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EXHIBIT 2.0
ASSET PURCHASE AGREEMENT
This Agreement ("Agreement") is entered into as of April 2, 1999, by
and between CUMULUS BROADCASTING, INC., a Nevada corporation ("Broadcasting"),
CUMULUS LICENSING CORP., a Nevada corporation ("Licensing), CUMULUS WIRELESS
SERVICES INC., a Nevada corporation ("Wireless") and XXXXXXXX BROADCASTING
COMPANY, INC., an Iowa corporation (the "Seller"). Broadcasting, Licensing and
Wireless are referred to collectively herein as the "Buyers." The Buyers and the
Seller 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 Seller that are used or useful in the operation of radio
Stations WBIZ-AM and WBIZ-FM, licensed to Eau Claire, WI; WMEQ-AM and WMEQ-FM,
licensed to Menomonie, WI; WQRB-FM, licensed to Bloomer, WI; and WATQ-FM,
licensed to Chetek, WI (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 Seller agrees to sell, transfer, convey
and deliver to (i) Licensing, and Licensing agrees to purchase from the Seller,
all of the FCC Licenses listed in Section 2(k) of the disclosure schedule
("Disclosure Schedule"); and (ii) Seller agrees to sell, transfer convey and
deliver to Broadcasting and Wireless, and Broadcasting and Wireless agree to
purchase from the Seller, 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 and Wireless agree 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 Seller not included within the definition of
Assumed Liabilities and assumed by Broadcasting and Wireless, and the Seller
agrees to pay and discharge all Liabilities and obligations of the Seller other
than the Assumed Liabilities.
c. PURCHASE PRICE. The Buyers agree to pay to the Seller,
as consideration for the Acquired Assets, the purchase price (the "Purchase
Price") described in Schedule A to this Agreement, and agrees to make the escrow
deposit (the "Escrow Deposit") in the form and manner described in Schedule A
and more particularly in the xxxxxxx money escrow agreement ("Xxxxxxx Money
Escrow Agreement") attached hereto as Exhibit A. The Purchase Price shall be
allocated among the Acquired Assets in the manner set forth in Schedule B.
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D. CLOSING. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at a mutually agreed location,
commencing at 9:00 a.m. local time within ten (10) business 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
Seller 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
Seller the various certificates, instruments, and documents referred to in
Section 5(b) below; (iii) the Seller 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 Seller (A)
an assumption in the form attached hereto as Exhibit B and (B) such other
instruments of assumption as the Seller and its counsel reasonably may request;
and (v) the Buyers will deliver to the Seller the consideration specified in
Section 1(c) above.
F. POST-CLOSING AGREEMENT. On the Closing Date, the Seller
shall execute, and shall cause its sole shareholder to execute, a Post-closing
Agreement with the Buyers including covenants not to compete with the Buyers in
the markets served by the Stations and agreements to indemnify the Buyers in the
form of Exhibit C attached hereto. A portion of the Purchase Price equal to
Fifty Thousand Dollars ($50,000) shall be paid to the Seller by the Buyers on
the Closing Date as consideration for the agreements set forth in the
Post-closing Agreement.
G. LOCAL MARKETING AGREEMENT. As of the date hereof, the
Parties have executed the Local Marketing Agreement attached as Exhibit D hereto
(the "LMA Agreement"), under which Broadcasting will purchase airtime on the
Stations pending the closing of the transaction contemplated herein.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
The Seller represents and warrants 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, and subject to the operation of the Stations
by Broadcasting during the term of the LMA Agreement.
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A. ORGANIZATION OF THE SELLER. The Seller is a corporation
duly organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation. The Seller does not have any Subsidiaries.
The Seller has the power and authority to own or lease its properties and to
carry on all business activities now conducted by it. The sole shareholder of
the Seller is Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx").
B. AUTHORIZATION OF TRANSACTION. The Seller has full power
and authority to execute and deliver this Agreement and all agreements and
instruments to be executed and delivered by Seller pursuant to this Agreement
(collectively, the "Ancillary Agreements") and to perform its obligations
hereunder and thereunder. Without limiting the generality of the foregoing, the
Board of Directors of the Seller has duly authorized the execution, delivery,
and performance of this Agreement and the Ancillary Agreements by the Seller.
This Agreement and the Ancillary Agreements constitute the valid and legally
binding obligation of the Seller, 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
Seller is subject or any provision of the charter or bylaws of the Seller; or
(ii) except as set forth In Section 2[c] of the Disclosure Schedule, 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 Seller is 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 Application described in Section 4(b) the Seller does 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 Seller has 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, 1996, December
31, 1997, and December 31, 1998 for the Seller; and (ii) unaudited balance
sheets and statements of income, as of and for each month during 1998 and each
month to date in 1999 for the Seller. The Financial Statements have been
prepared in
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conformity with the Seller's 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
Seller and the results of operation of Seller at the dates and for the periods
indicated, and are consistent with the books and records of the Seller (which
books and records are correct and complete). The Financial Statements accurately
state the cash revenues of the Stations for the periods indicated therein, but
do not include revenues attributable to Barter Agreements.
F. EVENTS SUBSEQUENT TO JANUARY 1, 1999. Since January 1,
1999, 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 Stations
since January 1, 1999 (but subject to the operation of the Stations by
Broadcasting during the term of the LMA Agreement):
(i) other than this Agreement, the Seller has 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 Seller has not delayed or postponed
(beyond its normal practice in the Ordinary Course of Business) the
payment of accounts payable and other Liabilities;
(iii) the Seller has not altered its credit and
collection policies or its accounting policies;
(iv) other than in the Ordinary Course of Business,
the Seller has not entered into or terminated any employment
arrangement, employment contract, consulting contract or severance
agreement or collective bargaining agreement, written or oral, or
modified the terms of any existing such contract or agreement;
(v) other than in the Ordinary Course of Business,
there have been no changes and, to Seller's 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 Seller;
(vii) the Seller has not materially altered the
programming, format or call letters of the Stations, or its promotional
and marketing activities;
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(viii)the Seller has 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 Seller has not terminated or received
notice of termination for any syndicated programming; and
(x) the Seller has not committed to any of the
foregoing.
G. TAX MATTERS. The Seller has timely and properly filed
all Tax Returns that it was required to file with respect to the Seller's
operations. All such Tax Returns were correct and complete and properly reflect
the tax liability of the Seller. No Tax deficiencies have been proposed or
assessed against the Seller. All Taxes owed by the Seller with respect to its
operations (whether or not shown on any Tax Return) have been paid. The Seller
has 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 Seller does 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 transmitters, equipment, vehicles and other tangible
personal property used in conducting the operation and business of the Stations.
With exception of certain vehicles the titles to which are in Xxxxxxxx' name,
the Seller owns or leases 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 assets that are subject to leases or purchase
agreements are specifically identified as such in Section 2(h) of the Disclosure
Schedule. At Closing, the Seller shall cause the vehicles in Xxxxxxxx' name to
be conveyed to Broadcasting and/or Wireless as the Buyers may direct.
I. REAL PROPERTY. Section 2(i) of the Disclosure Schedule
lists and describes briefly all Owned Real Estate and real property leased to
the Seller (including, without limitation, complete legal descriptions for all
of Owned Real Estate). The Seller has delivered to the Buyers correct and
complete copies of the Leases. With respect to the Real Estate:
(i) the Seller has good and marketable title to
all of the Owned Real Estate that as of Closing will be free and clear
of all liens, charges, mortgages, security interests, easements,
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;
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(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, except as set forth in
Section 2(i) of the Disclosure Schedule;
(v) none of the Owned Real Estate and to the
Seller's 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 Seller's Knowledge, proposed special
assessments with respect to any of the Real Estate; (ii) pending or, to
the Seller's 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 Seller's Knowledge, threatened
changed in any zoning laws or ordinances which may materially adversely
affect any of the Real Estate or Seller's use thereof;
(vii) as of Closing, the Seller will assign the
Leases and its rights thereunder free of any mortgage, deed of trust,
security interest or similar encumbrance;
(viii)to the Seller's 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 Seller's Knowledge, the owner of each
leased facility has good and marketable title to the underlying parcel
of real property, and Seller's 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 entered into in the Ordinary Course of
Business. The Seller has 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 Seller is not a party to any
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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 Seller.
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 Seller or the Seller's 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 Seller is 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 Seller's Knowledge, the Seller is 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 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 Seller has 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.
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(v) The Seller is 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.
L. INTELLECTUAL PROPERTY. The Seller owns 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 Seller as
presently conducted and as presently proposed to be conducted. Each item of
Intellectual Property owned or used by the Seller 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 by the Buyers on identical
terms and conditions immediately subsequent to the Closing hereunder. The Seller
has not interfered with, infringed upon, misappropriated, or otherwise come into
conflict with any Intellectual Property rights of third parties, and the Seller
has never received any charge, complaint, or notice alleging any such
interference, infringement, misappropriation, or violation. To the Knowledge of
the Seller, no third party has interfered with, infringed upon, misappropriated,
or otherwise come into conflict with any Intellectual Property rights of the
Seller.
M. INSURANCE. Section 2(m) of the Disclosure Schedule sets
forth a complete and accurate description of all Seller's 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 Seller: (i) is subject to any unsatisfied
judgment, order, decree, stipulation, injunction, or charge; or (ii) is a party
or, to the Knowledge of the Seller, 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. Except as otherwise
note in Section 2(n) of the Disclosure Schedule, 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 in
the assets, Liabilities, business, financial condition, operations, results of
operations, or future prospects of the Seller or the Stations taken as a whole.
Except as noted in Section 2(n) of the Disclosure Schedule, the Seller has no
Knowledge of any Basis for any such charge, complaint, action, suit, proceeding,
hearing, or investigation against the Seller.
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 Seller, no key employee or group of employees
has any plans to terminate employment with the Seller. The Seller is not a party
to or bound by any collective bargaining or similar agreement, nor has it
experienced any strikes, grievances, claims of unfair labor practices or other
collective bargaining disputes. The Seller has no Knowledge of any
organizational effort presently being made or threatened by or
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on behalf of any labor union with respect to the employees of the Seller. The
Seller has no Knowledge of any Basis for any claim by past or current employees
of the Seller or applicants for employment that the Seller or its management has
discriminated based on each individuals 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 Seller maintains or to which
the Seller contributes or is required to contribute for the benefit of any
current or former employee of the Seller 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 Seller does 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 Seller, 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 Seller is, 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 Seller has no Liability
(and to Seller's Knowledge there is no Basis related to the past or
present operations of the Seller or its predecessors for any present or
future Liability) under any Environmental Law. The Seller has no
Liability (and to Seller's Knowledge there is no Basis for any present
or future charge, complaint, action, suit, proceeding, hearing,
investigation, claim, or demand against the Seller 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 thereof) concerning employee
health and safety, or for any illness of or personal injury to any
employee.
(ii) The Seller has 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
Stations and the Acquired Assets are free of asbestos, PCB's, methylene
chloride, trichloroethylene, 1, 2-trans-
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dichloroethylene, dioxins, dibenzofurans, and Extremely Hazardous
Substances. To the Seller's Knowledge, 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
are or, to the Seller's Knowledge, have ever been located at, on or
under the Real Estate. The Seller has delivered to the Buyers a
complete copy of all environmental claims, reports, studies, compliance
actions or the like of the Seller or which are available to the Seller
with respect to any of the Real Estate or any of the Acquired Assets.
R. LEGAL COMPLIANCE. The Seller has 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
Seller has 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
Stations in excess of $1000, and the amount to be paid to the Seller therefor.
T. BROKERS' FEES. Other than the fee payable to Xxxxxx
Xxxxxxx and Media Services Group, Inc., which shall be the exclusive
responsibility of Seller, the Seller has 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 Stations,
whether accrued, absolute, contingent or otherwise including, without
limitation, guaranties by the Seller 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, 1999.
V. DISCLOSURE. The representations and warranties contained
in this Section 2 do not contain any untrue statement of a material fact or omit
to state any material 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 Seller 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, Licensing and
Wireless are corporations duly organized, validly existing, and in good standing
under the laws of Nevada.
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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 Seller
could become liable or obligated.
E. FCC QUALIFICATIONS. Licensing is legally, financially
and otherwise qualified to be the assignee of the FCC Licenses under the
Communications Act of 1934 and the rules, regulations and policies of the FCC.
4. PRE-CLOSING COVENANTS.
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 Seller and the Buyers shall jointly
file with the FCC an application for assignment of the FCC Licenses, permits and
authorizations pertaining to the Stations from the Seller to Licensing (the
"Assignment Application"). The costs of the FCC filing fees in
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connection with the Assignment Application shall be divided equally between the
Parties. Each party shall pay its own attorneys' fees. The Seller 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
Seller 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
Stations 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
Seller 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 Seller, and at
mutually agreeable times, the Seller will permit the Buyers to meet with its
employees prior to the LMA Effective Date. The Buyers may, at their option,
extend offers of employment to all or any of the Seller's employees effective on
the LMA Effective Date. From and after the execution of this Agreement, the
Seller shall use its best efforts to assist Buyers in retaining those employees
of the Stations which the Buyers wish to hire in connection with the operation
of the Stations by the Buyers subsequent to the LMA Effective Date, and the
Seller will not take any action to preclude or discourage any of the Seller's
employees from accepting any offer of employment extended by the Buyers.
D. NOTICES AND CONSENTS. The Seller will give all notices
to third parties and shall have obtained all third party consents that the
Buyers reasonably may request. The Parties have determined that no notification
with respect to this Agreement is required to be filed the Federal Trade
Commission and the Antitrust Division of the United States Department of Justice
under the Xxxx-Xxxxx-Xxxxxx Act and each will provide such documentation as
reasonably necessary to demonstrate no such notification need be filed. 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
authorizations, consents, and approvals of governments, governmental agencies,
and third parties that it may be required to give, make, or obtain.
E. ADVERTISING OBLIGATIONS. An adjustment to the Purchase
Price for the value of trade time and goods and services shall be made at the
Closing as follows: on all agreements or arrangements pursuant to which
advertising is exchanged for goods and services ("Barter Agreements") for which
an obligation to broadcast advertising time remains, Buyer shall be entitled to
an adjustment in their favor equal to the aggregate value of the advertising
time which remains to be broadcast as of the LMA Effective Date to the extent
that such value exceeds the aggregate value of goods yet to be received and
services yet to be used by more than $20,000 in the aggregate for all Barter
Agreements. The amount to be attributed to the value of remaining
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broadcast advertising time and goods and services hereunder shall be the amount
specified in the Barter Agreement in question, as established at the time the
Barter Agreement was entered into. At the LMA Effective Date, Seller shall
deliver a reconciliation of the Barter Agreements as of the LMA Effective Date.
In the event of any dispute between the parties as to adjustments under this
Section 4(e), the amounts not in dispute shall nonetheless be paid and adjusted
for at the closing and such disputes shall be promptly presented for resolution
to an independent certified public accountant mutually acceptable to the
parties. The accountant's resolution of the dispute shall be final and binding
on the parties and a judgment may be entered thereon, provided, however, that
any such accountant shall have no authority to assess damages or award
attorney's fees or costs. The fees and expenses of such accountant shall be paid
one-half by the Seller and one-half by the Buyer.
F. OPERATING STATEMENTS. Prior to the Effective Date of the
LMA, the Seller shall deliver to the Buyer, for the Buyer's informational
purposes only, monthly unaudited statements of operating revenues and operating
expenses of the Stations with ten (10) days after each such statement is
prepared by or for the Company or the Seller. The Seller shall provide to the
Buyer such written or oral sales, inventory, and pacing reports as Seller may
have available and Buyer may reasonably request.
G. CONTRACTS. The Seller 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 Seller 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 STATIONS. Subject to the operation of the
Stations by Broadcasting under the LMA Agreement, the Seller will not engage in
any practice, take any action, or enter into any transaction outside the
Ordinary Course of Business. The Seller 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 Seller 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. Prior to the LMA Effective Date,
the Seller 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 STATIONS AND THE ACQUIRED ASSETS. The
Seller 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.
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K. FULL ACCESS AND CONSULTATION. Prior to the LMA Effective
Date, the Seller 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 Seller.
The Seller will consult with the Buyers' management with a view to informing
Buyers' management as to the operations, management and business of the
Stations.
L. NOTICE OF DEVELOPMENTS. The Seller 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 Seller to perform hereunder.
M. EXCLUSIVITY. The Seller 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 Seller,
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 Seller 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 (i) 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 Seller, 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 Real Estate, a current Phase I environmental site
assessment from an environmental consultant or engineer reasonably satisfactory
to the Seller which does not indicate that the Seller 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 remedied or
investigated or any contamination on the site
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assessed. If necessary to obtain the leasehold title insurance referred to in
Subsection (i) of this Section 4(n), the Seller will use its best commercially
reasonable efforts to amend the Leases with respect to the transmitter sites for
WMEQ-FM and WATQ to include complete legal descriptions of the land leased. The
Buyers and Seller will each pay one-half (1/2) the costs of these title
policies, Surveys, and environmental assessments.
O. CONTROL OF STATIONS. 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,
supervise, or direct, the operation of the Stations, and such operation shall be
the sole responsibility of and in the control of the Seller.
P. RISK OF LOSS. The risk of loss, damage, or destruction
to any of the Acquired Assets shall remain with the Seller until the Closing. In
the event of any such loss, damage, or destruction the Seller 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 Seller will, at Seller's 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 Seller's notice to the Buyers and the Buyers determine that the Seller's
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 Seller's notice to the Buyers, in which case either party
may terminate this Agreement; or
(iii) the Buyers may choose to accept the Acquired
Asset in their "then" condition, together with the Seller's 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
Seller with respect thereto plus an amount equal to the amount of any
deductible or self-insurance maintained by Seller 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.
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 Seller shall have performed and complied
with all of its covenants hereunder in all respects through the
Closing;
(iii) the Seller 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(n) 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 Seller shall have delivered to the Buyers
a certificate (without qualification as to knowledge or materiality or
otherwise) 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 and the Buyers shall have
received all governmental approvals required to transfer all other
authorizations and such other consents and approvals of governments and
governmental agencies set forth in the Disclosure Schedule;
(vii) the relevant parties shall have entered into
the Post-closing Agreement;
(viii)the Buyers shall have received from counsel to
the Seller an opinion with respect to the matters set forth in Exhibit
E attached hereto, addressed to the Buyers and its lender and dated as
of the Closing Date; and
(ix) all actions to be taken by the Seller 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 Buyers.
B. CONDITIONS TO OBLIGATION OF THE SELLER. The obligation
of the Seller 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 Seller
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 Post-closing 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, instruments, and other documents
required to effect the transactions contemplated hereby will be
reasonably satisfactory in form and substance to the Seller.
6. POST-CLOSING COVENANTS.
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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. Subject to the provisions of the LMA
Agreement and subject to the provisions of Section 6[c] of the Disclosure
Schedule with respect to the "B-95/WMEQ Spring Home and Garden Show," 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 Seller 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 Seller
and the Buyers as of the Closing Date unless the LMA Agreement specifies that a
particular item shall be prorated as of the LMA Effective Date. In addition, all
commissions payable with respect to the accounts receivable of the Seller
(whether due before or after Closing) shall be solely for the account and
responsibility of the Seller. 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 Seller
and one-half (1/2) by the Buyer.
D. 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
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obtain such consent, the Seller 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 Seller will
cooperate with Buyers in any lawful and economically feasible arrangement to
provide that the Buyers shall receive the Seller's interest in the benefits
under any such Assumed Contract, including performance by the Seller 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.
E. ACCESS FOR AUDITS. Seller acknowledges the Buyers are
subsidiaries of a publicly traded company and as such may have responsibilities
under SEC rules and regulations to obtain audits of the Stations for the period
prior to the date of this Agreement. Seller agrees to use best efforts, before
or after Closing to prepare such audits at Buyers' request and at Buyers'
expense, and to provide such access to its historical records as may be
reasonably necessary for Buyers to comply with their financial reporting
obligations.
7. REMEDIES FOR BREACHES OF THIS AGREEMENT.
A. SURVIVAL. All of the representations and warranties of
the Seller contained in Section 2 of this Agreement (other than the
representations and warranties of the Seller contained in Sections 2(a), 2(b),
2(c), and 2(d) hereof or relating to the Seller's title to the Acquired Assets)
shall survive the Closing and continue in full force and effect for a period
until 90 days after the applicable statute of limitations has expired with
respect to any claim by the Buyers based on a claim or action by a third party
and for a period of eighteen (18) months following Closing with respect to any
claim by the Buyers not based on a claim or action by a third party. All of the
other representations and warranties of Seller (including the representations
and warranties Seller contained in Sections 2(a), 2(b), 2(c), and 2(d) hereof or
relating to the Seller's title to the Acquired Assets) and all representations
and warranties of the Buyers shall survive the Closing and continue in full
force and effect forever thereafter.
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 Seller agrees 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
Seller's representations or warranties, and covenants contained in this
Agreement or in any Ancillary Agreement executed and/or delivered by
the Seller (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 Seller contained herein or in any Ancillary
Agreement;
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(iii) any Liability of the Seller 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.
C. INDEMNIFICATION PROVISIONS FOR THE BENEFIT OF THE
SELLER. 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 Seller from and against the entirety of any Adverse Consequences the Seller
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 Seller makes 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(n) 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 notwithstanding 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 Seller
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 Seller 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 Seller shall be entitled to receive from the Buyers 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 Seller 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 indemnification against any other Party (the
"Indemnifying Party") under this Section 7, then the
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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
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 Indemnified Party,
in the aggregate from all indemnifiable events shall exceed Ten Thousand Dollars
($10,000) and indemnification shall be made by the indemnifying party only to
the extent of such excess over Ten Thousand Dollars ($10,000); 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 Seller to third parties from
and after the Closing Date assumed by the Buyer under the terms of this
Agreement; (ii) the obligation of the Seller to pay and discharge any Liability
to third parties not assumed by the Buyer under the terms of this Agreement,
(iii) the Seller's obligation to deliver clear title to the Acquired Assets, or
(iv) the Seller's entitlement to the Xxxxxxx Money Deposit as liquidated damages
under the circumstances set forth in Section 7(e).
8. DEFINITIONS.
"ACQUIRED ASSETS" means all right, title, and interest in and to all of
the assets of the Seller, 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) real property, leaseholds and other interests of any kind
therein, improvements, fixtures, and fittings thereon (such as towers and
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antennae), and easements, rights-of-way, and other appurtenances thereto), but
excluding the land and building at 000 Xxxxxxxx Xxxxxx in Menomonie, Wisconsin,
and the former WMEQ-FM tower site located 1.8 miles southeast of Menomonie,
which is not currently being used by the Stations; (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 Stations; (e) Assumed
Contracts, indentures, Security Interests, guaranties, other similar
arrangements, and rights thereunder; (f) call letters of the Stations, jingles,
logos, slogans, and business goodwill of the Stations; (g) claims, deposits
(excluding those of the Seller with respect to Wisconsin unemployment
insurance), 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(j) of the
Disclosure Schedule as those to be assumed by Broadcasting.
"ASSUMED LIABILITIES" means (a) obligations of the Seller 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.
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"BARTER AGREEMENT" has the meaning set forth in Section 4(e) above.
"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.
"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.
"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,
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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 Xxxxxx Xxxxxxx.
"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 Stations.
"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(f) above.
"INDEMNIFYING PARTY" has the meaning set forth in Section 7(f) 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,
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programming materials, copyrights and registrations and applications for
registration thereof, (d) 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.
"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, including the tower space leases in which the Seller is
the lessor, but excluding the lease for the former WMEQ-FM tower site, located
1.8 miles southeast of Menomonie , which lease is listed as a Retained Asset.
"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 any liquidated damages that
become due pursuant to Section 7(e) above.
"LICENSES" means all FCC and other governmental licenses, franchises,
approvals, certificates, authorizations and rights of the Seller with respect to
the operations of the Stations 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, but excluding the land and building
at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx, which real property is listed as a
Retained Asset.
"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
owners in the form attached hereto as Exhibit C.
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"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,
excluding the real property interests identified as Retained Assets.
"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; (iv) Cash; (v) the deposit
of the Seller with respect to Wisconsin unemployment insurance; (vi) the land
and building located at 000 Xxxxxxxx Xxxxxx in Menomonie, (vii) the former
WMEQ-FM tower site located 1.8 miles southeast of Menomonie, which is not
currently being used by the Stations and (viii) the tower located on the
above-referenced former WMEQ-FM tower site.
"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 Stations 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.
"SELLER" has the meaning set forth in the preface above.
"STATIONS" means the radio broadcast stations WBIZ-AM and WBIZ-FM,
licensed to Eau Claire, WI; WMEQ-AM and WMEQ-FM, licensed to Menomonie, WI;
WQRB-FM, licensed to Bloomer, WI; and WATQ-FM, licensed to Chetek, WI.
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"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.
9. TERMINATION.
A. TERMINATION OF AGREEMENT. Certain of the Parties may
terminate this Agreement as provided below:
(i) the Buyers and the Seller 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 Seller at any time prior to the Closing in
the event the Seller is 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 Seller from
the Buyers;
(iii) the Seller 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
Seller;
(iv) the Buyers may terminate this Agreement by
giving written notice to the Seller at any time prior to the Closing if
the Closing shall not have occurred on or before the 360th day
following the date of this Agreement by reason of the failure of any
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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 Seller 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 360th 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 Seller itself breaching any representation,
warranty, or covenant contained in this Agreement);
(vi) the Buyers or the Seller may terminate this
Agreement if any Assignment Application is denied by Final Order.
B. EFFECT OF TERMINATION. If any Party terminates this
Agreement pursuant to Section 9(a) 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.
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 Seller 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
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rights under the warranties and representations of the Seller 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:
Xxxxxxxx Broadcasting Company, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
Copy to:
Reddy, Xxxxxx and XxXxxxxxx
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx XxXxxxxxx, Esquire
Fax: (000) 000-0000
(which copy shall not constitute notice to Seller)
If to the Buyers:
Cumulus Broadcasting, Inc.
Cumulus Licensing Corp.
Cumulus Wireless Services Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
Fax: (000) 000-0000
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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.
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 Wisconsin.
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 Seller, 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(n) with respect to Surveys, title commitments and
environmental audits. The Seller and the Buyers will each pay one-half (1/2)
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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.
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 or federal court sitting in Eau Claire,
Wisconsin 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.
* * * * *
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on as of the
date first above written.
CUMULUS BROADCASTING, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxx
Executive Chairman
CUMULUS LICENSING CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxx
Executive Chairman
CUMULUS WIRELESS SERVICES INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxx
Executive Chairman
XXXXXXXX BROADCASTING COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx (printed)
-----------------------------------
Title: President
---------------------------------
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