or preferred security.
3.1.3 (i) The Purchase Price shall be paid to Sellers in the amounts
and to the accounts of Sellers specified in written wiring instructions
delivered to Buyer at least ten days prior to the Closing Date (the "Wiring
Instructions"). The Wiring Instructions shall also identify the Sellers to
receive Stock and the relative portion of the Stock each Seller is to receive.
(ii) Sellers may, by written notice given to Buyer at least ten days
prior to the Closing Date, elect to receive the entire Purchase Price in cash,
in which case no Stock will be delivered to Seller at Closing.
3.2 Allocation of Consideration. Within thirty (30) days after the
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Closing Date, Sellers and Buyer shall negotiate in good faith an allocation of
the total consideration among the Station's Assets (the "Allocation"). The
division of the Purchase Price among Sellers, as specified in the Wiring
Instructions, shall not be a factor considered in making the Allocation. If the
Allocation is not agreed upon within thirty (30) days after the Closing Date,
Buyer will order an appraisal of the Stations Assets from Broadcast Investments
Analysts ("BIA") and
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BIA will determine the Allocation. The appraisal, if required, shall be provided
to Sellers within forty five (45) days after it is ordered. Buyer and Sellers
agree to prepare and file all income tax returns (including, if applicable, Form
8594) in a manner consistent with the Allocation and will not in connection with
the filing of such returns make any allocation that is contrary to the
Allocation. Buyer and Sellers agree to consult with each other with respect to
all issues related to the Allocation in connection with any tax audits,
controversy or litigation. The fees for BIA shall be borne equally by Buyer and
Sellers.
3.3 Allocations and Prorations.
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3.3.1 The operation of the Stations and the income and expenses
attributable thereto through 11:59 p.m. on the Closing Date (the "Effective
Time") shall be for the account of Sellers and thereafter shall be for the
account of Buyer. Expenses for goods and services received both before and
after the Effective Time, utilities charges, ad valorem, real estate, property
and other taxes (other than income taxes, which shall be Sellers' sole
responsibility for all taxable periods ending prior to and including the Closing
Date, and those taxes arising from the sale and transfer of the Stations Assets,
which shall be paid as set forth in Section 13.2), income and expenses under the
Contracts (other than Trade Agreements), prepaid expenses, music and other
license fees (including any retroactive adjustments thereof), wages, salaries,
and other employee benefit expenses (whether such wages, salaries or benefits
are current or deferred expenses) (including, without limitation, liabilities
accrued up to the Effective Time for bonuses, commissions, vacation pay, payroll
taxes, workers' compensation and social security taxes) and rents and similar
prepaid and deferred items shall be prorated between Sellers and Buyer in
accordance with the foregoing. Notwithstanding the foregoing, no proration
shall be made with respect to (i) severance or sick leave with respect to any
employee or (ii) any prepaid expense or
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other deferred item unless Buyer will receive a benefit in respect of such
prepayment or deferral after the Effective Time. For purposes of this Section
3.3.1, ad valorem and other real estate taxes shall be apportioned on the basis
of the taxes assessed for the most recently-completed calendar year, with a
reapportionment as promptly as practicable after the tax rates and real property
valuations for the calendar year in which the Closing occurs can be ascertained.
In addition, Buyer shall be entitled to a credit in this proration process for
the amount of any taxes (or other governmental charges) that are due and payable
by Sellers, but are being contested by Sellers in good faith in appropriate
proceedings and are secured by Liens on the Stations Assets that have not been
removed as of or before the Closing (but once such amounts are finally
determined, Buyer shall use such credit to remove such liens and return to
Sellers the excess of (i) the amount of such credit minus (ii) the amount of
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such taxes or other governmental charges as finally determined, or Sellers shall
pay to Buyer the deficiency, as appropriate).
3.3.2 Allocation and proration of the items set forth in Subsection
3.3.1 above shall be made by Buyer and a statement thereof given to Sellers
within thirty (30) days after the Closing Date. Sellers shall give written
notice of any objection thereto within twenty (20) business days after delivery
of such statement, detailing the reason for such objection and stating the
amount of the proposed final allocation and proration. If a timely objection is
made and the parties cannot reach agreement within thirty (30) days after
receipt of the objection as to the amount of the final allocation and proration,
the matter shall be referred to Xxxxxx Xxxxxxxx, L.L.P. (the "Independent
Auditor") to resolve the matter, whose decision will be final and binding on the
parties, and whose fees and expenses shall be borne by Buyer and Sellers in
accordance with the following: each party shall pay an amount equal to the sum
of all fees and expenses of the Independent Auditor on a proportional basis
taking into account the amount of
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the net allocation and proration proposed by each of Buyer and Sellers and the
amount of the final allocation and proration determined by the Independent
Auditor (for example, if Buyer proposed a payment of $10 to Sellers, Sellers
proposed a payment of $100, and the Independent Auditor proposed a payment of
$30, Buyer would pay 20/90ths of the Independent Auditor's fees and Sellers
would pay 70/90ths of those fees based on the $90 in dispute between the
parties).
ARTICLE 4
CLOSING
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4.1 Closing. The consummation of the transactions contemplated herein
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(the "Closing") shall occur, except as otherwise mutually agreed upon by Buyer
and Sellers (i) within ten (10) business days after the FCC Consents (as
hereinafter defined) to the assignments of the Stations Licenses have become
Final Orders (as hereinafter defined) or (ii) at such later date that all other
terms and conditions as set forth in Articles 11 and 12 have been satisfied, or
such other date as may be mutually agreed to by the parties ("Closing Date").
For purposes of the Agreement, "Final Order" means action by the FCC consenting
to the assignments contemplated by this Agreement which is not reversed, stayed,
enjoined, set aside, annulled or suspended, and with respect to which action no
timely request for stay, petition for rehearing, or reconsideration, application
for review or appeal is pending, and as to which the time for filing any such
request, petition or appeal or reconsideration by the FCC on its own motion has
expired. The Closing shall be held in the offices of Xxxxxxxxx & Associates,
P.A., Xxx XX Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx, 00000, or at such place
as the parties hereto may agree.
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ARTICLE 5
GOVERNMENTAL CONSENTS
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5.1 FCC Consent. It is specifically understood and agreed by Buyer and
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Sellers that the Closing and the assignments of the Stations Licenses and the
transfer of the Stations Assets are expressly conditioned on and are subject to
the prior consent and approval of the FCC ("FCC Consents").
5.2 FCC Applications. Within ten (10) business days after the execution
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of this Agreement or such earlier time as shall be agreed to by all of the
parties hereto, Buyer and Sellers shall file applications with the FCC for the
FCC Consent ("FCC Applications"). Buyer and Sellers shall prosecute the FCC
Applications with all reasonable diligence and otherwise use their best efforts
to obtain the FCC Consent as expeditiously as practicable, (but neither Buyer
nor Sellers shall have any obligation to satisfy complainants or the FCC by
taking any steps which would have a material adverse effect upon Buyer or
Sellers).
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SELLERS
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6.1 Representations and Warranties of Sellers. Sellers, jointly and
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severally, represent and warrant to the Buyer the following:
6.1.1 Organization, Good Standing, Etc. (a) Each of Sellers is a
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corporation duly organized and validly existing under the laws of its
jurisdiction of incorporation or organization, has all requisite corporate power
and authority to own, lease and operate its properties and to carry on its
business as now being conducted and is duly qualified to do business in each
jurisdiction in which the nature of its business or the ownership or leasing of
its properties makes such qualification necessary.
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(b) The Sellers have all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Sellers and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Sellers. This
Agreement has been duly executed and delivered by Sellers and constitutes the
legal, valid and binding obligations of each Seller, enforceable against it in
accordance with its terms.
6.1.2 Authority. Assuming the consents contemplated by Sections
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6.1.2 and 6.1.14 are obtained, neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby (i)
violate, conflict with or result in any breach of any provision of the
Certificates or Articles of Incorporation or Bylaws of Sellers, (ii) violate,
conflict with or will result in a violation or breach of, or constitute a
default (with or without due notice or lapse of time or both) under, or permit
the termination of, or will result in the acceleration of, or entitle any party
to accelerate (whether as a result of the sale of the Stations Assets or
otherwise) any material obligation, or result in the loss of any material
benefit, or give rise to the creation of any material lien, charge, security
interest or encumbrance upon any of the properties or assets of Sellers or any
of their subsidiaries under any of the terms, conditions or provisions of any
loan or credit agreement, note, bond, mortgage, indenture or deed of trust, or
any material license, lease, agreement or other material instrument or
obligation to which any of them is a party or by which they or any of their
properties or assets may be bound or affected; (iii) violate any order, writ,
judgment, injunction, decree, statute, rule or regulation, of any court,
administrative agency or commission or other governmental authority or
instrumentality (a "Governmental Entity") applicable to Sellers or any of their
respective properties or assets. No
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consent, approval, order or authorization of, or registration, declaration or
filing with, any Governmental Entity is required by or with respect to the
Sellers in connection with the execution and delivery of this Agreement by the
Sellers or the consummation by the Sellers of the transactions contemplated
hereby, except for the consents of the FCC to the assignments of the Stations
Licenses (as defined in Section 1.1.1).
6.1.3 Financial Statements. Attached as Schedule 6.1.3 are copies of
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the Stations' balance sheets as of December 31, 1998, and the related income
statements and, with respect to WRKT and WRTS, the pro forma broadcast cash flow
analyses and the internally prepared financial statements including income
statements and pro forma broadcast cash flow analyses (such financial statements
collectively being referred to as the "Sellers' Financial Statements"). The
Sellers' Financial Statements, except for the pro forma broadcast cash flow
analyses, were prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods covered thereby
and present fairly, in all material respects, the financial position, results of
operations and changes in cash flows of the Stations as of such dates and for
the periods then ended (subject, in the case of the unaudited Sellers' Financial
Statements, to the absence of notes and to normal, recurring adjustments that
would not be material in the aggregate).
6.1.4 Absence of Undisclosed Liabilities. There are no material
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liabilities of any kind whatsoever with respect to the Stations (whether
absolute, accrued, contingent or otherwise, and whether due or to become due),
other than liabilities and obligations (x) provided for or reserved against in
the Sellers' Financial Statements or (y) arising after December 31, 1998, in the
ordinary course of business and consistent with past experience.
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6.1.5 Compliance with Applicable Laws; FCC Matters. (i) Except as
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permitted or contemplated hereby, the operations of the Stations have been and
now are being conducted in substantial compliance with each law, ordinance,
regulation, judgment, decree, injunction, rule or order of the FCC or any other
Governmental Entity binding on Sellers, the Stations or their respective
properties or assets to the extent failure to so comply could be reasonably
expected to have a material adverse effect. No investigation or review by any
Governmental Entity with respect to Sellers or the Stations is pending or, to
the Seller's knowledge, is threatened. Without limiting the generality of the
foregoing and with respect to the Stations, the Stations comply in all material
respects with the Communications Act of 1934, as amended (the "Communications
Act"), all rules, regulations and written policies of the FCC thereunder, all
obligations with respect to equal opportunity under applicable law, and all
rules and regulations of the FCC and the Federal Aviation Administration
applicable to the towers used by the Stations (including all rules regulating
hazards to air navigation, registration of radio towers, and exposure of humans
to non-ionizing radio frequency radiation). In addition, the Stations have duly
and timely filed, or caused to be filed, with the appropriate Governmental
Entities all reports, statements, documents, registrations, filings or
submissions with respect to the operations of the Stations and the ownership
thereof, including, without limitation, applications for renewal of authority
required by applicable law to be filed. All such filings complied in all
material respects with applicable laws when made and no material deficiencies
have been asserted with respect to any such filings. All the material required
by 47 C.F.R. (S) 73.3526 to be kept in the public inspection files of the
Stations is in such files. Except as disclosed on Schedule 6.1.5, Sellers have
no knowledge of any fact or circumstance relating to Sellers or the Stations
arising from noncompliance with the Communications Act, or the rules,
regulations or written policies of the FCC in effect on the date
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of this Agreement that could reasonably be expected to (a) disqualify the
Sellers from assigning the Stations Licenses to the Buyer or (b) prevent or
delay the consummation by them of the transactions contemplated by this
Agreement.
(ii) Schedule 1.1.1 lists (x) all licenses, permits and other
authorizations (including all STL licenses and construction permits) issued by
the FCC relating to the Stations as of the date of this Agreement and (y) all
licenses, permits, or authorizations issued by any other Governmental Entities
which are material to the operations of the Stations as of the date of this
Agreement. Such licenses, permits and authorizations, and all applications for
modification, extension or renewal thereof or for new licenses, permits,
permissions or authorizations that would be material to the operations of the
Stations, are collectively referred to herein as the Station Licenses (as
further defined in Section 1.1.1), each of which is in full force and effect.
The Stations have been operated in all material respects in accordance with the
terms of the Station Licenses. Except for proceedings affecting the radio
broadcast industry generally, there are no proceedings pending or, to the
Sellers' knowledge, threatened with respect to ownership or operation of the
Stations which reasonably may be expected to result in the revocation, material
adverse modification, non-renewal or suspension of any of the Station Licenses,
the denial of any pending applications for Station Licenses, the issuance of any
cease and desist order, or the imposition of any administrative actions by the
FCC or any other Governmental Entity with respect to the Station Licenses, or
which reasonably may be expected to adversely affect the Stations' ability to
operate as currently operated or the Buyer's ability to obtain assignment of the
Station Licenses. With the exception of operations pursuant to any existing
STAs set out in Section 1.1.1 hereto, and with the further exception of such
temporary reduced power operations as are necessary for routine maintenance, the
Stations operate (a) in conformity with their licenses; and (b) within the
operating power tolerances specified in 47 C.F.R. (S) 73.1560(b). No other
broadcast station or radio communications facility is causing interference to
the Stations' transmissions beyond that which is allowed by FCC rules and
regulations.
6.1.6 Litigation. Except as disclosed on Schedule 6.1.6, (i) there
----------
is no action, suit, inquiry, judicial or administrative proceeding, or
arbitration pending or, to the knowledge of
18
the Sellers, threatened against any Seller or the Stations or any of their
respective properties or assets by or before any arbitrator or Governmental
Entity nor, to the Sellers' actual knowledge, are there any investigations
relating to Sellers or the Stations or any of their respective properties or
assets pending or threatened by or before any arbitrator or Governmental Entity;
(ii) there is no judgment, decree, injunction, or order of any Governmental
Entity or arbitrator outstanding against any of Sellers or the Stations or any
of their respective properties or assets and; (iii) there is no action, suit,
inquiry, judicial or administrative proceeding pending or, to the knowledge of
the Sellers, threatened against any of the Sellers or the Stations by a third
party relating to the Sellers or the Stations Assets or any of the transactions
contemplated by this Agreement.
6.1.7 Insurance. Schedule 6.1.7 sets forth a list of all fire,
---------
liability and other forms of insurance and all fidelity bonds held by or
applicable to the Stations setting forth in respect of each such policy the
policy name, policy number, carrier, term, type of coverage and annual premium.
No event has occurred, including, without limitation, the failure to give any
notice or information, or the delivery of any inaccurate or erroneous notice or
information, which limits or impairs the rights of the insured parties under any
such insurance policies. Sellers shall cause comparable policies of insurance
to remain in effect for acts, omissions and events occurring on or prior to the
Closing Date.
6.1.8 Real Estate. Sellers have good and marketable title to the
-----------
Owned Real Estate and valid leaseholds in the Leased Real Estate, free and clear
of any Liens except for the Permitted Liens. With respect to the Stations, the
buildings (or portions thereof), improvements and fixtures that are included in
the Real Estate are suitable for their intended use. Sellers own or have a
valid contractual right to use adequate routes of ingress and egress to, from
and over all of the Real Estate necessary to operate the Stations. With respect
to the Stations, other than
19
Permitted Liens, no improvement on any of the Real Estate encroaches upon any
adjacent real property of any other person or entity. With respect to the
Stations, Schedules 1.1.7 and 1.1.8 list the street addresses and/or legal
descriptions of the Real Estate.
6.1.9 Personal Property. Schedule 1.1.2 hereto contains a list of
-----------------
all material tangible personal property and assets owned or held by Sellers, and
used in the conduct of the business and operations of the Stations (other than
Real Estate, which is addressed in the foregoing Section 6.1.8). Except as
disclosed in Schedule 1.1.2, at Closing Sellers shall own and will have good and
marketable title to all property referred to in the immediately preceding
sentence and none of such property is, or at the Closing will be, subject to any
Liens, other than Permitted Liens. The tangible personal property and fixtures
owned or used by Sellers, for the operation of the Stations (each taken as a
whole), are in good operating condition (subject to normal wear and tear) and
are sufficient to permit the conduct of the business of the Stations in material
compliance with FCC rules and regulations. On the Closing Date, Sellers shall
own or hold under valid leases all of the tangible personal property and
fixtures necessary to conduct the business of the Stations as presently
conducted. The Stations Assets to be transferred hereunder constitute all of
the assets, rights and properties that are required for the operation of the
Stations as they are now conducted.
6.1.10 Liens and Encumbrances. All properties and assets relating to
----------------------
the Stations, including leases, owned by Sellers, are free and clear of all
liens, pledges, claims, security interests, restrictions, mortgages, tenancies
and other possessory interests, conditional sale or other title retention
agreements, assessments, easements, rights of way, covenants, restrictions,
rights of first refusal, defects in title, encroachments, options or
encumbrances of any kind (collectively, "Liens") except (a) statutory Liens
securing payments not yet delinquent
20
or the validity of which are being contested in good faith by appropriate
actions, (b) Liens for taxes not yet delinquent, (c) Liens securing
indebtedness, all of which Liens will be discharged by Sellers at the Closing
upon repayment of all amounts due and owing, except with respect to the Assumed
Liabilities, (d) Liens incurred in the usual and normal conduct of the business
of the Stations, which in the aggregate do not materially detract from the value
or materially impair the present and continued use of the properties or assets
subject thereto, (e) Liens on leases arising from the provisions of such leases
and (f) zoning ordinances and other easements, rights-of-way, covenants and
restrictions of record (the Liens referred to in clauses (a) through (f) being
"Permitted Liens").
6.1.11 Environmental Matters
---------------------
On the date of this Agreement, except as disclosed on Schedule 6.1.11:
(i) The Owned Real Estate used in connection with the
Stations and the operations thereon are, and with respect to any predecessor or
prior owner, operator or lessee (each a "Predecessor") have been, in substantial
compliance with all applicable federal, state and local statutes, codes, rules
or regulations as well as common law decisions relating to the environment,
natural resources and public or employee health and safety ("Environmental
Laws");
(ii) No judicial or administrative proceedings are pending
against Sellers or, to the Sellers' knowledge, threatened against Sellers, or
any of the Owned Real Estate used in connection with the Stations alleging the
violation of or seeking to impose liability pursuant to any Environmental Law.
No notice or claim from any Governmental Entity or other person has been given
to Sellers claiming violation of or alleging any liability
21
against Sellers under remediation of any Environmental Laws in connection with
any of the Owned Real Estate used in connection with the Stations or operations
thereon;
(iii) There are no facts, circumstances or conditions on the
Owned Real Estate or the operations thereon used in connection with the Stations
or the operations thereon that are reasonably likely to give rise to an
environmental claim or result in Environmental Costs and Liabilities;
(iv) All substances, materials or waste that are regulated by
federal, state or local government, as well as any petroleum or petroleum
derived product, used or generated by Sellers or by any Predecessor in
connection with the Owned Real Estate used in connection with the Stations
("Hazardous Substances"), have been stored, used, treated, and disposed of by
such persons or on their behalf in a manner as not to result in any material
Environmental Costs or Liabilities on Sellers or Buyer. "Environmental Costs and
Liabilities" means 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
Entity or other person;
(v) There are not now, nor have there been in the past, on,
in or under any Owned Real Estate used in connection with the Stations when
owned, leased or operated by Sellers or, when owned, leased or operated by any
Predecessor, any of the following: any (w) underground storage tanks, above-
ground storage tanks, dikes or impoundments containing Hazardous Substances, (x)
asbestos containing materials, (y) polychlorinated biphenyls or (z) radioactive
substances.
(vi) Seller restates the representations and warranties in
(i)-(v) above with respect to the Lease Real Estate; provided however that the
representations and warranties
22
concerning the operations of third parties other than Sellers or any Predecessor
are made only to the best of Seller's knowledge.
(vii) The Stations' operations do not have a significant
environmental impact, as defined by 47 C.F.R. (S)1.1307.
6.1.12 Taxes. (a) All Tax Returns (as defined in sub-section (g) below)
-----
that are required to be filed on or before the execution of this Agreement by
Sellers have been duly filed on a timely basis under the statutes, rules and
regulations of each applicable jurisdiction. All such Tax Returns are complete
and accurate. Except as set forth on Schedule 6.1.12, all Taxes, whether or not
reflected on the Tax Returns, which are due with respect to the Sellers and any
Affiliates have been timely paid by the Sellers and/or any such Affiliates,
whether or not such Taxes are disputed. For the purposes of this Section,
Affiliates shall mean any entity that files a consolidated tax return with any
of the Sellers.
(b) No claim for assessment or collection of Taxes
has been asserted against the Sellers or any Affiliates. None of the Sellers and
their Affiliates is a party to any pending audit, action, proceeding or
investigation by any Governmental Entity for the assessment or collection of
Taxes nor do Sellers or any Affiliates have knowledge of any threatened audit,
action, proceeding or investigation.
(c) None of Sellers and their Affiliates has waived
or extended any statutes of limitation for the assessment or collection of
Taxes. No claim has ever been made by a Governmental Entity in a jurisdiction
where Sellers or any Affiliates do not currently file Tax Returns that any of
Sellers or their Affiliates is or may be subject to taxation by that
jurisdiction. Nor are Sellers or their Affiliates aware that any such assertion
of tax jurisdiction is pending or threatened. No Liens, other than Permitted
Liens (whether filed or arising by
23
operation of law) have been imposed upon or asserted against any of the assets
of the Stations as a result of or in connection with any failure, or alleged
failure to pay any Tax.
(d) Sellers have withheld and paid all Taxes required to be withheld
in connection with any amounts paid or owing to any employee, creditor,
independent contractor or other third party.
(e) None of Sellers are foreign persons within the meaning of
Section 1445 of the Internal Revenue Code (the "Code").
(f) No payment described in this Agreement is subject to Section
280G of the Code.
(g) For purposes of this Agreement, the terms "Tax" and "Taxes"
shall mean all federal, state, local, or foreign income, payroll, Medicare,
withholding, unemployment insurance, social security, sales, use, service,
service use, leasing, leasing use, excise, franchise, gross receipts, value
added, alternative or add-on minimum, estimated, occupation, real and personal
property, stamp, duty, transfer, workers' compensation, severance, windfall
profits, environmental (including taxes under Section 59A of the Code), other
tax, charge, fee, levy or assessment of the same or of a similar nature,
including any interest, penalty, or addition thereto, whether disputed or not.
The term "Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes or any amendment thereto,
and including any schedule or attachment thereto.
6.1.13 Personnel. Attached as Schedule 6.1.13 is a complete and correct
---------
list as of July 1, 1999 of the names, positions, and location of all employees
or other station and broadcast personnel (whether employees or independent
contractors) of the Stations, which sets forth the
24
current salaries of all such employees and the other compensation arrangements
with all General Managers, Station Managers, General Sales Managers, Local Sales
Managers, National Sales Managers, Program Directors, Business Managers and
Traffic Managers (collectively, "Station Management") and all on-the-air
broadcast personnel of the Stations and indicates which of those employees,
Station Management or on-the-air broadcast personnel is a party to an employment
or consulting or similar contract with that is not terminable upon not more than
60 days notice without additional cost to the employer.
6.1.14 Contracts. The Contracts are the only material contractual
---------
agreements used to carry out the business and operations of the Stations as
currently conducted. Each Contract (as identified on Schedule 1.1.3) with
respect to the Stations is a valid and binding obligation of Sellers, as the
case may be, and is in full force and effect. Each of Sellers and each other
party to such Contract with respect to the Stations, has performed in all
material respects the obligations required to be performed by it and is not
(with or without lapse of time or the giving of notice, or both) in material
breach or default thereunder. Schedule 1.1.3 identifies, as to each Contract
with respect to the Stations listed thereon, whether the consent of the other
party thereto is required in order for such Contract to continue in full force
and effect upon the consummation of the transactions contemplated hereby.
6.1.15 ERISA Compliance. None of Sellers, nor any other trades or
----------------
businesses under common control within the meaning of Section 4001(b)(1) of
ERISA (collectively, the "ERISA Group") have contributed or been obligated to
contribute to any "multi employer plan" as such term is defined in Section 3(37)
or Section 4001 (a)(3) of ERISA except as disclosed on Schedule 6.1.15. Schedule
6.1.15 lists all "employee benefit plans" within the meaning of Section 3(3) of
ERISA and bonus, pension, profit sharing, deferred compensation, incentive
25
compensation, stock ownership, stock purchase, stock option, phantom stock,
retirement, vacation, severance, disability, death benefit, hospitalization,
insurance or other plan or arrangement or understanding providing benefits to
any present or former employee or contractor of the Stations maintained by
Sellers, or as to which Sellers, (with respect to such individuals) have any
liability or obligation (collectively, "Employee Benefit Plans").
6.1.16 Labor. None of Sellers have 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 their employees. Except as
disclosed on Schedule 6.1.16, each of the Sellers with respect to the Stations
(a) is and has been in substantial compliance with all applicable laws regarding
employment and employment practices, terms and conditions of employment, wages
and hours, and plant closing, occupational safety and health and workers'
compensation and is not engaged, nor has it engaged, in any unfair labor
practices, (b) has no, and has not had any unfair labor practice charges or
complaints pending or, to the Sellers' knowledge, threatened against any of them
before the National Labor Relations Board, (c) has no and has not had any
grievances pending or threatened against it and (d) has no, and has not had any
charges pending or threatened against it before the Equal Employment Opportunity
Commission or any state or local agency responsible for the prevention of
unlawful employment practices. There is no labor strike, slowdown, work stoppage
or lockout actually pending or threatened against or affecting the Stations. No
union organizational campaign or representation petition is currently pending
with respect to the employees working for the Stations.
6.1.17 Patents, Trademarks, Etc. Schedule 1.1.4 sets forth all call
-------------------------
letters, patents, patent applications, trademarks, trade names, Internet domain
names, service marks, trade secrets, applied for, issued, owned or used
copyrights and other proprietary Intellectual Property
26
used in the operation of the Stations (whether owned, leased or licensed).
Sellers have not received any notice of any claimed conflict, violation or
infringement of such Intellectual Property rights. Except as disclosed on
Schedule 6.1.17, none of such material Intellectual Property rights are being
infringed by any third party.
6.1.18 Absence of Certain Changes or Events. Except for Seller's
------------------------------------
employment of Xxxxxxxxxxx X. Xxxxxxxx or as otherwise contemplated or expressly
permitted by this Agreement, since December 31, 1998 there has not been (i) any
material damage, destruction or casualty loss of any kind with respect to the
Stations not covered by valid and collectible insurance; (ii) with respect to
the Stations the execution of any agreement with any Station management or
broadcast personnel (whether an employee or independent contractor) providing
for his/her employment, or any increase in compensation or severance or
termination of benefits payable or to become payable by Sellers, as the case may
be, to any officer, Station management, or broadcast personnel (whether an
employee or independent contractor), or any increase in benefits under any
collective bargaining agreement, except in any case in the ordinary course of
business consistent with prior practice and except as permitted by Section 8.1.1
(x); or (iii) any change by Sellers, in their financial or tax accounting
principles or methods.
6.1.19 Commission or Finder's Fees. Neither Sellers nor any entity
---------------------------
acting on behalf of Sellers have agreed to pay a commission, finder's fee or
similar payment in connection with this Agreement or any matter related hereto.
6.1.20 Investment Representations. Each Seller that will receive Stock
--------------------------
pursuant to this Agreement represents that it is acquiring such Stock solely for
its own account, not as nominee or agent for any other person, and with no
present intention of distributing or reselling
27
such Stock or any part thereof in any transaction that would be in violation of
the securities laws of the United States of America or any state thereof. Each
such Seller represents and warrants that it is an "accredited investor" within
the meaning of Rule 501(a) under the Securities Act of 1933, as amended (the
"Securities Act") and that it is not a "broker" or a "dealer" as those terms are
defined in the Securities Exchange Act of 1934, as amended (the "Exchange Act").
Each Seller that will be acquiring any shares of Stock pursuant to this
Agreement acknowledges that it has received all documents and information
relating to the Stock as it has requested and that it is able to bear the
economic risk of its investment in the Stock for an indefinite period of time.
In addition, each such Seller represents and warrants that it is aware that the
Stock has not been registered under the Securities Act or any securities or
"Blue Sky" laws of any state in reliance on applicable exemptions and that none
of the Stock may be offered, sold, transferred, pledged, hypothecated, or
otherwise assigned unless they are registered under the Securities Act or an
exemption from such registration is available, in each case in accordance with
any applicable securities or "Blue Sky" laws of any state. Each such Seller
consents to the imprinting on the certificates representing its portion of the
Stock of a legend to the effect of the foregoing.
6.1.21 [Intentionally Omitted.]
---------------------
6.1.22 Full Disclosure. No representation or warranty by Sellers
---------------
contained in this Agreement (including the Disclosure Schedules hereto) or in
any certificate furnished pursuant to this Agreement contains or will contain
any untrue statement of a material fact, or omits or will omit to state any
material fact necessary, in light of the circumstances under which it was or
will be made, in order to make the statements herein or therein not misleading.
6.1.23 Sellers' Financial Condition. No insolvency proceedings of any
----------------------------
character, including, without limitation, bankruptcy, receivership,
reorganization, composition or
28
arrangement with creditors, voluntary or involuntary, affecting Sellers or of
any of their respective assets or properties are pending, or to the best of
Sellers' knowledge, threatened, and Sellers have made no assignment for the
benefit of creditors, nor taken any action with a view to, or which would
constitute a basis for, the institution of any such insolvency proceedings.
Sellers shall use the proceeds received under this agreement to pay or to make
appropriate provision for the payment of any and all creditors of Sellers prior
to making any material distribution to its shareholders, except as required to
pay taxes.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
7.1 Organization and Standing. Buyer is a corporation duly
-------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware.
7.2 Authorization and Binding Obligation. Buyer has all necessary
------------------------------------
corporate power and authority to enter into and perform this Agreement and the
transactions contemplated hereby, and to own or lease the Stations Assets and to
carry on the business of the Stations upon the consummation of the transactions
contemplated by this Agreement. Buyer's execution, delivery and performance of
this Agreement and the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on behalf of Buyer and
constitutes the valid and binding obligation of Buyer, enforceable in accordance
with its terms.
7.3 Qualification. To Buyer's knowledge, there is no fact,
-------------
allegation, condition, or circumstance that could reasonably be expected to
prevent the prompt grant of the FCC Order. Buyer knows of no fact that would,
under the Communications Act of 1934, as amended, or the rules, regulations and
policies of the FCC, disqualify Buyer from becoming the licensee of the
Stations.
29
7.4 Absence of Conflicting Agreements or Required Consents. Except
------------------------------------------------------
as set forth in Schedule 7.4 hereof, the execution, delivery and performance of
this Agreement by Buyer: (a) do not violate or conflict with any of the terms,
conditions or provisions of the Certificate of Incorporation or By-Laws of
Buyer; (b) do not require the consent of any third party not affiliated with
Buyer; (c) will not violate any applicable law, judgment, order, injunction,
decree, rule, regulation or ruling of any governmental authority to which Buyer
is a party; and (d) will not, either alone or with the giving of notice or the
passage of time, violate the terms, conditions or provisions of, or constitute a
default under, any agreement, instrument, license or permit to which Buyer is
now subject.
7.5 Litigation: Compliance with Law. Except as disclosed in Schedule
-------------------------------
7.5, there is no litigation, administrative action, arbitration or other
proceeding, or petition, complaint or investigation before any court or
governmental body, pending against Buyer that would adversely affect Buyer's
ability to perform its obligations pursuant to this Agreement or the agreements
to be executed by Buyer in connection herewith. Buyer has committed no violation
of any applicable law, regulation or ordinance or any other requirement of any
governmental body or court which would have an adverse effect on Buyer or its
ability to perform its obligations pursuant to this Agreement or the agreements
to be executed in connection herewith,
7.6 Commission or Finder's Fees. Neither the Buyer nor any entity
---------------------------
acting on behalf of Buyer has agreed to pay a commission, finder's fee or
similar payment in connection with this Agreement or any matter related hereto,
7.7 Common Stock. The Stock, if it is shares of common stock, on the
------------
Closing Date will be duly authorized and validly issued, fully paid and
nonassessable and will not have been
30
issued in violation of any preemptive rights. The Stock, if it is a partnership
or LLC interest, on the Closing Date will be duly authorized and validly issued
in accordance with the partnership or operating agreement of that entity.
7.8 Full Disclosure. No representation or warranty by Buyer contained in
---------------
this Agreement (including the Disclosure Schedules hereto) or in any certificate
furnished pursuant to this Agreement contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
necessary, in light of the circumstances under which it was or will be made, in
order to make the statements herein or therein not misleading.
ARTICLE 8
COVENANTS OF SELLERS
--------------------
8.1 Conduct of Station Prior to the Closing-Date:
--------------------------------------------
8.1.1 Sellers covenant and agree with Buyer that between the date of
this Agreement and (except as otherwise noted below) the Closing Date, each of
the Sellers with respect to the Stations shall:
(i) use commercially reasonable efforts to maintain its
present business organization, keep available the services of its present
employees and independent contractors, preserve its relationships with its
customers and others having business relationships with it, and refrain from
materially and adversely changing any of its business practices and policies
(including but not limited to advertising (including substantially the same
amount of cash expenditure), marketing, pricing, purchasing, personnel, sales,
and budget practices and policies);
(ii) maintain its books of account and records in the usual
and ordinary manner and in accordance with generally accepted accounting
principles;
31
(iii) notify Buyer if the regular broadcast transmission of any
of the Stations from its main transmitting facilities at full authorized
effective radiated power is interrupted for a period of more than five
consecutive hours or for an aggregate of 10 or more hours in any continuous
three-day period;
(iv) operate in the usual and ordinary course of business in
accordance with past practice and conduct its business in all material respects
in compliance with the terms of the Stations Licenses and all applicable laws,
rules, and regulations, including, without limitation, the applicable rules and
regulations of the FCC through the Closing Date;
(v) use, repair, and, if necessary, replace any Stations'
studio and transmission assets in a reasonable manner consistent with historical
practice and maintain its assets in substantially their current condition,
ordinary wear and tear excepted;
(vi) maintain insurance in accordance with Section 6.1.7
through the Closing Date;
(vii) except with the Buyer's prior written consent, not incur
any debts, obligations, or liabilities (absolute, accrued, contingent, or
otherwise) that include obligations (monetary or otherwise) to be performed by
Buyer that exceeds Ten-thousand Dollars ($10,000) individually or Twenty-five
Thousand Dollars ($25,000) in the aggregate through the Closing Date;
(viii) not lease, mortgage, pledge, or subject to a lien, claim,
or encumbrance (other than Permitted Liens ) any of the Stations Assets or sell
or transfer any of the Stations Assets without replacing such Stations Assets
with an asset of substantially the same value and utility;
32
(ix) not without the prior consent of Buyer, which consent
shall not be unreasonably withheld or delayed, (x) modify or extend any
Contracts or (y) enter into any new Contract the payments under which exceeds
Ten-thousand Dollars ($10,000) individually or Twenty-Five Thousand Dollars
($25,000) in the aggregate through the Closing Date;
(x) not make or grant any general wage or salary increase or
generally materially modify the employees' terms and conditions of employment,
and with respect to any Station Management and on-air personnel, Sellers shall
not make or grant any wage or salary increase or modify any terms and conditions
of employment without the prior consent of Buyer; provided, however, that
Sellers shall be permitted to make bonus payments to any employees including
Station Management and on-air personnel;
(xi) not make any change in the accounting principles,
methods, or practices followed by it or depreciation or amortization policies or
rates;
(xii) not make any loans or make any dividends or distributions
other than of Excluded Assets;
(xiii) other than in the ordinary course of business, not cancel
or compromise any debt or claim, or waive or release any right, of material
value;
(xiv) not disclose to any person (other than Buyer and their
representatives) any confidential or proprietary information;
(xv) use their commercially reasonable efforts to maintain the
present format of the Stations and with programming consistent with past
practices;
(xvi) other than in the ordinary course of business, not
increase the number of regularly scheduled commercial units run during the day-
parts on the Stations (other
33
than changes in the number of commercial units run during any day-part as a
result of operating difficulties that require commercial units to be broadcast
at times other than as scheduled), or
(xvii) agree to do any of the foregoing.
8.2 Access to Information. Sellers shall give or cause the Stations to
---------------------
(i) give Buyer and Buyer's counsel, accountants, engineers and other
representatives, including environmental consultants, reasonable access during
normal business hours, to all of Sellers' properties, books, Contracts, Trade
Agreements, reports and records including financial information and tax returns
relating to the Stations, and to all real estate, buildings and equipment
relating to the Stations, in order that Buyer may have full opportunity to make
such investigation, including but not limited to, environmental assessments, as
it desires of the affairs of the Stations and (ii) furnish Buyer with
information, and copies of all documents and agreements including but not
limited to financial and operating data and other information concerning the
financial condition, results of operations and business of the Stations, that
Buyer may reasonably request. The rights of Buyer under this Section shall not
be exercised in such a manner as to interfere unreasonably with the business of
the Stations.
8.2.1 Interim Financial Statements. Sellers shall promptly deliver
----------------------------
to Buyer copies of any monthly, quarterly or annual financial statements
relating to the Stations' operations that may be prepared or received by them
during the period from the date hereof through the Closing Date. Such financial
statements shall fairly present the financial position and results of operations
of the Stations as at the dates and for the periods indicated, and if prepared
by or on behalf of Sellers, shall be prepared on a basis consistent and in
accordance with the basis upon which the Sellers Financial Statements were
prepared.
34
8.3 Other Consents. Sellers will use their best efforts to obtain all
--------------
consents, authorizations, or approvals required for the consummation of the
transactions contemplated by this Agreement.
8.4 No Inconsistent Action. Sellers shall not take any action which is
----------------------
inconsistent with their obligations under this Agreement.
8.5 Notification. Sellers shall promptly notify Buyer in writing of (i)
------------
the failure of Sellers or any employee or agent of Sellers to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with hereunder; (ii) the occurrence of any event that would entitle
Buyer to terminate this Agreement pursuant to Sections 18.1; or (iii) of any
overt threat or actual resignation or termination of any Station Management or
over-the-air personnel at any of the Stations prior to the Closing Date.
8.6 Updating of Schedules. From time to time prior to the Closing,
---------------------
Sellers will supplement or amend the Schedules delivered in connection herewith
with respect to any matter which exists or occurs after the date of this
Agreement and which, if existing or occurring at or prior to the date of this
Agreement, would have been required to be set forth or described in such
Schedules or which is necessary to correct any information in such Schedules
which has been rendered inaccurate thereby. The provisions of this Section are
informational only and Buyer shall not be bound to the terms of any changed
Schedules unless they are incorporated into this Agreement by a written
amendment signed by Buyer.
8.7 [INTENTIONALLY LEFT BLANK]
--------------------------
8.8 FCC Reports. Sellers shall file or cause to be filed on a current
-----------
basis until the Closing Date all material reports and documents required to be
filed with the FCC with respect to
35
the Stations Licenses. Copies of each such report and document filed between the
date hereof and the Closing Date shall be furnished to Buyer promptly after its
filing.
8.9 Updating of Information. Between the date of this Agreement and the
-----------------------
Closing Date, Sellers will deliver to Buyer, on a monthly basis within 30 days
of the end of each month, information relating to the operation of the Stations,
including weekly sales reports and such other financial information that may be
reasonably requested.
8.10 Indemnification. (a) From and after the Closing Date, Sellers agree
---------------
to indemnify and hold Buyer, its affiliates, and its assigns harmless from and
against all costs, losses and damages (including reasonable attorney fees)
incurred by Buyer or such affiliates or assings as a result of or arising out of
(i) the breach by Sellers of any of their representations and warranties
contained in this Agreement, (ii) the failure by Sellers to perform their
covenants set forth in this Agreement, (iii) the conduct of the operations of
each Station or the use or ownership of the Stations' Assets on or before the
Closing Date, including any and all liabilities arising under any of the
Stations' Licenses or Contracts which relate to events occurring prior to the
Closing Date, and (iv) any and all obligations or liabilities of Sellers under
any contract or agreement not expressly assumed by Buyer pursuant to the terms
hereof. Buyer shall make no settlement, compromise, admission or acknowledgment
that would give rise to liability on the part of the Seller without the prior
written consent of the Sellers.
(b) On the Closing Date, Buyer and Sellers will enter into the
Indemnification Escrow Agreement in the form of Exhibit 8.10 hereto in
accordance with which Buyer shall at Closing deposit an amount of the Purchase
Price equal to $500,000 (the "Holdback Amount") with the escrow agent identified
in the Indemnification Escrow Agreement (the "Indemnification Escrow Agent").
36
(c) The following provision shall govern the indemnification
rights and obligations hereunder:
(i) Buyer shall be entitled to payment out of the Holdback
Amount pursuant to the terms of this Section 8.10 and the Indemnification Escrow
Agreement for all amounts due to Buyer with respect to any claim by Buyer
against Sellers for liabilities of Sellers payable under this Section with
respect to breaches of representations and warranties of Sellers.
(ii) Sellers shall not be liable under this Section 8.10 with
respect to breaches of representations and warranties and covenants unless a
written claim for indemnification is given with respect thereto on or before the
first anniversary of the Closing Date.
(iii) Sellers' obligations under this Section 8.10 shall be
limited to the Holdback Amount.
(d) Sellers hereby covenant and agree that at any time
Sellers are or become obligated to indemnify Buyer under this Section 8.10,
Sellers will execute and deliver to the Indemnification Escrow Agent written
instructions to release to Buyer such portion of the Holdback Amount as is
necessary to indemnify Buyer for amounts due under this Section.
ARTICLE 9
ARTICLE 9 COVENANTS OF BUYER
----------------------------
9.1 Notification. Buyer shall promptly notify Sellers in writing of (i)
------------
any litigation, arbitration or administrative proceeding pending or, to its
knowledge, threatened against Buyer which challenges the transactions
contemplated hereby or (ii) the failure of Buyer, or any employee or agent of
Buyer to comply with or satisfy in any material respect any covenant, condition
or agreement to be complied with or satisfy in any material respect any
covenant,
37
condition or agreement to be complied with or satisfied by it hereunder and
(iii) the occurrence of any event that would entitle Sellers to terminate this
Agreement pursuant to Sections 18.1;
9.2 No Inconsistent Action. Buyer shall not take any action which is
----------------------
inconsistent with its obligations under this Agreement including the filing of
FCC applications violative of the FCC's Multiple Ownership Rules or containing
proposals violative of United States antitrust laws.
9.3 Post-Closing Access. Buyer, for a period of three (3) years following
-------------------
the Closing Date, shall make available during normal business hours for audit
and inspection by Sellers and their representatives, for any reasonable purpose
and upon reasonable notice, all records, files, documents and correspondence
transferred to it hereunder relating to the pre-closing period. All
information, records, files, documents and correspondence made available or
disclosed under this Section 9.3 shall be kept confidential.
9.4 Other Consents. Buyer will use its best efforts to obtain all
--------------
necessary consents, authorizations, or approvals, in each case, required for the
consummation of the transactions contemplated by this Agreement.
9.5 Conduct of Buyer Prior to the Closing Date. Buyer covenants and
------------------------------------------
agrees with the Sellers that between the date of this Agreement and the Closing
Date, the Buyer shall take or cause to be taken such action as is necessary to
fully and completely perform its obligations under this Agreement, including the
undertaking of such good faith negotiations with institutional investors as are
required to preserve and maintain the benefits that the Sellers will derive from
the Stock to be delivered hereunder.
38
9.6 Access to Information. Prior to the Closing, Buyer shall give or
---------------------
cause the Buyer to give Sellers and Sellers' counsel, accountants and other
representatives, reasonable access to the Buyer's records, including financial
information relating to the Buyer and its initial capitalization, as are
required for the Sellers to have a fair and reasonable opportunity to value the
Stock proposed to be paid to the Sellers under this Agreement. The rights of
the Sellers under this Section shall not be exercised in such a manner as to
interfere unreasonably with the business of the Buyer, or to cause undue delay.
9.7 Indemnification of Sellers. For a period ending one year after the
--------------------------
Closing Date, Buyer agrees to indemnify and hold Sellers and their respective
affiliates, and their respective successors and assigns harmless from and
against all costs, losses and damages (including reasonable attorneys' fees)
incurred by the Sellers or such affiliates or arising as a result of or arising
out of (i) the breach by the Buyer of any of its representations and warranties
contained in this Agreement; (ii) the failure by the Buyer to perform its
covenants set forth in this Agreement, (iii) the conduct of the operation of the
Stations on or after the Closing Date, including any and all liabilities arising
under the Stations Licenses or Contracts which are assumed by the Buyer which
relate to events occurring after the Closing Date, and (iv) any and all
obligations or liabilities which constitute the Assumed Liabilities. Nothing in
this Section 9.7 shall limit the duration of Buyer's obligations under any
assignment and assumption agreement delivered to Sellers at Closing.
ARTICLE 10
JOINT COVENANTS
---------------
Buyer and Sellers covenant and agree that, they shall act in accordance
with the following:
39
10.1 Confidentiality. Each of the Buyer and Sellers shall each keep
---------------
confidential all information obtained by it with respect to the other parties
hereto in connection with this Agreement and the negotiations preceding this
Agreement, and will use such information solely in connection with the
transactions contemplated by this Agreement, and if the transactions
contemplated hereby are not consummated for any reason, each shall return to
each other party hereto, without retaining a copy thereof, any schedules,
documents or other written information obtained from such other party in
connection with this Agreement and the transactions contemplated hereby except
to the extent required or useful in connection with any claim made with respect
to the transactions contemplated by this Agreement or the negotiation thereof.
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, not bound by a confidentiality agreement with the disclosing party, or
(ii) is or becomes publicly known through no fault of the receiving party or its
agents, or (iii) is required to be disclosed pursuant to an order or request of
a judicial or government authority (provided the non-disclosing parry is given
reasonable prior notice such that it may seek, at its expense, confidential
treatment of the information to be disclosed), (iv) is developed by the
receiving party independently of the disclosure by the disclosing party or (v)
is required to be disclosed under applicable law or rule, as determined by
counsel for the receiving party.
10.2 Cooperation. Buyer and Sellers shall cooperate fully with one another
-----------
in taking any actions, including 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.
40
10.3 Control of Stations. Prior to Closing, Buyer shall not, directly or
-------------------
indirectly, control or direct the operations of the Stations. As between Buyer
and Sellers, such operations, including complete control over Stations
programming, employees and policies, shall be the sole responsibility of
Sellers.
10.4 Bulk Sales Laws. Buyer hereby waives compliance by Sellers with the
---------------
provisions of the "bulk sales" or similar laws of any state. Sellers agree to
indemnify Buyer and hold it harmless from any and all loss, cost, damage and
expense (including but not limited to, reasonable attorney's fees) sustained by
Buyer as a result of any failure of Sellers to comply with any "bulk sales" or
similar laws.
10.5 Public Announcements. Neither Buyer nor Sellers shall issue any press
--------------------
release or make any disclosure with respect to the transaction contemplated by
this Agreement without the prior written approval of the other party, except as
may be required by applicable law or by obligations pursuant to any listing
agreement with any securities exchange or any stock exchange regulations.
10.6 [INTENTIONALLY LEFT BLANK]
10.7 Employee Matters. (a) Commencing with the execution of this
----------------
Agreement, Sellers shall make available each Owned Stations' personnel during
normal business hours for Buyer to interview prior to the Closing Date. Buyer
shall notify Sellers of the names of the employees to whom Buyer shall offer
employment (herein referred to as "Transferred Employees"), Sellers hereby
consent to Buyer making such offers of employment relating to the Stations
subject to the Closing between the parties hereunder. Sellers shall be
responsible for all obligations or liabilities to those employees not offered
employment by Buyer, and
41
Buyer shall have no obligations with respect to those employees (herein referred
to as Retained Employees).
(b) Prior to the Closing Date, as defined herein, Buyer shall
submit confirmation letters to Stations Management, on-air talent and other key
employees which it intends to offer employment to under Section 10.7(a), which
confirmation letters shall set forth the terms of employment currently in effect
between said employee and Sellers, including, but not limited to, matters
concerning salary, bonuses, vacation time, non-compete provisions (if any),
benefits, termination rights, loans (if any) and any other pertinent provisions
thereof. Receipt of the confirmation letters signed by the respective
management, on-air talent and other key employees is a condition precedent to
Buyer making any offers of continued employment.
10.8 Condition of Leased Real Estate. Buyer may, at its sole expense,
-------------------------------
conduct environmental studies, title examinations, and land surveys (the
"Studies") of the Real Estate. Buyer will use reasonable efforts to cause all
Phase I environmental surveys to be conducted within thirty (30) days of the
execution of this Agreement. With respect to environmental studies and land
surveys, Buyer shall restore the Real Estate to the condition that it was in
prior to any study by the Buyer. Buyer shall provide copies of all
environmental studies conducted hereunder to Sellers.
ARTICLE 11
CONDITIONS OF CLOSING BY BUYER
------------------------------
The obligations of Buyer hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of all of the following
conditions:
11.1 Representations, Warranties and Covenants. All representations and
-----------------------------------------
warranties of Sellers made in this Agreement or in any Exhibit, Schedule or
document delivered pursuant
42
hereto, shall be true and complete in all material respects as of the date
hereof and on and as of the Closing Date as if made on and as of that date,
except for changes expressly permitted or contemplated by the terms of this
Agreement and except those given as of a specified date.
11.2 Compliance with Agreement. All of the terms, covenants and conditions
-------------------------
to be complied with and performed by Sellers on or prior to the Closing Date
shall have been complied with or performed in all material respects.
11.3 Third Party Consents and Approvals, Estoppel Certificates. Sellers
---------------------------------------------------------
have obtained all third-party consents and approvals, if any, required for the
transfer or continuance, as the case may be, of the material Contracts on
Schedule 1.1.3 (and contracts that would have been on Schedule 1.1.3 had they
been in existence on the date of this Agreement) and, if requested by Buyer
within 30 days of the date of this Agreement, such third parties have provided
estoppel certificates, non-disturbance agreements, and/or written clarifications
of the rights of Buyer thereunder, all the form and substance reasonably
satisfactory to Buyer.
11.4 Closing Certificates. Buyer shall have received a certificate, dated
--------------------
as of the Closing Date, from each of the Sellers, executed by the President of
Sellers to the effect of Sections 11.1 and 11.2.
11.5 Governmental Consents.
(a) The FCC Consents shall have been issued by the FCC without
any conditions that would otherwise permit Buyer to terminate this Agreement
pursuant to Section 15.1(e), below, and each such FCC consent shall have become
a Final Order (as defined in Section 4.1).
43
(b) All other material authorizations, consents, approvals, and
clearances of federal, state, or local Governmental Entities required to permit
the consummation of the transactions contemplated by this Agreement shall have
been obtained.
11.6 Adverse Proceedings. No injunction, order, decree or judgment of any
-------------------
court, agency or other Governmental Entities shall have been rendered against
Sellers or Buyer which would render it unlawful, as of the Closing Date, to
effect the transactions contemplated by this Agreement in accordance with its
terms.
11.7 Closing Documents. Sellers shall have executed and delivered or
-----------------
caused to be delivered to Buyer, on the Closing Date (a), all special warranty
deeds, bills of sale, endorsements, assignments and other instruments of
conveyance and transfer consistent with the terms hereof and otherwise
reasonably satisfactory in form and substance to Buyer, effecting the sale,
transfer, assignment and conveyance of the Stations Assets to Buyer and (b) all
other documents, instruments, certificates and agreements required of Sellers
under the terms of this Agreement.
11.8 [INTENTIONALLY LEFT BLANK]
11.9 [INTENTIONALLY LEFT BLANK]
11.10 Material Adverse Change. No material adverse change in the
-----------------------
business, assets, prospects or condition of the Stations shall have occurred.
11.11 Shareholders Agreement. If requested by Buyer, Sellers shall have
----------------------
executed and delivered a shareholders, partnership, operating (or similar)
agreement (a "Shareholders Agreement"), in form reasonably satisfactory to the
majority of the equity holders of Buyer (or its assignee, as the case may be),
with terms and conditions customary to acquisition and
44
financing transactions, including, without limitation, a pledge of the Stock to
secure obligations of Buyer to lenders and institutional investors, share
transfer restrictions and procedures, and voting obligations such as election of
directors (or similar positions); provided, however, in no case shall Sellers be
required to obligate themselves to conditions more onerous than other similarly-
situated equity holders. The Shareholders Agreement shall also contain such
terms and conditions applicable to the Sellers and the Stock which give the
Sellers the right to participate in any subsequent securities registration or
other secondary offering on the same terms and conditions as available to the
other similarly situated equity holders.
11.12 Amendments to Shareholders Agreement. From time to time following
------------------------------------
the Closing, Sellers agree to promptly execute and deliver any amendments,
renewals, and modifications to the Shareholders Agreement and any new
Shareholders Agreement so long as a majority of the then equity holders of Buyer
(or its assignee, as the case may be) have agreed to execute; provided, however,
in no case shall Sellers be required to obligate themselves to conditions more
onerous than other similarly-situated equity holders.
11.13 Non-competition Agreement. At Closing, Sellers and Buyer shall
-------------------------
enter into a Noncompetition Agreement on the terms and conditions set out in
Schedule 11.13.
11.14 Rambaldo Employment Agreement. At Closing, Buyer shall offer
-----------------------------
employment to Xxxxxxx Xxxxxxxx on the terms and conditions set out in Schedule
11.14.
11.15 Opinion of Counsel. Buyer shall have received a written opinion of
------------------
Seller's counsel dated as of the Closing Date as to the matters set forth in
Exhibit 11.15 hereto in form and substance satisfactory to Buyer.
45
ARTICLE 12
CONDITIONS OF CLOSING BY SELLERS
--------------------------------
The obligations of Sellers hereunder are, at their option, subject to
satisfaction, at or prior to the Closing Date, of all of the following
conditions:
12.1 Representations, Warranties and Covenants. All representations and
-----------------------------------------
warranties of Buyer made in this Agreement or in any Exhibit, Schedule or
document delivered pursuant hereto, shall be true and complete in all material
respects as of the date hereof and on and as of the Closing Date as if made on
and as of that date, except for changes expressly permitted or contemplated by
the terms of this Agreement and except those given as of a specified date.
12.2 Compliance with Agreement. All the terms, covenants, and conditions
-------------------------
to be complied with and performed by Buyer on or prior to the Closing Date shall
have been complied with or performed in all material respects.
12.3 Certifications, etc. Sellers shall have received a certificate, dated
-------------------
as of the Closing Date, from the Buyer, executed by the President of Buyer to
the effect of Sections 12.1 and 12.2.
12.4 Governmental Approval.
---------------------
(a) The FCC Consents shall have been issued by the FCC and each shall
have become a Final Order (as defined in Section 4.1).
(b) All other material authorizations, consents, approvals, and
clearances of federal, state or local Governmental Entities required to permit
the consummation of the transactions contemplated by this Agreement shall have
been obtained.
46
12.5 Adverse Proceedings. No injunction, decree or judgment of any court,
-------------------
agency or other governmental entities shall have been rendered against Buyer or
Sellers which would render it unlawful, as of the Closing date, to effect the
transactions contemplated by this Agreement in accordance with its terms.
12.6 Closing Documents. Buyer shall have delivered or caused to be
-----------------
delivered to Sellers, on the Closing Date, an assumption agreement with respect
to Assumed Liabilities reasonably satisfactory in form and substance to Sellers.
12.7 Opinion of Counsel. Seller shall have received a written opinion of
------------------
Buyer's counsel dated as of the Closing Date as to the matters set forth in
Exhibit 12.7 hereto in form and substance satisfactory to Seller.
12.8 Matters Regarding the Stock. Unless the Sellers elect to receive
---------------------------
cash, Buyer shall have substantially complied with all covenants herein related
to the issuance and delivery of the Stock.
ARTICLE 13
TRANSFER TAXES: FEES AND EXPENSES
---------------------------------
13.1 Expenses. Except as set forth in Sections 13.2 and, 13.3 below, each
--------
party hereto shall be solely responsible for all costs and expense incurred by
it in connection with the negotiation, preparation and performance of and
compliance with the terms of this Agreement.
13.2 Transfer Taxes and Similar Charges. All costs of transferring the
----------------------------------
Stations Assets in accordance with this Agreement, including recordation,
transfer and documentary taxes and fees, and any excise, sales or use taxes,
shall be borne equally by Buyer and Sellers. Buyer and Sellers shall, in good
faith, attempt to calculate all such taxes and fees prior to Closing and settle
their respective obligations on or before the Closing Date.
47
13.3 Governmental Filing or Grant Fees. Any filing or grant fees imposed
---------------------------------
by any governmental authority the consent of which is required for the
consummation of the transactions contemplated hereby, including but not limited
to the FCC, shall be borne equally by Buyer and Sellers.
ARTICLE 14
ESCROW DEPOSIT, LIQUIDATED DAMAGES, SPECIFIC PERFORMANCE
--------------------------------------------------------
14.1 Escrow Deposit. Within ten (10) days after the execution and delivery
--------------
of this Agreement by both Parties, Buyer will deposit with Xxxx Xxxxxxx & Co.
("Xxxxxxx Money Escrow Agent"), an irrevocable letter of credit in the amount of
Five Hundred Thousand Dollars ($500,000,00) (the "Xxxxxxx Money Escrow
Deposit"). The Xxxxxxx Money Escrow Deposit shall be held and disbursed by
Xxxxxxx Money Escrow Agent pursuant to the terms of the Xxxxxxx Money Escrow
Agreement, appended hereto as Exhibit 14.1 (the "Xxxxxxx Money Escrow
Agreement"), which Xxxxxxx Money Escrow Agreement has been entered into by the
Sellers, Buyer and Xxxxxxx Money Escrow Agent. At closing, the Xxxxxxx Money
Escrow/-/ Deposit, shall be returned to Buyer. If the Closing does not occur
because Buyer materially breached this Agreement or defaulted in the performance
of any of its material obligations hereunder and Sellers have not breached this
Agreement or defaulted in the performance of any of their material obligations
hereunder, Buyer and Seller shall execute written instructions to the Xxxxxxx
Money Escrow Agent directing it to deliver the Xxxxxxx Money Escrow Deposit to
Sellers as liquidated damages, as provided in Section 14.2. If the Closing does
not occur because Sellers materially breached this Agreement or defaulted in the
performance of any of their material obligations hereunder and Buyer has not
breached this Agreement or defaulted in the performance of any of its material
obligations hereunder, Buyer and Sellers shall execute written instructions to
the Xxxxxxx Money Escrow Agent directing it to deliver the Xxxxxxx
48
Money Escrow Deposit to Buyer and Buyer may seek specific performance of this
Agreement, as provided in Section 14.3
14.2 Liquidated Damages. If this Agreement is terminated by Sellers
------------------
pursuant to Section 15.1(b)(ii) the Parties agree and acknowledge that Sellers
will suffer damages that are not practicable to ascertain. Accordingly, in such
event, Sellers shall be entitled to the sum of $500,000 as liquidated damages,
payable solely and exclusively through the Xxxxxxx Money Escrow Agreement. The
Parties agree that the foregoing liquidated damages are reasonable considering
all the circumstances existing as of the date hereof and constitute the Parties'
good faith estimate of the actual damages reasonably expected to result from the
termination of this Agreement pursuant to Section 15.1 (b)(ii). Sellers agree
that, to the fullest extent permitted by law, the right to receive the Xxxxxxx
Money Escrow Deposit shall be their sole and exclusive remedy if the Closing
does not occur with respect to any damages whatsoever that Sellers may suffer or
allege to suffer as a result of any claim or cause of action asserted by Sellers
relating to or arising from breaches of the representations, warranties or
covenants of Buyer contained in this Agreement and to be made or performed at or
prior to the Closing. Except for a termination pursuant to Section 15.1 (b)(ii)
(for which the sole recourse of Sellers shall be as provided in this Section
14.2) or pursuant to Section 15.1 (a) (for which no party shall have any
liability to the other), the termination of this Agreement shall not relieve the
Parties for any liability or obligation relating to their breaches of this
Agreement occurring prior to such termination.
14.3 Specific Performance. In addition to any other remedies which Buyer
--------------------
may have at law or in equity, Sellers hereby acknowledge that the Stations
Assets are unique, and that the harm to Buyer resulting from a breach by Sellers
of their obligations to sell the Stations Assets to Buyer cannot be adequately
compensated by damages. Accordingly, Sellers agree that Buyer
49
shall have the right to have this Agreement specifically performed by Sellers
and hereby agree not to assert any objections to the imposition of the remedy of
specific damages by any court of competent jurisdiction.
ARTICLE 15
TERMINATION RIGHTS
------------------
15.1 Termination. This Agreement may be terminated at any time prior to
-----------
Closing as follows:
(a) by the mutual consent of Buyer and Sellers;
(b) by written notice of (i) Buyer to Sellers if Sellers breach
in any material respect any of their representations or warranties or default in
any material respect in the observance or in the due and timely performance of
any of their covenants or agreements herein contained and such breach or default
shall not be cured within thirty (30) days of the date of notice of breach or
default served by Buyer or (ii) Sellers to the Buyer if Buyer breaches in any
material respect any of its representations or warranties or defaults in any
material respect in the observance or in the due and timely performance of any
of its covenants or agreements herein contained and such breach or default shall
not be cured within thirty (30) days of the notice of breach or default served
by Sellers; but such notice and cure period shall not apply in the case of
Buyer's or Sellers' failure to consummate the transactions in accordance with
the terms and times specified in Section 4.1 of this Agreement.
(c) by Buyer or Sellers by written notice to the other, if a
court of competent jurisdiction or other Governmental Entity shall have issued
an order, decree or ruling or taken any other action (which order, decree or
ruling the parties hereto shall use their best efforts to lift), in each case
permanently restraining, permanently enjoining or otherwise
50
prohibiting the transactions contemplated by this Agreement, and such order,
decree, ruling or other action shall have become final and non-appealable;
(d) by the party whose qualifications are not at issue, if, for any
reason, the FCC denies or dismisses any of the Applications and the time for
reconsideration or court review under the Communications Act with respect to
such denial or dismissal has expired and there is not pending with respect
thereto a timely filed petition for reconsideration or request for review;
(e) by written notice of Buyer to Sellers if (x) the FCC Consents
contain a condition that materially reduces the value of this transaction to
Buyer, (y) the cause of the condition is attributable to Sellers and (z) the
time for reconsideration or court review under the Communications Act with
respect to such conditions(s) has expired without the filing with respect
thereto of a timely petition for reconsideration or request for review;
(f) by written notice of Buyer to Sellers, or by Sellers to the Buyer,
if the Closing shall not have been consummated on or before May 1, 2000, subject
to extensions as provided in Sections 4.1 and 16.1;
(g) notwithstanding the foregoing, no party hereto may effect a
termination hereof if such party is in material default or breach of this
Agreement.
ARTICLE 16
16.1 Risk of Loss. The risk of loss or damage to the Stations Assets shall
------------
be upon Sellers at all times prior to the Closing Date. In the event of loss or
damage, Sellers shall promptly notify Buyer thereof and if the lost or damaged
Stations Assets are capable of being replaced or repaired for an aggregate
amount less than $25,000, then Sellers shall, at their sole
51
cost and expense, replace or repair such Stations Assets prior to the Closing
Date or deliver to Buyer at the Closing an amount in cash equal to the cost of
replacement or repair of such Station Assets, as mutually agreed in good faith
by Buyer and Sellers. Notwithstanding the foregoing, if the amount required to
replace or repair such Station Assets exceeds $25,000, Sellers may elect not to
replace or repair such Station Assets, provided, however, that in such event
Buyer, at its option, may elect to terminate this Agreement or agree to accept
from Seller, at the Closing, an amount in cash equal to the cost to replace or
repair such Station Assets, as mutually agreed in good faith by Buyer and
Sellers and waive any default or breach with respect to the loss or damage.
Buyer may terminate this Agreement, without any additional obligation to Buyer
or Sellers, if any of the Stations is off the air or operating at less than
ninety percent (90%) of its licensed power for three (3) or more consecutive
days or five (5) or more days in any thirty (30) day period. Either party may
extend the Closing Date by up to thirty (30) days in order to allow Seller to
complete any repair or replacement, required or authorized by this Section.
ARTICLE 17
MISCELLANEOUS PROVISIONS
------------------------
17.1 Survival of Representations and Warranties. The representations and
------------------------------------------
warranties contained in this Agreement, and in any schedule, instrument or
certificate delivered pursuant hereto, shall survive the Closing until one (1)
year after the Closing bate.
17.2 Certain Interpretive Matters and Definitions. Unless the context
--------------------------------------------
otherwise requires, (i) all references to Sections, Articles or Schedules are to
Sections, Articles or Schedules of or to this Agreement, (ii) each term defined
in this Agreement has the meaning assigned to it, (iii) each accounting term not
otherwise defined in this Agreement has the meaning assigned to it in accordance
with generally accepted accounting principles as in effect
52
on the date hereof, (iv) "or" is disinjunctive but not necessarily exclusive,
and (v) words in the singular include the plural and vice versa, and (vi) the
----------
term "Affiliate" has the meaning given it in Rule 12b-2 of Regulation 12B under
the Securities Exchange Act of 1934, as amended. All references to "$" or dollar
amounts will be to lawful currency of the United States of America.
17.3 Further Assurances. At and after the Closing, Sellers shall from time
------------------
to time, at the request of and without further cost or expense to Buyer, execute
and deliver such other instruments of assignment, conveyance and transfer and
take such other actions as may reasonably be requested in order to more
effectively consummate the transactions contemplated hereby, and Buyer shall
from time to time, at the request of and without further cost or expense to
Sellers, execute and deliver such other instruments and take such other actions
as may reasonably be requested in order to more effectively assume the Assumed
Liabilities.
17.4 Audited Financial Statements. At all times after the date hereof,
----------------------------
Sellers shall, and shall cause their representatives (including their
independent public accountants) to, cooperate in all reasonable respects with
the efforts of Buyer and its independent auditors to prepare such audited and
interim unaudited financial statements of the Stations as Buyer may require.
Sellers shall execute and deliver to Buyer's independent accountants such
customary management representation letters as they may require as a condition
to their ability to sign an unqualified report upon the audited financial
statements of the Stations for the periods for which such financial statements
may be required. Sellers shall cause their independent public accountants to
make available to Buyer and its representatives all of their work papers related
to the financial statements or Tax Returns of Sellers (to the extent they relate
to the Stations) and to provide Buyer's independent public accountants with full
access to those personnel who previously have been involved in the audit or
review of Sellers' financial statements or Tax Returns.
53
17.5 Assignment.
----------
(i) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto, whether by
operation of law or otherwise; provided, however, that without releasing Buyer
from any of its obligations or liabilities hereunder (a) nothing in this
Agreement shall limit Buyer's ability to sell or transfer this Agreement, or any
or all of its assets (whether by sale of stock or assets, or by merger,
consolidation or otherwise) without the consent of Sellers, (b) nothing in this
Agreement shall limit Buyer's ability to assign the right to acquire the Station
Licenses at the Closing to any subsidiary of Buyer without the consent of
Sellers, and (c) nothing in this Agreement shall limit Buyer's ability to make a
collateral assignment of its rights under this Agreement to any institutional
lender that provides funds to Buyer without the consent of Sellers. Sellers
shall execute an acknowledgment of such assignment(s) and collateral assignments
in such forms as Buyer or its institutional lenders may from time to time
reasonably request; provided, however, that unless written notice is given to
Sellers that any such collateral assignment has been foreclosed upon, Sellers
shall be entitled to deal exclusively with Buyer as to any matters arising under
this Agreement or any of the other agreements delivered pursuant hereto. In the
event of such an assignment, the provisions of this Agreement shall inure to the
benefit of and be binding on Buyer's successors and assigns.
(ii) If any assignment under Subsection (i), above, occurs after
the ten day notice period provided in Section 3.1.3 (ii), then Sellers shall be
afforded a reasonable opportunity to elect whether to accept cash in lieu of
Stock at Closing.
17.6 Amendments. No amendment, waiver of compliance with any provision or
----------
condition hereof or consent pursuant to this Agreement shall be effective unless
evidenced by an
54
instrument in writing signed by the party against whom enforcement of any
waiver, amendment, change, extension or discharge is sought.
17.7 Headings. The headings set forth in this Agreement are for
--------
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
17.8 Governing Law. The construction and performance of this Agreement
-------------
shall be governed by the laws of the State of Delaware without giving effect to
the choice of law provisions thereof.
17.9 Notices. Any notice, demand or request required or permitted to be
-------
given under the provisions of this Agreement shall be in writing and shall be
deemed to have been duly delivered and received on the date of personal
delivery; on the third day after deposit in the U.S. mail if mailed by
registered or certified mail, postage prepaid and return receipt requested; on
the day after delivery to a nationally recognized overnight courier service if
sent by an overnight delivery service for next morning delivery and shall be
addressed to the following addresses:
(a) In the case of Sellers, to:
Xx. Xxxxxxx Xxxxxxxx
Rambaldo Communications, Inc.
c/o 0000 Xxxxx Xxxxx Xxxxx, Xxx. 000
Xxxx, Xxxxxxxxxxxx 00000
55
With a copy to:
Xxxxx X. Xxxxxx, Esq.
MacDonald, Illig, Xxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx, Xxxxxxxxxxxx 00000
(b) In the case of Buyer:
Xx. Xxxxxx Xxxxxx
P.O. Box 10994
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxx 00000
And:
Xx. Xxxx Xxxxxx
c/o Legacy Management Group
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
With a copy to:
Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx & Associates, P.A.
0 X.X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
17.10 Barter and Trade. Buyer will not assume trade, barter or similar
----------------
arrangements for goods or services that are not used in or useful to the
Stations' business or operations. Buyer will not assume trade, barter or
similar arrangements requiring advertising time, in the aggregate,
56
of more than $200,000, nor will it assume such agreements to the extent that
trade payables exceed trade receivables by more than $25,000.
17.11 Schedules. The schedules and exhibits attached to this Agreement
---------
and the other documents delivered pursuant hereto are hereby made a part of this
Agreement as if set forth in full herein.
17.12 Entire Agreement. This Agreement contains the entire agreement
----------------
among the parties hereto with respect to its subject matter and supersedes all
negotiations, prior discussions, agreements, letters of intent, and
understandings, written or oral, relating to the subject matter of this
Agreement.
17.13 Severability. If any provision of this Agreement is held to be
------------
unenforceable, invalid, or void to any extent for any reason, that provision
shall remain in force and effect to the maximum extent allowable, and the
enforceability and validity of the remaining provisions of this Agreement shall
not be affected thereby.
17.14 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which will be deemed an original, but all of which
together shall constitute but one and the same instrument.
17.15 Collection of Accounts Receivable. (a) The accounts receivable of
---------------------------------
the Stations generated prior to the Closing Date (the "Pre-Closing Receivables")
shall be and remain the property of Sellers. Within 10 business days after the
Closing Date, Sellers shall furnish Buyer with a list (certified by the Chief
Financial Officer of Sellers to be a true and complete list) of all accounts
receivable of Sellers which remain outstanding as of the Closing Date. Buyer
agrees that if, within one (1) year after the Closing Date , it shall receive
payment in respect to any Pre-
57
Closing Receivable, Buyer shall remit to Sellers, one (1) year after the Closing
Date, all amounts received by Buyer, which are in payment for advertising
broadcast by the Stations prior to the Closing Date.
(b) During the period commencing on the Closing Date and ending one
(1) year thereafter (the "Collection Period"), Buyer shall use reasonable
efforts, consistent with Sellers' current billing and collection practices and
in the ordinary course of the business, to collect outstanding Pre-Closing
Receivables; provided however, that, notwithstanding the foregoing, Buyer shall
------------------
be under no obligation to commence litigation, employ counsel or engage the
services of a collection agency to effect collection. Buyer shall not make any
compromise, adjustment, concession or settlement of any Pre-Closing Receivable
without Sellers' express written consent and Buyer shall be under no obligation
to compromise, adjust, concede or settle any accounts receivable generated after
the Closing Date or otherwise grant any credit or allowance to effect collection
of a Pre-Closing Receivable.
(c) Within fifteen days after the end of each month during the
collection Period, Buyer shall give Sellers a report of all collections of Pre
Closing Receivables during the preceding month.
(d) For a period of three hundred and sixty (360) days after Closing,
Sellers agree to remit to Buyer within five (5) days, any amounts received by
Sellers which are in payment for advertising broadcast by the Stations.
17.16 Indemnification Basket. No party shall be liable to the other under
----------------------
any indemnification provision contained herein unless the aggregate amount of
claims for which indemnification is sought exceeds Fifty Thousand Dollars
($50,000) and then only to the extent of claims above the first Fifty Thousand
Dollars.
58
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed and delivered as o(Pounds) the date first above written.
RAMBALDO COMMUNICATIONS, INC.
By: /s/
------------------------------------
Xxxxxxx X. Xxxxxxxx
President
RAMBALDO AM COMMUNICATIONS, INC.
By: /s/
------------------------------------
Xxxxxxx X. Xxxxxxxx
President
RAMBALDO AM BROADCASTING COMPANY
By: /s/
------------------------------------
Xxxxxxx X. Xxxxxxxx
President
NextMedia Group, LLC
By: /s/
------------------------------------
Xxxx X. Xxxxxx
Manager
