Exhibit 2.22
ASSET PURCHASE AGREEMENT
This Agreement ("Agreement") is entered into as of December 15, 1997, by
and between Cumulus Broadcasting, Inc., a Nevada corporation ("Broadcasting"),
Cumulus Licensing Corporation, a Nevada corporation ("Licensing), Clearly
Superior Radio, L.L.C. ("Clearly"), an Illinois limited liability company; 3-D
Communications Corporation, a Delaware corporation. ("3-D"); and Xxxxxx X.
Xxxxxxxxxx ("Doelitzsch"), an individual citizen of Illinois. Clearly, 3-D and
Doelitzsch are referred to collectively herein as the "Sellers." Broadcasting
and Licensing are referred to collectively herein as the "Buyers." The Buyers
and the Sellers are referred to individually as the "Party" or collectively as
the "Parties." Capitalized terms used in this Agreement are defined in Section 8
hereof.
Subject to the terms and conditions of this Agreement, the Buyers hereby
agree to purchase substantially all of the assets (and assume certain of the
liabilities) of the Sellers that are used or useful in the operation of radio
stations WDDD-FM (Marion, Illinois), WDDD-AM (Xxxxxxxx City, Illinois), WFRX-AM
(West Frankfort, Illinois), WTAO-FM (Murphysboro, Illinois), WVZA-FM (Herrin,
Illinois), WQUL-FM (West Frankfort, Illinois), and Sellers' application for a
station on AM-1690 (Xxxxxxxx City, Illinois) (the"Stations") in return for cash.
Now, therefore, in consideration of the above premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows:
1. Basic Transaction.
a. Purchase and Sale of Assets. On and subject to the terms and
conditions of this Agreement, the Sellers agree to sell, transfer, convey and
deliver to (i) Licensing, and Licensing agrees to purchase from the Sellers, all
of the FCC Licenses listed in Section 2(1) of the disclosure schedule
("Disclosure Schedule"); and (ii) Broadcasting, and Broadcasting agrees to
purchase from the Sellers, all of the Acquired Assets other than the FCC
Licenses. Both such sales shall take place at the Closing for the consideration
specified below in this Section 1.
b. Assumption of Liabilities. On and subject to the terms and
conditions of this Agreement, Broadcasting agrees to assume and become
responsible for all of the Assumed Liabilities at the Closing. The Buyers will
not assume or have any responsibility, however, with respect to any other
obligation or Liability of the Sellers not included within the definition of
Assumed Liabilities and assumed by Broadcasting, and the Sellers agree to pay
and discharge all Liabilities and obligations of the Sellers other than the
Assumed Liabilities.
c. Purchase Price. The Buyers agree to pay to the Sellers, as
consideration for the Acquired Assets, the amounts payable below (the "Purchase
Price"). The Purchase Price shall be payable as follows:
i. on the date of this Agreement, the Buyers will deliver to
the Escrow Agent an irrevocable letter of credit issued by NationsBank of
Texas, N.A. for the benefit of the Escrow Agent in substantially similar
form as the letter of credit attached hereto as Exhibit A in the amount of
Six Hundred Twenty-Five Thousand Dollars ($625,000.00) (the "Xxxxxxx Money
Deposit"); and
ii. on the Closing Date, the Buyers shall pay to the Sellers
the amount of (a) Twelve Million Five Hundred Thousand Dollars
($12,500,000.00), plus (b) the Building Amount ("Building Amount") as
defined below, with adjustments as specifically provided in this
Agreement.
The Xxxxxxx Money Deposit referenced in this Section 1(c) shall be held in
escrow by the Escrow Agent pursuant to an escrow agreement in the form attached
hereto as Exhibit B (the "Xxxxxxx Money Escrow Agreement"). If this Agreement is
terminated without Closing of the transaction contemplated herein, the Xxxxxxx
Money Deposit shall be paid to the Seller or returned to the Buyers as provided
in the Xxxxxxx Money Escrow Agreement.
d. Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of the Stations in
Marion-Carbondale, Illinois, commencing at 9:00 a.m. local time no less than ten
(10) days after the FCC approval of the Assignment Application becomes a Final
Order, by which date all other conditions to the obligations of the Parties to
consummate the transactions contemplated hereby will have been satisfied, or
such other date as the Parties may mutually determine (the "Closing Date").
e. Deliveries at the Closing. At the Closing, (i) the Sellers will
deliver to the Buyers the various certificates, instruments, and documents
referred to in Section 5(a) below; (ii) the Buyers will deliver to the Sellers
the various certificates, instruments, and documents referred to in Section 5(b)
below; (iii) the Sellers will execute, acknowledge (if appropriate), and deliver
to the Buyers (A) assignments (including Lease and other Assumed Contract
assignments and Intellectual Property transfer documents), bills of sale and
warranty deeds in form acceptable to the Buyers, (B) such affidavits, transfer
tax returns, memorandums of lease, and other additional documents as may be
required by the terms of the title insurance commitments described in Section
4(o) hereof, as necessary to furnish title insurance as required by such section
or as may be necessary to convey title to the Real Estate to the Buyers in the
condition required herein or provide public notice of existence of the Leases,
and (C) such other instruments of sale, transfer, conveyance, and assignment as
the Buyers and their counsel reasonably may request; (iv) the Buyers will
execute, acknowledge (if appropriate), and deliver to the Sellers (A) an
assumption in the form attached hereto as Exhibit C and (B) such other
instruments of assumption as the Sellers and its counsel reasonably may request;
and (v) the Buyers will deliver to the Sellers the consideration specified in
Section 1(c) above.
f. Postclosing Agreement. On the Closing Date, the Sellers shall
execute, and shall cause each of its shareholders to execute, a Postclosing
Agreement with the Buyers including
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covenants not to compete with the Buyers in the markets served by the Sellers
and agreements to indemnify the Buyers in the form of Exhibit D attached hereto.
g. Time Brokerage Agreement. Concurrent with the execution of this
Agreement, the Seller and Buyer shall execute the Time Brokerage Agreement (the
"Time Brokerage Agreement") which includes the terms and conditions pursuant to
which the Broadcasting will purchase the airtime on the Sellers. The accounts
receivable of the Sellers in existence as of the date of this Agreement (and the
Effective Date of the Time Brokerage Agreement) shall be collected pursuant to
the terms and conditions of the Time Brokerage Agreement.
2. Representations and Warranties of the Seller.
The Sellers represent and warrant to the Buyers that the statements
contained in this Section 2 are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date, except as set
forth in the Disclosure Schedule.
a. Organization and Authority of the Sellers. Clearly and 3-D are
corporations duly organized, validly existing, and in good standing under the
laws of the jurisdictions of their incorporation. Clearly and 3-D have the power
and authority to own or lease their properties and to carry on all business
activities now conducted by them. The sole members of Clearly are 3-D and
Doelitzsch, and the sole shareholder of 3-D is Doelitzsch. Doelitzsch has title
to the assets to be conveyed by him under this Agreement.
b. Authorization of Transaction. The Sellers have full power and
authority (including full corporate power and authority) to execute and deliver
this Agreement and all agreements and instruments to be executed and delivered
by Sellers pursuant to this Agreement (collectively, the "Ancillary Agreements")
and to perform their obligations hereunder and thereunder. Without limiting the
generality of the foregoing, the Boards of Directors of 3-D and Clearly have
duly authorized the execution, delivery, and performance of this Agreement and
the Ancillary Agreements by the Sellers. This Agreement and the Ancillary
Agreements constitute the valid and legally binding obligation of the Sellers,
enforceable in accordance with their respective terms and conditions.
c. Noncontravention. Neither the execution and the delivery of this
Agreement or the Ancillary Agreements, nor the consummation of the transactions
contemplated hereby and thereby (including the assignments and assumptions
referred to in Section 1(e) above), will (i) violate any statute, regulation,
rule, judgment, order, decree, stipulation, injunction, charge, or other
restriction of any government, governmental agency, or court to which the
Sellers are subject or any provision of the charter or bylaws of the Sellers; or
(ii) conflict with, result in a breach of, constitute a default under, result in
the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice or third party consent under any
contract, lease, sublease, license, sublicense, franchise, permit, indenture,
agreement or mortgage for borrowed money, instrument of indebtedness, Security
Interest, or other agreement, arrangement to which the Sellers are a party or by
which it is bound or to which any of its assets is subject (or result in the
imposition of any Security Interest upon any of its assets). Other than with
respect to the Assignment
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Application described in Section 4(b) the Sellers do not need to give any notice
to, make any filing with, or obtain any Licenses, consent, or approval of any
court or government or governmental agency in order for the Parties to enter
into this agreement or the Ancillary Agreements or to consummate the
transactions contemplated by this Agreement or the Ancillary Agreements
(including the assignments and assumptions referred to in Section 1(e) above).
d. Title to Acquired Assets. Other than the Security Interests set
forth on Section 2(d) of the Disclosure Schedule (which shall be released at or
before the Closing) the Sellers have good and marketable title to all of the
Acquired Assets, free and clear of any Security Interest or restriction on
transfer.
e. Financial Statements. Included in Section 2(e) of the Disclosure
Schedule are the following financial statements (collectively the "Financial
Statements"): (i) unaudited balance sheets and statements of income, and cash
flow as of and for the fiscal years ended December 31, 1994, December 31, 1995,
and December 31, 1996 for the Sellers; and (ii) unaudited balance sheets and
statements of income, as of and for each month during 1996 and each month to
date in 1997 for the Seller. The Financial Statements have been prepared in
conformity with the Sellers' normal accounting policies, practices and
procedures applied on a consistent basis, throughout the periods covered
thereby, are correct and complete, fairly present the financial condition of the
Sellers and the results of operation of Sellers at the dates and for the periods
indicated, and are consistent with the books and records of the Sellers (which
books and records are correct and complete). The Financial Statements accurately
state the revenues of the Sellers for the period indicated therein and include
an accurate breakout of cash and trade revenues.
f. Events Subsequent to October 1, 1997. Since October 1, 1997,
except as set forth in Section 2(f) of the Disclosure Schedule, there has not
been any material adverse change in the assets, Liabilities, business, financial
condition, operations, results of operations, or future prospects of the Seller
with respect to the operation of the Stations. Without limiting the generality
of the foregoing and with respect to the operation of the Sellers since October
1, 1997:
i. other than this Agreement, the Sellers have not entered
into any agreement, contract, lease, sublease, license, or sublicense (or
series of related agreements, contracts, leases, subleases, licenses, and
sublicenses) outside the Ordinary Course of Business;
ii. the Sellers have not delayed or postponed (beyond their
normal practice in the Ordinary Course of Business) the payment of
accounts payable and other Liabilities;
iii. the Sellers have not altered their credit and collection
policies or their accounting policies;
iv. the Sellers have not entered into or terminated any
employment arrangement, employment contract, consulting contract or
severance agreement or collective
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bargaining agreement, written or oral, or modified the terms of any
existing such contract or agreement;
v. there have been no changes and, to Sellers' knowledge, any
threatened changes in employment terms for any of its directors, officers,
and employees;
vi. there has not been any other occurrence, event, incident,
action, failure to act, or transaction outside the Ordinary Course of
Business involving the Sellers;
vii. the Sellers have not materially altered the programming,
format or call letters of the Stations, or their promotional and marketing
activities;
viii. the Sellers have not applied to the FCC for any
modification of the FCC Licenses or failed to take any action necessary to
preserve the FCC Licenses and has operated the Stations in compliance
therewith and with all FCC rules and regulations;
ix. the Sellers have not terminated or received notice of
termination for any syndicated programming; and
x. the Sellers have not committed to any of the foregoing.
g. Tax Matters. The Sellers have timely and properly filed all Tax
Returns that it was required to file with respect to the Sellers' operations.
All such Tax Returns were correct and complete and properly reflect the tax
liability of the Sellers. No Tax deficiencies have been proposed or assessed
against the Sellers. All Taxes owed by the Sellers with respect to its
operations (whether or not shown on any Tax Return) have been paid. The Sellers
have withheld and paid all Taxes required to have been withheld and paid in
connection with amounts paid or owing to any employee, creditor, independent
contractor, or other third party. No claim has ever been made by any authority
in any jurisdiction where the Sellers do not file Tax Returns that it is or may
be subject to taxation by that jurisdiction.
h. Tangible Assets. Section 2(h) of the Disclosure Schedule sets
forth a listing of all transmitter and station equipment, vehicles and other
tangible personal property used in conducting the operation and business of the
Stations. The Sellers own or lease all tangible assets necessary for the conduct
of the operation and business of the Stations as presently conducted and as
presently proposed to be conducted and all leased assets are specifically
identified as such in Section 2(h) of the Disclosure Schedule.
i. Real Property. Section 2(i) of the Disclosure Schedule lists and
describes briefly all Owned Real Estate and real property leased to the Sellers
(including, without limitation, complete legal descriptions for all of the Real
Estate). The Sellers have delivered to the Buyers correct and complete copies of
the Leases. With respect to the Real Estate:
i. the Sellers have good and marketable title to all of the
Owned Real Estate free and clear of all liens, charges, mortgages,
security interests, easements,
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restrictions or other encumbrances of any nature whatsoever except real
estate taxes for the year of Closing and municipal and zoning ordinances
and recorded utility easements which do not impair the current use,
occupancy or value or the marketability of title of the property and which
are disclosed in Section 2(i) of the Disclosure Schedule (collectively,
the "Permitted Real Estate Encumbrances");
ii. the Leases are and, following the Closing will continue to
be, legal, valid, binding, enforceable, and in full force and effect;
iii. no party to any Lease is in breach or default (or has
repudiated any provision thereof), and no event has occurred which, with
notice or lapse of time, would constitute a breach or default thereunder
or permit termination, modification, or acceleration thereunder;
iv. there are no disputes, oral agreements, or forbearance
programs in effect as to any Lease;
v. none of the Owned Real Estate and to the Sellers'
Knowledge, none of the properties subject to the Leases is subject to any
lease (other than Leases), option to purchase or rights of first refusal;
vi. except for Permitted Real Estate Encumbrances, there are
no (i) actual or, to the Sellers' Knowledge, proposed special assessments
with respect to any of the Real Estate; (ii) pending or, to the Sellers'
Knowledge, threatened condemnation proceedings with respect to any of the
Real Estate; (iii) structural or mechanical defects in any of the
buildings or improvements located on the Real Estate; (iv) any pending or,
to the Sellers' Knowledge, threatened changed in any zoning laws or
ordinances which may materially adversely affect any of the Real Estate or
Sellers' use thereof;
vii. the Sellers have not assigned, transferred, conveyed,
mortgaged, deeded in trust, or encumbered any interest in the Leases or
its rights thereunder;
viii. to the Sellers' Knowledge, all facilities on the Real
Estate have received all approvals of governmental authorities (including
licenses, permits and zoning approvals) required in connection with the
operation thereof and have been operated and maintained in accordance with
applicable laws, rules, and regulations; and
ix. to the Sellers' Knowledge, the owner of each leased
facility has good and marketable title to the underlying parcel of real
property, free and clear of any Security Interest, easement, covenant, or
other restriction, except for Permitted Real Estate Encumbrances and
Sellers' leasehold interest in each Lease has priority over any other
interest except for the fee interest therein and Permitted Real Estate
Encumbrances.
j. Contracts. Section 2(j) of the Disclosure Schedule lists any
written arrangement (or group of related written arrangements) either involving
more than $5,000 or not
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entered into in the Ordinary Course of Business. The Sellers have delivered to
the Buyers a correct and complete copy of each written arrangement listed in
Section 2(j) of the Disclosure Schedule (as amended to date). With respect to
each written arrangement so listed which constitutes an Assumed Contract: (A)
the written arrangement is legal, valid, binding, enforceable, and in full force
and effect; (B) the written arrangement will continue to be legal, valid,
binding, and enforceable and in full force and effect on identical terms
following the Closing (if the arrangement has not expired according to its
terms); (C) no party is in breach or default, and no event has occurred which
with notice or lapse of time would constitute a breach or default or permit
termination, modification, or acceleration, under the written arrangement; and
(D) no party has repudiated any provision of the written arrangement. The
Sellers are not a party to any verbal contract, agreement, or other arrangement
which, if reduced to written form, would be required to be listed in Section
2(j) of the Disclosure Schedule under the terms of this Section 2(j). Except for
the Assumed Contracts, the Buyers shall not have any Liability or obligations
for or in respect of any of the contracts set forth in Section 2(j) of the
Disclosure Schedule or any other contracts or agreements of the Sellers.
k. Commission Licenses and Compliance with Commission Requirements.
i. All licenses, permits, authorizations, franchises,
certificates of compliance, and consents of governmental bodies,
including, without limitation, the FCC Licenses, used or useful in the
operation of the Stations as they are now being operated are (A) in full
force and effect, (B) unimpaired by any acts or omissions of the Sellers
or the Sellers' employees or agents, (C) free and clear of any
restrictions which might limit the full operation of the Stations, and (D)
detailed in Section 2(k) of the Disclosure Schedule. With respect to the
licenses, permits, authorizations, franchises, certificates of compliance
and consents referenced in the preceding sentence, Section 2(k) of the
Disclosure Schedule also sets forth, without limitation, the date of the
last renewal, the expiration date thereof, and any conditions or
contingencies related thereto. Except as set forth in Section 2(k) of the
Disclosure Schedule, no condition exists or event has occurred that
permits, or after notice or lapse of time, or both, would permit, the
revocation or termination of any such license, permit, consent, franchise,
or authorization (other than pursuant to their express expiration date) or
the imposition of any material restriction or limitation upon the
operation of the Stations as now conducted. Except as set forth in Section
2(k) of the Disclosure Schedule, the Sellers are not aware of any reason
why the FCC licenses might not be renewed in the ordinary course or
revoked.
ii. The Stations are in compliance with the FCC's policy on
exposure to radio frequency radiation. No renewal of any FCC License would
constitute a major environmental action under the FCC's rules or policies.
Access to the Stations' transmission facilities is restricted in
accordance with the policies of the FCC.
iii. Except as set forth in Section 2(k) of the Disclosure
Schedule, to the Sellers' Knowledge, the Sellers are not the subject of
any FCC or other governmental investigation or any notice of violation or
order, or any material complaint, objection, petition to deny, or
opposition issued by or filed with the FCC or any other governmental
authority in connection with the operation of or authorization for the
Stations, and there are
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no proceedings (other than rule making proceedings of general
applicability) before the FCC or any other governmental authority that
could adversely affect any of the FCC Licenses or the authorizations
listed in Section 2(k) of the Disclosure Schedule.
iv. The Sellers have filed with the FCC and all other
governmental authorities having jurisdiction over the Stations all
material reports, applications, documents, instruments, and other
information required to be filed, and will continue to make such filings
through the Closing Date.
v. The Sellers are not aware of any information concerning the
Stations that could cause the FCC or any other regulatory authority not to
issue to the Buyers all regulatory certificates and approvals necessary
for the consummation of the transactions contemplated hereunder or the
Buyer's operation and/or ownership of the Stations. Except as described in
Section 2(k) of the Disclosure Schedule, Sellers are not aware of any
pending FCC applications which, if approved, would allow for the operation
of a new radio station with a signal reaching the signal area of the
Stations and, in addition, Sellers are not aware of any plans or proposals
by any existing radio Stations with a signal reaching the signal area of
the Stations to alter or change their format to a format similar to that
of the Stations.
l. Intellectual Property. The Sellers own or has the right to use
pursuant to license, sublicense, agreement or permission all Intellectual
Property necessary for the operation of the businesses of the Sellers as
presently conducted and as presently proposed to be conducted. Each item of
Intellectual Property owned or used by the Sellers immediately prior to the
Closing hereunder is set forth on Section 2(l) of the Disclosure Schedule and
each item listed will be owned or available for use the by the Buyers on
identical terms and conditions immediately subsequent to the Closing hereunder.
The Sellers have not interfered with, infringed upon, misappropriated, or
otherwise come into conflict with any Intellectual Property rights of third
parties, and the Sellers have never received any charge, complaint, or notice
alleging any such interference, infringement, misappropriation, or violation. To
the Knowledge of the Sellers, no third party has interfered with, infringed
upon, misappropriated, or otherwise come into conflict with any Intellectual
Property rights of the Sellers.
m. Insurance. Section 2(m) of the Disclosure Schedule sets forth a
complete and accurate description of all Sellers' insurance coverage. With
respect to each such insurance policy: (A) the policy is legal, valid, binding,
and enforceable and in full force and effect; (B) the policy will continue to be
legal, valid, binding, and enforceable and in full force and effect on identical
terms through the Closing Date.
n. Litigation. Section 2(n) of the Disclosure Schedule sets forth
each instance in which the Sellers: (i) are subject to any unsatisfied judgment,
order, decree, stipulation, injunction, or charge; or (ii) is a party or, to the
Knowledge of the Sellers, is threatened to be made a party to any charge,
complaint, action, suit, proceeding, hearing, or investigation of or in any
court or quasijudicial or administrative agency of any federal, state, local, or
foreign jurisdiction or before any arbitrator. None of the charges, complaints,
actions, suits, proceedings, hearings, and investigations set forth in Section
2(n) of the Disclosure Schedule could result in any adverse change
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in the assets, Liabilities, business, financial condition, operations, results
of operations, or future prospects of the Sellers or the Stations taken as a
whole. The Sellers have no Knowledge of any Basis for any such charge,
complaint, action, suit, proceeding, hearing, or investigation against the
Sellers.
o. Employees. Section 2(o) of the Disclosure Schedule sets forth a
listing of the names, positions, job descriptions, salary or wage rates and all
other forms of compensation paid for work at the Stations of each employee. To
the Knowledge of the Sellers, no key employee or group of employees has any
plans to terminate employment with the Seller. The Sellers are not a party to or
bound by any collective bargaining or similar agreement, nor have they
experienced any strikes, grievances, claims of unfair labor practices or other
collective bargaining disputes. The Sellers have no Knowledge of any
organizational effort presently being made or threatened by or on behalf of any
labor union with respect to the employees of the Seller. The Sellers have no
Knowledge of any Basis for any claim by past or current employees of the Sellers
or applicants for employment that the Sellers or their management have
discriminated based on each individual's race, sex, national origin, religion,
ethnicity, handicap or any other protected characteristic under applicable law.
p. Employee Benefits. Section 2(p) of the Disclosure Schedule lists
all Employee Benefit Plans that the Sellers maintain or to which the Sellers
contribute or is required to contribute for the benefit of any current or former
employee of the Sellers and true and correct copies of each such Employee
Benefit Plan have been delivered to the Buyers. Each Employee Benefit Plan (and
each related trust or insurance contract) complies and at all times has complied
in form and in operation in all respects with the applicable requirements of
ERISA and the Code. The Sellers do not have any commitment to create any
additional Employee Benefit Plan or modify or change any existing Employee
Benefit Plan that would affect any employee or terminated employee of the
Seller. There are no pending or, to the Knowledge of the Sellers, threatened
claims under, by or on behalf of any of the Employee Benefit Plans, by any
employee or beneficiary covered by any such Employee Benefit Plan, or otherwise
involving any such Employee Benefit Plan (other than routine claims for
benefits), nor have there been any Reportable Events or Prohibited Transactions
with respect to any Employee Benefit Plan.
q. Environment, Health, and Safety.
i. With respect to the operation of the Stations and the Real
Estate, the Sellers are, and at all times in the past has been, in
compliance in all material respects with all Environmental Laws and all
laws (including rules and regulations thereunder) of federal, state, and
local governments (and all agencies thereof) concerning employee health
and safety, and the Sellers have no Liability (and to Sellers' Knowledge
there is no Basis related to the past or present operations of the Sellers
or its predecessors for any present or future Liability) under any
Environmental Law. The Sellers have no Liability (and to Sellers'
Knowledge there is no Basis for any present or future charge, complaint,
action, suit, proceeding, hearing, investigation, claim, or demand against
the Sellers giving rise to any Liability) under the Occupational Safety
and Health Act, as amended, or any other law (or rule or regulation
thereunder) of any federal, state, local, or foreign government (or agency
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thereof) concerning employee health and safety, or for any illness of or
personal injury to any employee.
ii. The Sellers have obtained and at all times has been in
compliance in all material respects with all of the terms and conditions
of all permits, licenses, and other authorizations which are required
under, and has complied with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules,
and timetables which are contained in, all Environmental Laws or law of
any federal, state, or local or foreign government relating to worker
health and safety.
iii. All properties and equipment used in the Station and the
Acquired Assets have been free of asbestos, PCB's, methylene chloride,
trichloroethylene, 1, 2-trans- dichloroethylene, dioxins, dibenzofurans,
and Extremely Hazardous Substances. No pollutant, contaminant, or
chemical, industrial, hazardous, or toxic material or waste ever has been
buried, stored, spilled, leaked, discharged, emitted, or released on any
of the Real Estate. No above ground or underground storage tanks have ever
been located at, on or under the Real Estate. The Sellers have delivered
to the Buyers a complete copy of all environmental claims, reports,
studies, compliance actions or the like of the Sellers or which are
available to the Sellers with respect to any of the Real Estate or any of
the Acquired Assets.
r. Legal Compliance. The Sellers have complied in all material
respects with all laws (including rules and regulations thereunder) of federal,
state, local and foreign governments (and all agencies thereof. The Sellers have
filed in a timely manner all reports, documents, and other materials it was
required to file (and the information contained therein was correct and complete
in all material respects) under all applicable laws.
s. Advertising Contracts. Section 2(s) of the Disclosure Schedule
lists all arrangements for the sale of air time or advertising on the Sellers in
excess of $10,000, and the amount to be paid to the Sellers therefor. The
Sellers have no reason to believe and has not received a notice or indication of
the intention of any of the advertisers or third parties to material contracts
of the Sellers to cease doing business or to reduce in any material respect the
business transacted with the Sellers or to terminate or modify any agreements
with the Sellers (whether as a result of consummation of the transactions
contemplated hereby or otherwise).
t. Brokers' Fees. Other than the fee payable to Media Services
Group, which shall be the exclusive responsibility of Sellers, the Sellers have
no Liability or obligation to pay any fees or commissions to any broker, finder,
or agent with respect to the transactions contemplated by this Agreement.
u. Undisclosed Commitments or Liabilities. There are no material
commitments, liabilities or obligations relating to the Sellerss, whether
accrued, absolute, contingent or otherwise including, without limitation,
guaranties by the Sellers of the liabilities of third parties, for which
specific and adequate provisions have not been made on the Financial Statements
except those incurred in or as a result of the Ordinary Course of Business since
January 1, 1997.
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v. Disclosure. The representations and warranties contained in this
Section 2 do not contain any untrue statement of a fact or omit to state any
fact necessary in order to make the statements and information contained in this
Section 2 not misleading.
3. Representations and Warranties of the Buyer.
Buyers represent and warrant to the Sellers that the statements
contained in this Section 3 are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date except as set
forth in the Disclosure Schedule.
a. Organization of the Buyers. Broadcasting and Licensing are
corporations duly organized, validly existing, and in good standing under the
laws of Nevada.
b. Authorization of Transaction. Buyers have full power and
authority to execute and deliver this Agreement and the Ancillary Agreements and
to perform their obligations hereunder and thereunder. This Agreement and the
Ancillary Agreements constitute legally binding obligations of the Buyers,
enforceable against the Buyers in accordance with their respective terms and
conditions.
c. Noncontravention. Neither the execution and the delivery of this
Agreement or the Ancillary Agreements, nor the consummation of the transactions
contemplated hereby and thereby (including the assignments and assumptions
referred to in Section 1(e) above), will (i) violate any statute, regulation,
rule, judgment, order, decree, stipulation, injunction, charge, or other
restriction of any government, governmental agency, or court to which the Buyers
are subject or any provision of their articles of organization or other charter
documents, or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice or third party
consent under any contract, lease, sublease, license, sublicense, franchise,
permit, indenture, agreement or mortgage for borrowed money, instrument of
indebtedness, Security Interest, or other arrangement to which the Buyers are a
party or by which they are bound or to which any of their assets is subject.
Other than the Assignment Application described in Section 4(b), the Buyers do
not need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any court or government or governmental
agency in order for the Parties to consummate the transactions contemplated by
this Agreement or the Ancillary Agreements (including the assignments and
assumptions referred to in Section 1(e) above).
d. Brokers' Fees. The Buyers have no Liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Sellers could become
liable or obligated.
4. Pre-Closing Covenants.
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The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing:
a. General. Each of the Parties will use its reasonable best efforts
to take all action and to do all things necessary, proper, or advisable to
consummate and make effective the transactions contemplated by this Agreement
(including satisfying the closing conditions set forth in Section 5 below).
b. Assignment Applications. Within ten (10) business days after the
execution of this Agreement, the Sellers and the Buyers shall jointly file with
the FCC an application for assignment of the FCC Licenses, permits and
authorizations pertaining to the Station from the Sellers to Licensing (the
"Assignment Application"). The costs of the FCC filing fees in connection with
the Assignment Application shall be divided equally between the Parties. Each
party shall pay its own attorneys' fees. The Sellers and the Buyers shall
thereafter prosecute the Assignment Application with all reasonable diligence
and otherwise use commercially reasonable efforts to obtain the grant of the
Assignment Application as expeditiously as practicable (but neither the Sellers
nor the Buyers shall have any obligation to satisfy complainants or the FCC by
taking any steps which would have a material adverse effect upon the Station or
impose significant costs on such party). If the FCC imposes any condition on
either party to the Assignment Application, such party shall use commercially
reasonable efforts to comply with such condition, provided, that neither party
shall be required hereunder to comply with any condition that would have a
material adverse effect upon the Stations or any Affiliate. The Sellers and the
Buyers shall jointly oppose any requests for reconsideration or judicial review
of FCC approval of the Assignment Application and shall jointly request from the
FCC extension of the effective period of FCC approval of the Assignment
Application if the Closing shall not have occurred prior to the expiration of
the original effective period of the FCC Consent. Nothing in this Section 4(b)
shall be construed to limit either party's right to terminate this Agreement
pursuant to Section 9 of this Agreement.
c. Employment Offers. Upon notice to the Sellers, and at mutually
agreeable times, the Sellers will permit the Buyers to meet with its employees
prior to the Closing Date. The Buyers may, at their option, extend offers of
employment to all or any of the Sellers' employees effective on the Closing
Date. From and after the execution of this Agreement, the Sellers shall use
their best efforts to assist Buyers in retaining those employees of the Station
which the Buyers wish to hire in connection with the operation of the Sellers by
the Buyers subsequent to the Closing, and the Sellers will not take any action
to preclude or discourage any of the Sellers' employees from accepting any offer
of employment extended by the Buyers.
d. Notices and Consents. The Sellers will give all notices to third
parties and shall have obtained all third party consents, that the Buyers
reasonably may request. Each of the Parties will file any notification and
report forms and related material that it may be required to file with the
Federal Trade Commission and the Antitrust Division of the United States
Department of Justice under the Xxxx-Xxxxx-Xxxxxx Act, will use its best efforts
to obtain an early termination of the applicable waiting period, and will make
any further filings pursuant thereto that may be necessary, proper or advisable.
Each of the Parties will take any additional action that may be necessary,
proper, or advisable in connection with any other notices to, filings with, and
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authorizations, consents, and approvals of governments, governmental agencies,
and third parties that it may be required to give, make, or obtain.
e. Advertising Obligations. The Sellers shall satisfy its air time
obligations under its agreements for sale of air time and advertising on the
Sellers for goods or services ("Barter Agreements") such that the outstanding
aggregate balance owing under all Barter Agreements as of the Closing Date shall
not exceed Five Thousand Dollars ($5,000.00) worth of air time without the
Buyers' consent. On the Closing Date, the Sellers shall deliver to the Buyers a
schedule, certified by an officer of the Sellers, reflecting the aggregate
outstanding balances under all Barter Agreements in existence as of the Closing
Date.
f. Operating Statements. The Sellers shall deliver to the Buyers,
for the Buyers' informational purposes only, monthly unaudited statements of
operating revenues and operating expenses of the Sellers within ten (10) days
after each such statement is prepared by or for the Sellers.
g. Contracts. The Sellers will not without the prior written consent
of the Buyers amend, change, or modify any of the contracts listed on Section
2(k) of the Disclosure Schedule in any material respect. The Sellers will not
without prior written consent of the Buyers enter into any contract outside the
Ordinary Course of Business which involves more than Five Thousand Dollars
($5,000).
h. Operation of Station. The Sellers will not engage in any
practice, take any action, or enter into any transaction outside the Ordinary
Course of Business. The Sellers shall operate the Stations in compliance with
the FCC Licenses and the rules and regulations of the FCC, and the FCC Licenses
shall at all times remain in full force and effect. The Sellers shall file with
the FCC all material reports, applications, documents, instruments and other
information required to be filed in connection with the operation of the
Stations.
i. Credit and Receivables. The Sellers will follow its usual and
customary policies with respect to extending credit for sales of air time and
advertising on the Stations and with respect to collecting accounts receivable
arising from such extension of credit.
j. Preservation of Sellers and the Acquired Assets. The Sellers will
keep its Stations and the Acquired Assets and properties substantially intact,
including its present operations, physical facilities, working conditions,
relationships with lessors, licensors, advertisers, suppliers, customers, and
employees, all of the Confidential Information, call letters and trade secrets
of the Stations, and the FCC Licenses.
k. Full Access and Consultation. The Sellers will permit
representatives of the Buyers to have full access at all reasonable times, and
in a manner so as not to interfere with the normal business operations of the
Stations, to all premises, properties, books, records, contracts, Tax records,
and documents of or pertaining to the Sellers. The Sellers will consult with the
Buyers' management with a view to informing Buyers' management as to the
operations, management and business of the Stations.
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l. Notice of Developments. The Sellers will give prompt written
notice to the Buyers of any material development affecting business, operations
or prospects of the Stations or the Acquired Assets or the ability of the
Sellers to perform hereunder.
m. Exclusivity. The Sellers will not (i) solicit, initiate, or
encourage the submission of any proposal or offer from any person relating to
any (A) merger or consolidation, (B) acquisition or purchase of securities or
assets, or (C) similar transaction or business combination involving the
Sellers, or (ii) participate in any discussions or negotiations regarding,
furnish any information with respect to, assist or participate in, or facilitate
in any other manner any effort or attempt by any person to do or seek any of the
foregoing. The Sellers will notify the Buyers immediately if any person makes
any proposal, offer, inquiry, or contact with respect to any of the foregoing.
n. Title Insurance, Surveys and Environmental Assessments. The
Buyers will obtain with respect to each parcel of Real Estate subject to the
Leases, a leasehold owner's policy issued by a title insurer reasonably
satisfactory to the Sellers, in an amount equal to the fair market value of such
Real Estate (including all improvements located thereon), insuring over the
standard pre-printed exceptions and insuring leasehold title to such Real Estate
in the Buyers as of the Closing subject only to the Permitted Real Estate
Encumbrances, together with such endorsements for zoning, contiguity, public
access and extended coverage as the Buyers or their lender reasonably request,
(ii) with respect to each parcel of Owned Real Estate, an owner's policy of
title insurance by a title insurer reasonably satisfactory to the Buyers, in an
amount equal to the fair market value of such Real Estate (including all
improvements located thereon), insuring over the standard pre-printed exceptions
and insuring title to the Owned Real Estate to be vested in the Buyers as of the
Closing free and clear of all liens and encumbrances except Permitted Real
Estate Encumbrances, together with such endorsements for zoning, contiguity,
public access and extended coverage as the Buyers or its lender reasonably
request, (iii) a current survey of each parcel of Real Estate certified to the
Buyers and its lender, prepared by a licensed surveyor and conforming to current
ALTA Minimum Detail Requirements for Land Title Surveys, disclosing the location
of all improvements, easements, party walls, sidewalks, roadways, utility lines,
and other matters shown customarily on such surveys, and showing access
affirmatively to public streets and roads (the "Surveys') which shall not
disclose any survey defect or encroachment from or onto any of the Real Estate
which has not been cured or insured over prior to the Closing; and (iv) with
respect to each parcel of Owned Real Estate (but not parcels of leased Real
Estate except to the extent reasonably required by Buyers' lender), a current
Phase I environmental site assessment from an environmental consultant or
engineer reasonably satisfactory to the Buyers which does not indicate that the
Sellers and the Real Estate are not in compliance with any Environmental Law and
which shall not disclose or recommend any action with respect to any condition
to be remediated or investigated or any contamination on the site assessed.
o. Control of Sellers. The transactions contemplated by this
Agreement shall not be consummated until after the FCC has given its consent and
approval to the Assignment Application. Between the date of this Agreement and
the Closing Date, the Buyers and their employees or agents shall not directly or
indirectly control, supervise, or direct, or attempt to control,
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supervise, or direct, the operation of the Stations, and such operation shall be
the sole responsibility of and in the control of the Sellers.
p. Risk of Loss. The risk of loss, damage, or destruction to any of
the Acquired Assets shall remain with the Sellers until the Closing. In the
event of any such loss, damage, or destruction the Sellers will promptly notify
the Buyers of all particulars thereof, stating the cause thereof (if known) and
the extent to which the cost of restoration, replacement and repair of the
Acquired Assets lost, damaged or destroyed will be reimbursed under any
insurance policy with respect thereto. The Sellers will, at Sellers' expense,
repair or replace such Acquired Assets to their former condition as soon as
possible after loss, damage or destruction thereof and shall use its best
efforts to restore as promptly as possible transmissions as authorized in the
FCC Licenses. The Closing Date shall be extended (with FCC consent, if
necessary) for up to sixty (60) days to permit such repair or replacement. If
repair or replacement cannot be accomplished within sixty (60) days of the date
of the Sellers' notice to the Buyers and the Buyers determine that the Sellers'
failure to repair or replace would have a material adverse effect on the
operation of the Stations:
i. the Buyers may elect to terminate this Agreement; or
ii. the Buyers may postpone the Closing Date until such time
as the property has been repaired, replaced or restored in a manner and to
an extent reasonably satisfactory to the Buyers, unless the same cannot be
reasonably effected within ninety (90) days of the date of the Sellers'
notice to the Buyers, in which case either party may terminate this
Agreement; or
iii. the Buyers may choose to accept the Acquired Assets in
their "then" condition, together with the Sellers' assignment to the
Buyers of all rights under any insurance claims covering the loss, damage
or destruction and payment over to the Buyers of any proceeds under any
such insurance policies, previously received by the Sellers with respect
thereto plus an amount equal to the amount of any deductible or
self-insurance maintained by Sellers on such Acquired Assets. In the event
the Closing Date is postponed pursuant to this Section 4(p), the parties
hereto will cooperate to extend the time during which this Agreement must
be closed as specified in the consent of the FCC.
q. Phase I Assessments. If the Phase I assessments described in
Section 4(n) above prescribe further testing or indicate that the Real Estate is
not in compliance with Environmental Laws or that certain conditions must be
remedied, Seller shall bear the cost of such further testing or remedial
measures up to Fifty Thousand Dollars ($50,000). In the event the cost of
further testing or remedial measures exceeds Fifty Thousand Dollars, either (i)
Seller shall agree to bear such excess cost and shall complete the testing and
remedial measures to the satisfaction of Buyers, or (ii) if the Seller declines
to bear such expense, Buyer shall have the right to terminate the Agreement
without penalty under Section 9(a)(vii) below.
5. Conditions to Obligation to Close.
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a. Conditions to Obligation of the Buyers. The obligation of Buyers
to consummate the transactions to be performed by them in connection with the
Closing is subject to satisfaction of the following conditions:
i. the representations and warranties set forth in Section 2
above shall be true and correct in all respects at and as of the Closing
Date as though made on and as of the Closing Date;
ii. the Sellers shall have performed and complied with all of
its covenants hereunder in all respects through the Closing;
iii. the Sellers shall have procured all of the third party
consents specified in Section 4(d) above and all of the title insurance
commitments (and endorsements), Surveys and environmental site assessments
described in Section 4(o) above;
iv. no action, suit, investigation, inquiry or other
proceeding shall be pending or threatened before any court or
quasijudicial or administrative agency of any federal, state, local, or
foreign jurisdiction wherein an unfavorable judgment, order, decree,
stipulation, injunction, or charge would (A) prevent consummation of any
of the transactions contemplated by this Agreement or impose damages or
penalties upon any of the parties if such transactions are consummated,
(B) cause any of the transactions contemplated by this Agreement to be
rescinded following consummation, or (C) affect adversely the right of the
Buyers to own, operate, or control the Acquired Assets (and no such
judgment, order, decree, stipulation, injunction, or charge shall be in
effect);
v. the Sellers shall have delivered to the Buyers a
certificate (without qualification as to knowledge or materiality or
otherwise except as otherwise provided in the specific representation
under Section 2) to the effect that each of the conditions specified above
in Sections 5(a)(i) through (iv) is satisfied in all respects;
vi. each of the Assignment Applications shall have been
approved by a Final Order of the FCC all applicable waiting periods (and
any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act shall have expired
or been terminated and the Buyers shall have received all governmental
approvals required to transfer all other authorizations, consents, and
approvals of governments and governmental agencies set forth in the
Disclosure Schedule;
vii. the relevant parties shall have entered into the
Postclosing Agreement;
viii. the Buyers shall have received from counsel to the
Sellers an opinion with respect to the matters set forth in Exhibit F
attached hereto, addressed to the Buyers and its lender and dated as of
the Closing Date;
ix. the Parties shall have agreed to allocate the Purchase
Price (and all other capitalizable costs) among the Acquired Assets for
all purposes (including financial
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accounting and tax purposes) in accordance with an allocation schedule to
be delivered at closing; and
x. all actions to be taken by the Sellers in connection with
the consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to the Buyers.
b. Conditions to Obligation of the Sellers. The obligation of the
Sellers to consummate the transactions to be performed by it in connection with
the Closing is subject to satisfaction of the following conditions:
i. the representations and warranties set forth in Section 3
above shall be true and correct in all respects at and as of the Closing
Date as though made on and as of the Closing Date;
ii. the Buyers shall have performed and complied with all of
their covenants hereunder in all respects through the Closing;
iii. no action, suit, investigation, inquiry or other
proceeding shall be pending or threatened before any court or quasi
judicial or administrative agency of any federal, state, local, or foreign
jurisdiction wherein an unfavorable judgment, order, decree, stipulation,
injunction, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement or impose damages or penalties
upon any of the Parties if such transactions are consummated, or (B) cause
any of the transactions contemplated by this Agreement to be rescinded
following consummation (and no such judgment, order, decree, stipulation,
injunction, or charge shall be in effect);
iv. the Buyers shall have delivered to the Sellers a
certificate (without qualification as to knowledge or materiality or
otherwise) to the effect that each of the conditions specified above in
Section 5(b)(i)-(iii) is satisfied in all respects and the statements
contained in such certificate shall be deemed a warranty of the Buyers
which shall survive the Closing;
v. each of the Assignment Applications shall have been
approved by a Final Order of the FCC and the Buyers shall have received
all governmental approvals required to transfer all other authorizations,
consents, and approvals of governments and governmental agencies set forth
in the Disclosure Schedule;
vi. the relevant parties shall have entered into the
Postclosing Agreement; and
vii. all actions to be taken by the Buyers in connection with
the consummation of the transactions contemplated hereby and all
certificates, opinions,
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instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance
to the Sellers.
6. Post-Closing Covenants.
The Parties agree as follows with respect to the period following
the Closing:
a. General. In case at any time after the Closing any further action
is necessary or desirable to carry out the purposes of this Agreement, each of
the Parties will take such further action (including the execution and delivery
of such further instruments and documents) as any other Party reasonably may
request, all the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under Section 7 below).
b. Litigation Support. In the event and for so long as any Party
actively is contesting or defending against any charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand in connection with (i) any
transaction contemplated under this Agreement or (ii) any fact, situation,
circumstance, status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction on or prior to the Closing Date
involving the Stations, each of the other Parties will reasonably cooperate with
the contesting or defending Party and its counsel in the contest or defense,
make available his or its personnel, and provide such testimony and access to
its books and records as shall be necessary in connection with the contest or
defense, all at the sole cost and expense of the contesting or defending Party
(unless the contesting or defending Party is entitled to indemnification
therefor under Section 7 below); provided, however, that such access and
cooperation does not unreasonably disrupt the normal operations of the
cooperating party.
c. Adjustments. Operation of the Stations and the income and
expenses attributable thereto up through the close of business on the day before
the Closing Date shall be for the account of the Sellers and thereafter for the
account of the Buyers. Such items as employee salaries, vacation, sick day and
personal time accruals, and fringe benefits, power and utilities charges,
insurance, real and personal property taxes, prepaid expenses, deposits, music
license fees, and rents and payments pertaining to the Assumed Contracts
(including any contracts for the sale of time for cash, trade or barter so
assigned) shall be prorated between the Sellers and the Buyers as of the Closing
Date in accordance with the foregoing principle. Contractual arrangements that
do not reflect an equal rate of compensation to a Stations over the term of the
agreement shall be equitably adjusted as of the Closing Date. The prorations and
adjustments hereunder shall be made and paid insofar as feasible on the Closing
Date, with a final settlement sixty (60) days after the Closing Date. In the
event of any disputes between the Parties as to such adjustments, the amounts
not in dispute shall nonetheless be paid at such time and such disputes shall be
determined by an independent accounting firm mutually acceptable to both parties
and the fees and expenses of such accounting firm shall be paid one-half (1/2)
by the Sellers (up to a maximum of $5,000) and one-half (1/2) by the Buyers.
d. Collection of Accounts Receivable. Accounts receivable shall be
collected and remitted under the procedures specified in the Time Brokerage
Agreement.
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x. Xxxxxxxxx Obligations. In the event an offer of employment is
extended by the Buyers to and accepted by an employee of the Sellers pursuant to
Section 4(c) and such subsequent employment by the Buyers is terminated within
sixty (60) days from the Closing Date, the Sellers shall be responsible for, and
shall pay to such accepting employee, all severance benefits (if any, pursuant
to the Sellers' practices as in effect on the Closing Date) that may be due and
owing such employee by reason of his or her employment with either the Sellers
or the Buyers.
f. Consents. In the event any of the Assumed Contracts are not
assignable or any consent to such assignment is not obtained on or prior to the
Closing Date, and the Buyers elect to consummate the transactions contemplated
herein despite such failure or inability to obtain such consent, the Sellers
shall continue to use commercially reasonable efforts to obtain any such
assignment or consent after the Closing Date. Until such time as such assignment
or approval has been obtained, the Sellers will cooperate with Buyers in any
lawful and economically feasible arrangement to provide that the Buyers shall
receive the Sellers' interest in the benefits under any such Assumed Contract,
including performance by the Sellers as agent, if economically feasible;
provided, however, that the Buyers shall undertake to pay or satisfy the
corresponding liabilities for the enjoyment of such benefit to the extent that
Buyers would have been responsible therefor if such consent or assignment had
been obtained.
7. Remedies for Breaches of this Agreement.
a. Survival. All of the representations and warranties of the Buyers
and Sellers contained in Section 2 of this Agreement shall survive the Closing
and continue in full force and effect for a period of two (years) following the
Closing Date.
b. Indemnification Provisions for the Benefit of the Buyers. Except
as described below in Section 7(e) with respect to a breach of a warranty or
covenant prior to the Closing Date, the Sellers agree to indemnify the Buyers
from and against the entirety of any Adverse Consequences the Buyers may suffer
resulting from, arising out of, relating to, in the nature of, or caused by:
i. any misrepresentation or breach of any of the Sellers'
representations or warranties, and covenants contained in this Agreement
or in any Ancillary Agreement executed and/or delivered by the Sellers (so
long as the Buyers make a written claim for indemnification within the
applicable survival period);
ii. any breach or nonfulfillment of any agreement or covenant
of the Sellers contained herein or in any Ancillary Agreement;
iii. any Liability of the Sellers which is not an Assumed
Liability; and/or
iv. any Liability of the Buyers arising by operation of law
(including under any bulk transfer law of any jurisdiction or under any
common law doctrine of defacto merger or successor liability) which is not
an Assumed Liability.
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c. Indemnification Provisions for the Benefit of the Sellers. Except
as described below in Section 7(e) with respect to a breach of a warranty or
covenant prior to the Closing Date, the Buyers agree to indemnify the Sellers
from and against the entirety of any Adverse Consequences the Sellers may suffer
resulting from, arising out of, relating to, in the nature of, or caused by (i)
any misrepresentation or breach of any of the Buyers' representations or
warranties contained in this Agreement or in any Ancillary Agreement executed
and/or delivered by the Buyers (so long as the Sellers make a written claim for
indemnification within the applicable survival period) or (ii) any breach or
nonfulfillment of any agreement or covenant of the Buyers contained herein or in
any Ancillary Agreement, or (iii) any Assumed Liability.
d. Specific Performance. Each of the Parties acknowledges and agrees
that the Buyers would be damaged irreparably in the event any of the provisions
of this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each of the Parties agrees that the Buyers
shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically this Agreement and the
terms and provisions hereof in any action instituted in any court of the United
States or any state thereof having jurisdiction over the Parties and the matter
(subject to the provisions set forth in Section 10(o) below), in addition to any
other remedy to which it may be entitled, at law or in equity. Each of the
Parties acknowledges and agrees that not withstanding the provision in Section
7(e) with respect to the remedy of liquidated damages upon a breach of a
warranty or covenant of this Agreement prior to the Closing, money damages would
not be an adequate remedy for Buyers for a breach of any provision of this
Agreement.
e. Liquidated Damages. The Buyers and the Sellers acknowledge that
in the event that the transactions contemplated by this Agreement are not closed
because of a default by the Buyers, the Adverse Consequences to the Sellers as a
result of such default may be difficult, if not impossible, to ascertain.
Accordingly, in lieu of indemnification pursuant to Section 7(c), the Sellers
shall be entitled to receive from the defaulting Party for such default the
Xxxxxxx Money Deposit as liquidated damages without the need for proof of
damages, subject only to successfully proving in a court of competent
jurisdiction that the Buyer materially breached this Agreement and that the
transactions contemplated thereby have not occurred. The Sellers shall proceed
against the Xxxxxxx Money Deposit as full satisfaction of liquidated damages
owed by the Buyers and as its sole remedy for a failure of the transactions
contemplated hereby to occur as a result of a material breach of the terms of
this Agreement by the Buyers.
f. Matters Involving Third Parties. If any third party shall notify
any Party (the "Indemnified Party") with respect to any matter which may give
rise to a claim for indemnifica tion against any other Party (the "Indemnifying
Party",) under this Section 7, then the Indemnified Party shall notify the
Indemnifying Party thereof promptly; provided, however, that no delay on the
part of the Indemnified Party in notifying the Indemnifying Party shall relieve
the Indemnifying Party from any liability or obligation hereunder unless (and
then solely to the extent) the Indemnifying Party thereby is damaged as a result
of such failure. In the event any Indemnifying Party notifies the Indemnified
Party within 15 days after the Indemnified Party has given notice of the matter
that the Indemnifying Party is assuming the defense thereof, (i) the
Indemnifying Party will defend the Indemnified Party against the matter with
counsel of its choice reasonably
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satisfactory to the Indemnified Party, (ii) the Indemnified Party may retain
separate co-counsel at its sole cost and expense (except that the Indemnifying
Party will be responsible for the fees and expenses of the separate co-counsel
to the extent the Indemnified Party reasonably concludes that the counsel the
Indemnifying Party has selected has a conflict of interest), (iii) the
Indemnified Party will not consent to the entry of any judgment or enter into
any settlement with respect to the matter without the written consent of the
Indemnifying Party (not to be withheld unreasonably), and (iv) the Indemnifying
Party will not consent to the entry of any judgment with respect to the matter,
or enter into any settlement which does not include a provision whereby the
plaintiff or claimant in the matter releases the Indemnified Party from all
Liability with respect thereto, without the written consent of the Indemnified
Party (not to be withheld unreasonably). In the event the Indemnifying Party
does not notify the Indemnified Party within 15 days after the Indemnified Party
has given notice of the matter that the Indemnifying Party is assuming the
defense thereof, however, and/or in the event the Indemnifying Party shall fail
to defend such claim actively and in good faith, then the Indemnified Party may
defend against, or enter into any settlement with respect to, the matter in any
manner it reasonably may deem appropriate.
g. Limitation of Liability. Notwithstanding anything in this
Agreement to the contrary, after the Closing neither party shall indemnify or
otherwise be liable to the other party from and after the Closing Date except to
the extent that the Adverse Consequences suffered by the Identified Party, in
the aggregate from all indemnifiable events shall exceed Twenty-Five Thousand
Dollars ($25,000) and indemnification shall be made by the indemnifying party
only to the extent of such excess over Twenty-Five Thousand Dollars ($25,000);
provided however that the foregoing limitation shall not be applicable to: (i)
the obligations of the Buyer to pay and discharge any Liability of the Sellers
to third parties from and after the Closing Date assumed by the Buyer under the
terms of this Agreement; (ii) the obligation of the Sellers to pay and discharge
any Liability to third parties not assumed by the Buyer under the terms of this
Agreement, or (iii) the Sellers' obligation to deliver clear title to the
Acquired Assets.
8. Definitions.
"Acquired Assets" means all right, title, and interest in and to all of
the assets of the Sellers, other than Retained Assets that are used or useful in
the operation of the Stations, wherever located, including but not limited to
all of its (a) leaseholds and other interests of any kind therein, improvements,
fixtures, and fittings thereon (such as towers and antennae), and easements,
rights-of-way, and other appurtenances thereto); (b) tangible personal property
(such as fixed assets, computers, data processing equipment, electrical devices,
monitoring equipment, test equipment, switching, terminal and studio equipment,
transmitters, transformers, receivers, broadcast facilities, furniture,
furnishings, inventories of compact disks, records, tapes and other supplies,
vehicles) and all assignable warranties with respect thereto; (c) Intellectual
Property, goodwill associated therewith, licenses and sublicenses granted and
obtained with respect thereto, and rights thereunder, remedies against
infringements thereof, and rights to protection of interests therein under the
laws of all jurisdictions; (d) rights under orders and agreements (including
those Barter Agreements and Advertising Contracts identified on the Disclosure
Schedule) now existing or entered into in the Ordinary Course of Business for
the sale of advertising time on the Sellers; (e) Assumed Contracts, indentures,
Security Interests, guaranties, other similar arrangements, and rights
thereunder; (f) call
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letters of the Stations, jingles, logos, slogans, and business goodwill of the
Stations; (g) claims, deposits, prepayments, refunds, causes of action, chooses
in action, rights of recovery (including rights under policies of insurance),
rights of set off, and rights of recoupment; (h) Licenses and similar rights
obtained from governments and governmental agencies; and (i) FCC logs and
records and all other books, records, ledgers, logs, files, documents,
correspondence, advertiser lists, all other lists, plats, architectural plans,
drawings, and specifications, creative materials, advertising and promotional
materials, program production materials, studies, reports, and other printed or
written materials; and (j) goodwill of the Stations.
"Adverse Consequences" means all charges, complaints, actions, suits,
proceedings, hearings, investigations, claims, demands, judgments, orders,
decrees, stipulations, injunctions, damages, dues, penalties, fines, costs,
amounts paid in settlement, Liabilities, obligations, Taxes, liens, losses,
expenses, and fees, including all attorneys' fees and court costs.
"Advertising Contracts" has the meaning set forth in Section 2(s), above.
"Affiliate" means with reference to any person or entity, another person
or entity controlled by, under the control of or under common control with that
person or entity.
"Assignment Application" has the meaning set forth in Section 4(b) above.
"Assumed Contracts" means the Leases, the Barter Agreements, the
Advertising Contracts and those contracts identified on Section 2(k) of the
Disclosure Schedule as those to be assumed by Broadcasting.
"Assumed Liabilities" means (a) obligations of the Sellers which accrue
after the Closing Date under the Assumed Contract either: (i) to furnish
services, and other non-Cash benefits to another party after the Closing; or
(ii) to pay for goods, services, and other non-Cash benefits that another party
will furnish to it after the Closing. The Assumed Liabilities shall not include
any Retained Liabilities.
"Basis" means any past or present fact, situation, circumstance, status,
condition, activity, practice, plan, occurrence, event, incident, action,
failure to act, or transaction that forms or could form the basis for any
specified consequence
"Building Amount" means the lower of (a) the documented out-of-pocket
costs of Seller, through the Closing Date, associated with completion of the
addition, the consolidation of operations, and the move into the Xxxxxx building
described in Section 2(i) of the Disclosure Schedule, or (b) Two Hundred
Thousand Dollars ($200,000.00).
"Buyers" has the meaning set forth in the preface above.
"Cash" means cash and cash equivalents determined in accordance with GAAP
applied on a basis consistent with the preparation of the Financial Statements.
-22-
"Closing" has the meaning set forth in Section 1(d) above.
"Closing Date" has the meaning set forth in Section 1(d) above.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential Information" means any information concerning the businesses
and affairs of the Seller.
"Disclosure Schedule" has the meaning set forth in Section 1 above.
"Xxxxxxx Money Deposit" has the meaning set forth in Section 1(c) above.
"Xxxxxxx Money Escrow Agreement" has the meaning set forth in Section 1(c)
above.
"Employee Benefit Plan" means any (a) nonqualified deferred compensation
or retirement plan or arrangement which is an Employee Pension Benefit Plan, (b)
qualified defined contribution retirement plan or arrangement which is an
Employee Pension Benefit Plan, (c) qualified defined benefit retirement plan or
arrangement which is an Employee Pension Benefit Plan (including any
Multi-employer Plan), or (d) Employee Welfare Benefit Plan or material fringe
benefit plan or program.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA Sec.
3(2).
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA Sec.
3(1).
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Resource Conservation and Recovery
Act of 1976, the Federal Water Pollution Control Act of 1972, the Clean Air Act
of 1970, the Safe Drinking Water Act of 1974, the Toxic Substances Control Act
of 1976, the Refuse Act of 1899, or the Emergency Planning and Community
Right-to-Know Act of 1986 (each as amended), or any other law of any federal,
state, local, or foreign government or agency thereof (including rules,
regulations, codes, plans, judgments, orders, decrees, stipulations,
injunctions, and charges thereunder) relating to public health and safety, or
pollution or protection of the environment, including, without limitation, laws
relating to emissions, discharges, releases, or threatened releases of
pollutants, contaminants, or chemical, industrial, hazardous or toxic materials
or wastes into ambient air, surface water, ground water, or lands or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, or chemical,
industrial, hazardous, or toxic materials or wastes
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Agent" means Media Services Group.
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"Extremely Hazardous Substance" has the meaning set forth in Section 302
of the Emergency Planning and Community Right-to-Know Act of 1986, as amended.
"FCC" means the Federal Communications Commission of the United States.
"FCC Licenses" means the licenses, permits and other authorizations,
including any temporary waiver or special temporary authorization, issued by the
FCC to the Seller in connection with the conduct of the business and operation
of the Sellers.
"Final Order" means an action by the FCC as to which: (a) no request for
stay by the FCC is pending, no such stay is in effect, and any deadline for
filing a request for any such stay has passed; (b) no appeal, petition for
rehearing or reconsideration, or application for review is pending before the
FCC and the deadline for filing any such appeal, petition or application has
passed; (c) the FCC has not initiated reconsideration or review on its own
motion and the time in which such reconsideration or review is permitted has
passed; and (d) no appeal to a court, or request for stay by a court, of the
FCC's action is pending or in effect, and the deadline for filing any such
appeal or request has passed.
"Financial Statements" has the meaning set forth in Section 2(e) above.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"Xxxx-Xxxxx-Xxxxxx Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
"Indemnified Party" has the meaning set forth in Section 7(d) above.
"Indemnifying Party" has the meaning set forth in Section 7(d) above.
"Intellectual Property" means all (a) patents, patent applications, patent
disclosures, and improvements thereto, (b) trademarks, service marks, trade
dress, call letters, logos, trade names, and corporate names and registrations
and applications for registration thereof, (c) all programs, programming
materials, copyrights and registrations and applications for registration
thereof, (d) mask works and registrations and applications for registration
thereof, (e) computer software, data, and documentation, (f) trade secrets and
confidential business information (including ideas, formulas, compositions,
inventions (whether patentable or unpatentable and whether or not reduced to
practice), know-how, market and other research information, drawings,
specifications, designs, plans proposals, technical data, copyrightable works,
financial, marketing, and business data, pricing and cost information, business
and marketing plans, and customer and supplier lists and information), (g) other
proprietary rights, and (h) copies and tangible embodiments thereof (in whatever
form or medium).
"Knowledge" means actual knowledge after reasonable investigation.
-24-
"Leases" means those real estate leases to which Seller is a party
governing Seller's studios and FM tower sites, as described in Section 2(i) of
the Disclosure Schedule.
"Liability" means any liability (whether known or unknown, whether
absolute or contingent, whether liquidated or unliquidated, and whether due or
to become due), including any liability for Taxes.
"Licenses" means all FCC and other governmental licenses, franchises,
approvals, certificates, authorizations and rights of the Seller with respect to
the operations of the Sellers and all applications therefor, together with any
renewals, extension or modifications thereof and additions thereto.
"Multi-employer Plan" has the meaning set forth in ERISA Sec. 3(37).
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Owned Real Estate" means the real property owned by the Seller as
described in Section 2(i) of the Disclosure Schedule and all buildings,
fixtures, and improvements located thereon.
"Party" has the meaning set forth in the preface above.
"Permitted Real Estate Encumbrances" shall have the meaning set forth in
Section 2(i), above.
"Post-Closing Agreement" means the Post-Closing Agreement with Seller's
Owner in the form attached hereto as Exhibit D.
"Prohibited Transaction" has the meaning set forth in ERISA Section 406
and Code Section 4975.
"Purchase Price " has the meaning set forth in Section 1(c) above.
"Real Estate" means the Owned Real Estate and the real estate, building,
fixtures and improvements which are the subject of the Leases.
"Reportable Event" has the meaning set forth in ERISA Section 4043.
"Retained Assets" means (i) the corporate charter, qualifications to
conduct business as a foreign corporation, arrangements with registered agents
relating to foreign qualifications, taxpayer and other identification numbers,
seals, minute books, stock transfer books, blank stock certificates, and other
documents relating to the organization, maintenance, and existence of the Seller
as a corporation; (ii) any of the rights of the Seller under this Agreement (or
under any side agreement between the Seller on the one hand and the Buyers on
the other hand entered into on or after the date of this Agreement); (iii)
accounts, notes and other receivables of the Seller; and (iv) Cash.
-25-
"Retained Liabilities" means any other obligations or Liabilities of the
Seller, including but not limited to: (i) any Liability relating to the
ownership or operation of the Sellers prior to the Closing; (ii) any Liability
of the Seller for income, transfer, sales, use, and other Taxes arising in
connection with the consummation contemplated hereby; (iii) any Liability of the
Seller for costs and expenses incurred in connection with this Agreement or the
consummation of the transactions contemplated hereby (except as set forth in
Section 4(i) relating to Surveys, title commitments and environmental audits and
Section 4(b) with regard to the Assignment Application; or (iv) any Liability or
obligation of the Seller under this Agreement (or under any side agreement
between the Seller on the one hand and the Buyers on the other hand entered into
on or after the date of this Agreement).
"Security Interest" means any mortgage, pledge, security interest,
encumbrance, charge, or other lien, other than (a) liens for Taxes not yet due
and payable; and (b) liens arising under worker's compensation, unemployment
insurance, social security, retirement, and similar legislation.
"Sellers" has the meaning set forth in the preface above.
"Stations" means the radio broadcast stations WDDD-FM (Marion, Illinois),
WDDD-AM (Xxxxxxxx City, Illinois), WFRX-AM (West Frankfort, Illinois), WTAO-FM
(Murphysboro, Illinois), WVZA-FM (Herrin, Illinois), WQUL-FM (West Frankfort,
Illinois), and the application for a station at XX-0000 (Xxxxxxx Xxxx,
Xxxxxxxx).
"Subsidiary," with respect to any person, means any corporation,
partnership, joint venture, limited liability company, trust or estate of which
(or in which) 50% or more of (i) the outstanding capital stock or other equity
interest having voting power to elect a majority of the Board of Directors of
such corporation or persons having a similar role as to an entity that is not a
corporation, (ii) the interest in the profits of such partnership or joint
venture, or (iii) the beneficial interest of such trust or estate are at such
time directly or indirectly owned by such person or one or more of such person's
Subsidiaries.
"Surveys" has the meaning set forth in Section 4(o) above.
"Tax" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Code Sec. 59A), customs
duties, capital stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"Time Brokerage Agreement" has the meaning set forth in Section 1(g)
above.
-26-
9. Termination.
(a) Termination of Agreement. Certain of the Parties may terminate
this Agreement as provided below:
i. the Buyers and the Sellers may terminate this Agreement by
mutual written consent at any time prior to the Closing;
ii. the Buyers may terminate this Agreement by giving written
notice to the Sellers at any time prior to the Closing in the event the
Sellers are in breach of any representation, warranty, or covenant
contained in this Agreement; provided, however, that if such breach is
capable of being cured, such breach also remains uncured for twenty (20)
days after notice of breach is received by the Sellers from the Buyers;
iii. the Sellers may terminate this Agreement by giving
written notice to the Buyers at any time prior to the Closing in the event
the Buyers are in breach of any representation, warranty, or covenant
contained in this Agreement; provided, however that if such breach is
capable being cured, such breach remains uncured for twenty (20) days
after notice of breach is received by the Buyers from the Sellers;
iv. the Buyers may terminate this Agreement by giving written
notice to the Sellers at any time prior to the Closing if the Closing
shall not have occurred on or before the 270th day following the date of
this Agreement by reason of the failure of any condition precedent under
Section 5(a) hereof (unless the failure results primarily from the Buyers
themselves breaching any representation, warranty, or covenant contained
in this Agreement);
v. the Sellers may terminate this Agreement by giving written
notice to the Buyers at any time prior to the Closing if the Closing shall
not have occurred on or before the 270th day following the date of this
Agreement by reason of the failure of any condition precedent under
Section 5(b) hereof (unless the failure results primarily from the Sellers
itself breaching any representation, warranty, or covenant contained in
this Agreement);
vi. the Buyers or the Sellers may terminate this Agreement if
any Assignment Application is denied by Final Order; or
vii. the Buyers may terminate this Agreement if the Seller
declines to undertake the expense of environmental remedial measures
described in Section 4(q) above.
(b) Effect of Termination. If any Party terminates this Agreement
pursuant to Section above, all obligations of the Parties hereunder shall
terminate without any Liability of any Party to any other Party (except for any
Liability of any Party then in breach).
10. Miscellaneous.
-27-
a. Press Releases and Announcements. No Party shall issue any press
release or announcement relating to the subject matter of this Agreement prior
to the Closing without the prior written approval of the other Party; provided,
however, that any Party may make any public disclosure it believes in good faith
is required by law or regulation (in which case the disclosing Party will advise
the other Party prior to making the disclosure).
b. No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the Parties and their respective
successors and permitted assigns.
c. Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement between the Parties and
supersedes any prior understandings, agreements, or representations by or
between the Parties, written or oral, that may have related in any way to the
subject matter hereof.
d. Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other Party, provided that (i) the Buyers may assign all of
their right, title and interest in, to and under this Agreement to one or more
Affiliates, who shall then, subject to the terms and conditions of this
Agreement, have the right to receive the Acquired Assets, assume the Assumed
Liabilities, and to pay to the Sellers the Purchase Price therefor or to any
successor to the Buyers in the event of any sale, merger or consolidation of the
Buyers, and (ii) Buyers may assign their indemnification claims and their rights
under the warranties and representations of the Sellers to the financial
institution(s) providing financing to the Buyers in connection with this
transaction.
e. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
f. Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
g. Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing and shall be considered to be given
and received in all respects when hand delivered, when delivered via prepaid
express or courier delivery service, when sent by facsimile transmission
actually received by the receiving equipment or three (3) days after deposited
in the United States mail, certified mail, postage prepaid, return receipt
requested, in each case addressed to the intended recipient as set forth below:
If to the Seller:
Xxxxxx X. Xxxxxxxxxx
Chairman and CEO
-28-
Clearly Superior Radio, LLC
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Copy to:
Xxxx Xxxxxxxx, Esquire
Winters, Brewster, Xxxxxx & Xxxxxxxx
000 Xxxx Xxxx, X.X. Xxx 000
Xxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
(which copy shall not constitute notice to Seller)
If to the Buyers:
Cumulus Broadcasting, Inc.
Cumulus Licensing Corp.
c/o QUAESTUS Management Corp.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
Fax: (000) 000-0000
With a copy to:
Cumulus Broadcasting, Inc.
Cumulus Licensing Corp.
000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
Any Party may give any notice, request, demand, claim or other communication
hereunder using any other means (including telex, ordinary mail, or electronic
mail), but no such notice, request, demand, claim or other communication shall
be deemed to have been duly given unless and until it actually is received by
the party for whom it is intended. Any party may change the address to which
notices, requests, demands, claims, and other communications hereunder are to be
delivered by giving the other party notice in the manner herein set forth.
-29-
h. Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws (and not the law of conflicts) of the State
of Illinois.
i. Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Buyers and the Seller. No waiver by any Party of any default, misrepresentation,
or breach of warranty or covenant hereunder, whether intentional or not, shall
be deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
j. Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the Parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
k. Expenses. The Buyers and the Sellers, will each bear their own
costs and expenses (including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby, other than as set
forth in Section 4(b) with regard to the Assignment Applications and as set
forth in Section 4(o) with respect to Surveys, title commitments and
environmental audits. The Sellers will pay all income taxes. The Sellers and the
Buyers will each pay one-half (1/2) of any transfer or sales taxes and other
recording or similar fees necessary to vest title to each of the Acquired Assets
in the Buyers.
l. Construction. The language used in this Agreement will be deemed
to be the language chosen by the Parties to express their mutual intent, and no
rule of strict construction shall be applied against any Party. Any reference to
any federal, state, local, or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise. Nothing in the Disclosure Schedule shall be deemed adequate
to disclose an exception to a representation or warranty made herein unless the
Disclosure Schedule identifies the exception with reasonable particularity and
describes the relevant facts in reasonable detail. The Parties intend that each
representation, warranty, and covenant contained herein shall have independent
significance. If any Party has breached any representation, warranty, or
covenant contained herein in any respect, the fact that there exists another
representation, warranty, or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which the Party has not
breached shall not detract from or mitigate the fact that the Party is in breach
of the first representation, warranty, or covenant.
-30-
m. Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
n. Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state court sitting in Xxxxxxxxxx County, Illinois, or
federal court sitting in the Southern District of Illinois in any action or
proceeding arising out of or relating to this Agreement, agrees that all claims
in respect of the action or proceeding may be heard and determined in any such
court, and agrees not to bring any action or proceeding arising out of or
relating to this Agreement in any other court. Each of the Parties waives any
defense of inconvenient forum to the maintenance of any action or proceeding so
brought and waives any bond, surety, or other security that might be required of
any other Party with respect thereto. Any Party may make service on the other
Party by sending or delivering a copy of the process to the Party to be served
at the address and in the manner provided for the giving of notices in Section
10(g) above. Nothing in this Section 10(n), however, shall affect the right of
any Party to serve legal process in any other manner permitted by law. Each
Party agrees that a final judgment in any action or proceeding so brought shall
be conclusive and may be enforced by suit on the judgment or in any other manner
provided by law.
* * * * *
-31-
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on as
of the date first above written.
CUMULUS BROADCASTING, INC.
By:
-------------------------------
(printed)
----------------------------------
Title:
----------------------------
CUMULUS LICENSING CORPORATION
By:
-------------------------------
(printed)
----------------------------------
Title:
----------------------------
CLEARLY SUPERIOR RADIO, LLC
By:
-------------------------------
(printed)
----------------------------------
Title:
----------------------------
3-D COMMUNICATIONS CORPORATION
By:
-------------------------------
(printed)
----------------------------------
Title:
----------------------------
XXXXXX X. XXXXXXXXXX
----------------------------------
-32-
LIST OF OMITTED SCHEDULES AND/OR EXHIBITS:
Ex. A - Form of Letter of Credit
Ex. B - Escrow Ageement
Ex. C - Instrument of Assumption
Ex. D - Post Closing Agreement
Ex. F - Opinion of Seller's Counsel
The preceding schedules and/or exhibits have been omitted from this exhibit.
The Company agrees to provide copies of such schedules and/or exhibits to the
Commission upon request.
33
